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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: MATTHEW M. GOLITKO Bolinger Golitko, PC Kokomo, Indiana

ATTORNEYS FOR APPELLEE: JOHN T. NEIGHBOURS CRAIG M. BOROWSKI Baker & Daniels LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CHRISTOPHER WILSON, Appellant-Plaintiff, vs. CHRONICLE TRIBUNE, Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 27A05-0703-CV-122

APPEAL FROM THE GRANT SUPERIOR COURT I The Honorable Jeffrey D. Todd, Judge Cause No. 27D01-0410-CT-641

November 20, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

RILEY, Judge

STATEMENT OF THE CASE Appellant-Defendant, Christopher Wilson (Wilson), appeals the trial court's entry of summary judgment in favor of Appellee-Defendant, Chronicle Tribune (Chronicle). We affirm. ISSUE Wilson raises three issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred in granting Chronicle's Motion for Summary Judgment, thereby determining Wilson's discharge from Chronicle was not retaliatory in nature. FACTS AND PROCEDURAL HISTORY In April 2002, Wilson was hired by Chronicle as a press operator. In September 2002, Wilson's employment was briefly interrupted when Chronicle lost a commercial printing job and as a result needed to eliminate a press operator position. Because Wilson had the least seniority in his position, he was terminated. However, another press operator resigned shortly thereafter and Wilson was hired back two weeks after his termination to fill the vacancy. In October 2002, Wilson suffered a back injury for which he filed a worker's compensation claim. Wilson missed several weeks of work due to his injury and received worker's compensation benefits while he was off work. In January 2003, Wilson was released to return to work without restrictions. He returned to work as a press operator, with the same rate of pay and the same benefits he had prior to his injury. In February 2003, Chronicle decided that due to losing the commercial printing job in 2

September 2002, it needed to restructure its business operations and reduce its workforce. In determining which employees would be discharged, Chronicle first looked at its employees' seniority. Still, Wilson was the least senior press operator. Thus, once again, Chronicle informed Wilson his employment would be terminated, effective March 15, 2003. Except, again, another press operator resigned. Wilson was not terminated as expected and continued to work for Chronicle as a press operator. In June 2003, Wilson fell off a ladder at work and injured his ribs. As a result, he filed a worker's compensation claim and received worker's compensation benefits. On July 18, 2003, Chronicle held a meeting with Wilson's department and informed them that as part of the ongoing restructuring at Chronicle more terminations were eminent. That same day, Wilson was informed his employment would be terminated. In total, approximately forty of Chronicle's two hundred employees were terminated due to the loss of the commercial printing business and subsequent restructuring. At least thirty of the forty employees' whose employment was terminated had never filed a worker's compensation claim during their tenure with Chronicle. Additionally, at least ten Chronicle employees who had filed worker's compensation claims retained their employment with Chronicle. In Wilson's department, several other employees were terminated, among whom some had and others had not filed worker's compensation claims. After the terminations, one press operator who was not terminated voluntarily resigned and the position was offered to a

former employee who, like Wilson, had previously filed and been compensated for worker's compensation claims. 3

On January 25, 2005, Wilson filed a complaint for damages alleging retaliatory discharge. On August 7, 2006, Chronicle filed a Motion for Summary Judgment, together with its Brief in Support of Motion for Summary Judgment. On November 3, 2006, a hearing was held on Chronicle's Motion for Summary Judgment after which the trial court took the matter under advisement. On November 9, 2006, the trial court entered its Order granting Chronicle's Motion for Summary Judgment. Wilson now appeals. Additional facts will be provided as necessary. DISCUSSION AND DECISION Wilson contends the trial court improperly granted summary judgment in favor of Chronicle. Specifically, Wilson avers that summary judgment was improper because the reason for his termination is unclear and therefore constitutes a genuine issue of material fact to be determined by a finder of fact. 1 I. Standard of Review Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. Nat'l Mut. Ins. Co. v. Curtis, 867 N.E.2d 631, 634 (Ind. Ct. App. 2007). Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. In doing so, we consider all of the designated
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Wilson argues the fact finder in this case should be a jury. However, Wilson never filed the proper demand for a jury trial pursuant to Indiana Trial Rule 38. Thus, Wilson has waived his opportunity to have this issue heard by a jury, leaving the trial court to act as the fact finder.

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evidence in the light most favorable to the non-moving party. Id. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. See Ayres v. Indian Heights Volunteer Fire Dep't, Inc., 493 N.E.2d 1229, 1234 (Ind. 1986). We note in the present case that the trial court did not enter findings of fact and conclusions of law. Special findings are not required in summary judgment proceedings and are not binding on appeal. Nat'l Mut. Ins. Co., 867 N.E.2d at 634. However, such findings offer this court valuable insight into the trial court's rationale for its judgment and facilitate appellate review. Id. II. Retaliatory Discharge Wilson contends his discharge was retaliatory. Generally, Indiana follows the employment-at-will doctrine, which permits both the employer and the employee to terminate the employment at any time for "good reason, bad reason, or no reason at all." Meyers v. Meyers, 861 N.E.2d 704, 706 (Ind. 2007) (quoting Montgomery v. Bd. of Trustees of Purdue Univ., 849 N.E.2d 1120, 1128 (Ind. 2006)). On rare occasions narrow exceptions have been found. Meyers, 861 N.E.2d at 706. Retaliation theories were first recognized in Indiana in Frampton v. Cent. Indiana Gas Co., 297 N.E.2d 425 (Ind. 1973), where our supreme court held: "[U]nder ordinary circumstances, an employee at[-]will may be discharged without cause. However, when an employee is discharged solely for exercising a statutorily conferred right[,] an exception to the general rule must be recognized." M.C. Welding and

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Machining Co. v. Kotwa, 845 N.E.2d 188, 192 (Ind. Ct. App. 2006) (quoting Frampton, 297 N.E.2d at 428). Specifically, Frampton concerned retaliation for filing a claim pursuant to the Indiana Workmen's Compensation Act. The Frampton court concluded, "an employee who alleges he or she was discharged in retaliation for filing a claim pursuant to the Indiana Workmen's Compensation Act . . . or the Indiana Workmen's Occupational Diseases Act . . . has stated a claim upon which relief can be granted." Frampton, 297 N.E.2d at 428. One of the reasons for the Frampton rule is to prevent the employer from terminating the employment of one employee in a manner that sends a message to other employees that they will lose their job if they exercise a similar, statutory right. Powedertech, Inc. v. Joganic, 776 N.E.2d 1251, 1261 (Ind. Ct. App. 2002). To succeed on a claim for retaliatory discharge, a plaintiff must demonstrate that his or her discharge was solely in retaliation for the exercise of a statutory right. Prudy v. Wright Tree Service, Inc., 835 N.E.2d 209, 212 (Ind. Ct. App. 2005), trans. denied. We have previously explained that the word "solely" means only that any and all reasons for the discharge must be unlawful to sustain the claim for retaliatory discharge. Id. Accordingly, the employee must present evidence that directly or indirectly supplies the necessary inference of causation between the filing of a claim and the termination, such as proximity in time or evidence that the employer's asserted lawful reason for discharge is a pretext. Powdertech, 776 N.E.2d at 1262. An employee can prove pretext by showing: (1) the employer's stated reason for discharge has no basis in fact; (2) although based on fact, the stated reason was not the actual reason for his discharge; or (3) the stated reason was 6

insufficient to warrant the discharge. Id. III. Proximity in Time Wilson first argues proximity in time exists between when he returned to work after his worker's compensation related injury and his termination. Wilson was injured in October 2002. He was released back to work without restrictions in January 2003. Then, two months later, in March 2003, he was notified of his pending termination but was not actually terminated until July 18, 2003. Wilson alleges that because the trial court focused on Chronicle's need to reduce its workforce, the trial court agrees proximity in time exists between Wilson filing his claim and his termination. Conversely, Chronicle argues that (1) no negative inference can be drawn between the date Wilson returned to work and his termination; rather, Chronicle proposes the relevant date for timing purposes is the date Wilson filed his worker's compensation claim and the day he was terminated, and (2) the nine months that passed between Wilson's filing his worker's compensation claim and his actual termination constituted a substantial passage of time and negates any argument relative to timing. Chronicle directs our attention to Frampton, 297 N.E.2d at 428 and Markley Enter., Inc. v. Grover, 716 N.E.2d 559, 565 (Ind. Ct. App. 1999), for support of its contention that Indiana courts have decided worker's compensation issues involving temporal proximity are based on the date an employee files a claim for worker's compensation, rather than the date an employee returns to work, with relation to the employee's termination. In Purdy v. Wright Tree Serv., Inc., 835 N.E.2d 209, 213 (Ind. Ct. App. 2005), trans. denied, we stated: [T]o survive a motion for summary judgment in a Frampton case, an employee 7

must show more than a filing of a worker's compensation claim and the discharge itself. The employee must present evidence that directly or indirectly supplies the necessary inference of causation between the filing of a worker's compensation claim and the termination. For example, evidence of the proximity in time between the filing of the claim and the termination, or evidence that the employer's asserted lawful reason for discharge is a pretext can provide the necessary inference of causation needed to rebut a summary judgment motion. (Internal citations omitted). Thus, the relevant date for timing purposes is the date an employee files his or her worker's compensation claim and the date he or she is terminated. In the instant case, Wilson filed his worker's compensation claim in October 2002, returned to work without restrictions in March 2003, and was ultimately terminated in July 2003. We have previously reasoned, "[a]lthough a closer temporal connection between the two events often supports an inference of retaliatory intent, a six month lapse has also sufficed when the other evidence before the court calls into doubt the employer's reasons for discharge." Markley, 716 N.E.2d 559, 565 (Ind. Ct. App. 1999) (citing Pepkowski v. Life of Indiana Ins. Co., 535 N.E.2d 114, 1168 (Ind. 1989)). Therefore, because proximity in time alone is not necessarily evidence of a retaliatory discharge, we find it necessary to delve further into the parties' designated evidence for an articulated reason that establishes, as a matter of law, Chronicle's retaliatory intent when it discharged Wilson. IV. Pretext Our review of the record reveals ample evidence that Wilson's discharge was not retaliatory. Wilson's employment was originally terminated due to Chronicle losing a commercial printing job in September 2002, a month before he ever filed a worker's compensation claim. In both September 2002 and March 2003, Wilson was told press

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operator positions were being terminated because of Chronicle's need to downsize its workforce due to loosing a commercial printing job and the need for restructuring. Chronicle's stated reason for terminating Wilson was simply seniority; he had the least seniority of all press operators by more than ten years. Additionally, the evidence establishes that of the forty people terminated in Chronicle's restructuring at least thirty of the forty employees had never filed a worker's compensation claim during their tenure. Moreover, at least ten employees who were not terminated had filed worker's compensation claims. Lastly, the record indicates that after the terminations, a press operator, who was not terminated, voluntarily resigned and Chronicle offered the position to a former press operator who had previously filed a worker's compensation claim. Thus, we find Wilson has failed to show that he was discharged "solely" for filing the worker's compensation claim. Chronicle has not only alleged an independent reason for terminating Wilson's employment based on seniority, but Chronicle's terminations due to loosing a commercial printing job and the need to restructure their business operations was not merely a pretextual cover for the retaliatory discharge of Wilson. The designated evidence, when viewed in the light most favorable to

Wilson, does not permit an inference that Chronicle's stated reason for discharging Wilson was merely a pretext. CONCLUSION Based on the foregoing, we conclude the trial court did not err in granting Chronicle's Motion for Summary Judgment, thereby determining as a matter of law Wilson's discharge from Chronicle was not retaliatory in nature. 9

Affirmed. BAKER, C.J., and SHARPNACK, J., concur.

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