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Public Policy Protects Witnesses from Being Fired; Perkins v. Memorial Hospital of South Bend

On Behalf of | Jan 10, 2023 | Blog

Courts don’t want to put impediments in the way of witness testimony. But Indiana’s courts also do not want to interfere with the at-will employment doctrine. This case is about the places where these priorities conflict.

Perkins was employed by Memorial Hospital as a police officer in the hospital police department. He was an at-will employee.

One of Perkins’ former coworkers, Bradley, was injured on the job. In May 2015, Perkins left work early to testify at a hearing on Bradley’s unemployment benefits. Perkins was told that a subpoena would be waiting for him at the hearing, and Bradley’s counsel had requested a subpoena for Perkins. But when Perkins appeared at the hearing, the hearing officer told him that a subpoena wasn’t needed and did not give him one. Perkins did not tell anyone at the hospital that he was attending the hearing. But his supervisor, Whitfield, suspected that he was. So Whitfield drove to the unemployment office and saw Perkins’ vehicle parked outside. Whitfield and an HR manager then listened to the recording of the hearing.

The next month, a cashier reported to Whitfield that Perkins stole gravy from the cafeteria. Although Perkins paid for his omelet, a bottle of water, and a biscuit, he did not tell the cashier that he ladled gravy over his biscuit. According to Memorial, Perkins did not open his Styrofoam container as the signs in the cafeteria instruct patrons to do when they pay the cashier. Memorial then fired Perkins.

Memorial maintained that it fired Perkins for stealing the gravy, but Perkins (who had no prior disciplinary complaints) thought that his termination was in retaliation for testifying at the unemployment hearing. Perkins filed suit.

Memorial moved for summary judgment, arguing that the public policy exception to the employment at-will did not apply because Perkins did not get a paper subpoena. The trial court granted that motion, the Court of Appeals affirmed, and the Supreme Court granted transfer.

For the purposes of summary judgment, the parties accepted as true that Perkins was fired in retaliation for testimony at the unemployment hearing. Therefore, the Court focused on whether Perkins could be fired for this testimony.

The Court has only recognized three exceptions to the employment at-will doctrine, one of which is a “public policy” exception, which “protects from termination an employee exercising a clear statutory right or obeying a legal duty.” But there is no duty to testify at an unemployment hearing absent a subpoena, which Memorial argued left Perkins outside the protections of this exception. The Court disagreed because of the circumstances in this case.

The Court first discussed the legal context within which this situation arose.

In sum, even absent an explicit statutory protection, in the context of an unemployment hearing, a witness first has a clear duty to cooperate with service of process from the moment he first believes he is being served with a subpoena. Second, once a witness has been subpoenaed by the hearing officer, he has a duty to appear and testify. And third, once a witness is testifying under oath, he has a duty to answer truthfully and generally cannot refuse to answer questions or leave the hearing to avoid questioning. Since he would be personally responsible for violating any of these duties, the person giving testimony at an unemployment hearing may be protected by the public policy exception to the at-will employment doctrine.

Turning to the facts of this case, the Court found it was possible that Perkins thought he was complying with these duties when he testified at the hearing.

Perkins was left in a bind: the ALJ had not yet provided the required notification of his decision—issuing a subpoena or a notification denying the request—and Perkins had been told by the requesting party that a subpoena would be waiting for him at the hearing. Memorial contends that it could fire Perkins for appearing voluntarily without a subpoena in hand, but such a simplistic view ignores that Perkins came to the hearing in an attempt to comply with his duty “to cooperate” with service of a subpoena under Trial Rule 4.16. We cannot expect a witness cooperating with service to decide on the underlying subpoena’s validity until he has a chance to examine it. Since any witness attempting to dutifully comply with service must cooperate before the validity of the underlying subpoena is clear, we must consider the reasonableness of his belief given the information known prior to service. … Perkins’s choice to attend the hearing can be viewed as a reasonable attempt to fulfill a clearly defined and applicable duty to cooperate with service.

And once Perkins appeared, the ALJ could have compelled his testimony, even if he did not want to give it.

We do not know conclusively why the ALJ thought that a subpoena “wasn’t needed,” but determining whether Perkins faced legal jeopardy is the critical inquiry here. For instance, if the ALJ did not issue a subpoena because the applicable subpoena standard was not met, and Perkins chose to testify anyway, then his decision to testify was voluntary and should not be entitled to protection. If, on the other hand, the ALJ decided to dispense with the formality of writing out a subpoena—given that Perkins was already present—then Perkins was under a constructive duty to testify because a subpoena would have been issued the moment he tried to leave without testifying. The integrity of the unemployment adjudicative system requires that protection be provided if Perkins was under such a constructive duty to testify.

The Court summed up its position on this issue more generally in the opinion’s conclusion.

Since ensuring witnesses appear is vital to the adjudicative process, we will not ordinarily hold the witness liable for technical or procedural defects in the hearing officer’s order. Allowing employers to fire an employee merely because of a small technical mistake by the hearing officer would create the very “fear of retaliation” that the Frampton Court contemplated.

The Court reversed and remanded.

Justice Slaughter dissented. He feels that the majority’s decision “is not only wrong but needlessly blurs what had been a clear, bright-line rule.” He would interpret the public policy exception narrowly, limiting to circumstances in which witnesses had an actual duty to testify, rather than a mere constructive duty.

To be clear, I have no quarrel with the Court’s observations that a prospective witness to a judicial or administrative proceeding has “a clear duty” to cooperate and accept service of process; that a witness under subpoena must appear and give testimony; and that a witness under oath must testify truthfully. I also agree that terminating an employee who tries or succeeds in fulfilling these legal duties may implicate our public-policy exception. But the Court takes these acknowledged duties and imposes an additional duty on would-be witnesses with no legal basis for doing so. A witness’s duty to cooperate and accept service is modest. It forbids the witness from evading service, but it does not require the witness to take affirmative steps to track down the process server. No one served—or tried to serve—Perkins with a subpoena. Thus, there would have been no basis for charging an empty-handed Perkins with evading service had he refused to attend the co-worker’s benefits hearing. Because Perkins never received a subpoena, he had no duty to appear at the hearing, much less to testify. That alone should have defeated Perkins’s invocation of the “right-or-duty” exception to our employment-at-will doctrine.

1. An at-will employee cannot be fired for complying with a legal duty.
2. An at-will employee who appears at an unemployment hearing under the belief
that a subpoena will be given to him cannot be fired for that appearance and
3. Courts will not blame witnesses for technical or procedural defects in a hearing
officer’s order.