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FOR PUBLICATION
ATTORNEY FOR APPELLANT: RANDAL M. KLEZMER Indianapolis, Indiana ATTORNEYS FOR APPELLEE: ALAN L. McLAUGHLIN SUSAN W. KLINE Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
RUSSELL D. PURDY, Appellant-Petitioner, vs. ) ) ) ) ) ) ) ) ) )

No. 49A05-412-CV-642

WRIGHT TREE SERVICE, INC., Appellee-Respondent.

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Thomas J. Carroll, Judge Cause No. 49D06-0209-CT-001591

OCTOBER 4, 2005 OPINION - FOR PUBLICATION RATLIFF, Senior Judge

STATEMENT OF THE CASE Plaintiff-Appellant Russell Purdy appeals the trial court's entry of summary judgment in favor of his previous employer, Defendant-Appellee Wright Tree Service, Inc. (Wright), on his complaint for retaliatory discharge. We affirm. ISSUE Purdy presents one issue for our review, which we restate as: whether the trial court properly granted summary judgment in favor of Wright. FACTS AND PROCEDURAL HISTORY Purdy was employed by Wright. In May 2002, Purdy was injured on the job, and reported the injury to Michael Williams, his crew foreman. However, based upon

comments made by Williams, Purdy waited to make any further report or seek medical attention. After several days, Purdy was still in pain, and he asked Williams to inform the general foreman, Paul Forkell, that he needed medical attention. Purdy was sent for medical treatment and was restricted from returning to work. Wright placed Purdy on leave pursuant to the Family Medical Leave Act (FMLA). When the 12-week FMLA period had expired and Purdy was unable to return to work, he was terminated. Purdy filed a claim against Wright for retaliatory discharge, and Wright filed a motion for summary judgment. The trial court granted Wright's motion, and this appeal ensued. DISCUSSION AND DECISION Purdy contends that the trial court erred by granting summary judgment in favor of Wright with regard to Purdy's claim for retaliatory discharge. Specifically, Purdy asserts 2

that summary judgment was improper because the evidence reveals a genuine issue of material fact as to whether Wright has an ascertainable, neutrally applied absenteeism policy; whether that policy, if it exists, is merely a device to restrain Wright employees from filing worker's compensation claims; and whether the remarks of a Wright foreman constitute an impermissible threat of discharge. Our standard of review for a trial court's grant or denial of a motion for summary judgment is well settled. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Illiana Surgery & Medical Center, LLC. v. STG Funding, Inc., 824 N.E.2d 388, 396 (Ind. Ct. App. 2005). Appellate review of a summary

judgment motion is limited to those materials designated to the trial court. 1 Illiana, 824 N.E.2d at 396. We do not reweigh the designated evidence, Metal Working Lubricants Co. v. Indianapolis Water Co., 746 N.E.2d 352, 355 (Ind. Ct. App. 2001); rather, all facts and reasonable inferences drawn therefrom are construed in favor of the nonmovant. Illiana Surgery, 824 N.E.2d at 396. A grant of summary judgment may be affirmed upon any theory supported by the designated evidence. Metal Working, 746 N.E.2d at 355. Further, we carefully review the granting of summary judgment to ensure that a party was not improperly denied its day in court. Illiana Surgery, 824 N.E.2d at 396.

1

On a practical note to these litigants in particular and all practicing appellate counsel in general: because this Court reviews those materials specifically designated to the trial court, counsel should include in its materials on appeal all the materials designated to the trial court.

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In Indiana, if there is no definite or ascertainable term of employment, the employment is at-will, and the employer may discharge the employee at any time with or without cause. Coutee v. Lafayette Neighborhood Housing Services, Inc., 792 N.E.2d 907, 911 (Ind. Ct. App. 2003), trans. denied, 812 N.E.2d 794 (Ind. 2004). There are three exceptions to the employment-at-will doctrine, one of which is a public policy exception. See id. (listing the three exceptions to employment-at-will doctrine). The public policy exception was established by our supreme court in Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973). There, the court held that when an employee is discharged solely for exercising a statutorily conferred right, an exception to the general rule of at-will employment is recognized. See id. at 428. The statutory right involved in both Frampton and the instant case is the right to file a claim for worker's compensation. The Frampton court established that an action for retaliatory discharge exists when an employee is discharged for filing a worker's compensation claim. The court further stated that the issue of retaliation is a question for the trier of fact. See id.; see also Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1261 (Ind. Ct. App. 2002). In order to be successful 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. See Smith v. Electrical System Div. of Bristol Corp., 557 N.E.2d 711, 712 (Ind. Ct. App. 1990); see also Frampton, 297 N.E.2d at 428. We have further explained that use of the word "solely" by the Frampton court means only that any and all reasons for the discharge must be unlawful in order to sustain the claim for retaliatory discharge. 4

See Markley Enterprises, Inc. v. Grover, 716 N.E.2d 559, 566 (Ind. Ct. App. 1999); Dale v. J.G. Bowers, Inc., 709 N.E.2d 366, 369 (Ind. Ct. App. 1999). Additionally, where retaliation is at issue, summary judgment is only appropriate when the evidence is such that no reasonable trier of fact could conclude that the discharge was caused by a prohibited retaliation. Powdertech, 776 N.E.2d at 1262. Thus, to survive a motion for summary judgment in a Frampton case, an employee must show more than a filing of a worker's compensation claim and the discharge itself. Id. 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. Id. 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. Id. This Court has recently outlined the three steps of a retaliatory discharge claim. First, the employee must prove, by a preponderance of the evidence, a prima facie case of discrimination. Powdertech, 776 N.E.2d at 1262 (citing Dale, 709 N.E.2d at 370 n.3). The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the discharge. Id. Finally, if the employer carries that burden, the employee can prove, by a preponderance of the evidence, that the reason offered by the employer is a pretext. Id. This can be done by showing, for example, that the employer's proffered reason is factually baseless, is not the actual motivation for the discharge, or is insufficient to motivate the discharge. Id.

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With these factors in mind, we review Purdy's claim of retaliatory discharge. Purdy alleged that he had been discharged from his employment at Wright in retaliation for his filing of a worker's compensation claim. Wright responded that Purdy was discharged because he had exhausted all available leave but remained unable to work because he did not yet have a full medical work release. 2 By so doing, Wright fulfilled its burden to articulate a legitimate, non-discriminatory reason for the discharge. The burden then shifted to Purdy to establish that the explanation offered by Wright is a pretext. In order to establish that Wright's explanation is merely a pretext, Purdy designated the absenteeism policy as set forth in Wright's Employee Handbook. The Employee Handbook states as follows: Absenteeism Policy In order to keep the flow of work going smoothly and provide stability of our work force to the Customer, Wright Tree Service has an Absenteeism Policy, which applies to all personnel. The policy is as follows: Continued absenteeism or lateness for available work will result in disciplinary action or discharge.

Any employee that is unable to report for work on any given work day must notify his or her General Foreman two (2) hours prior to crew starting time. The first violation will result in a warning letter. Continued violations will result in disciplinary action or discharge.

2

When Wright discharged him, Purdy had exhausted the twelve-week FMLA leave to which he was entitled. The FMLA requires covered employers to provide up to twelve weeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons. See generally 29 U.S.C.

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