Carroll v. Porter County of et al

Filing 21

OPINION AND ORDER: Court GRANTS 11 Partial Motion to Dismiss and Counts II, III, V, and VI are DISMISSED WITH PREJUDICE. Signed by Judge Rudy Lozano on 7/11/2013. (tc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
REBECCA CARROLL,

)
)
Plaintiff,
)
)
vs.
)
)
THE COUNTY OF PORTER, et al., )
)
Defendants.
)

NO. 2:12-CV-412

OPINION AND ORDER
This matter is before the Court on a Partial Motion to Dismiss
filed by Defendants, The County of Porter (“Porter County”), The
Porter County Commissioners (“Commissioners”), John Evans, Nancy
Adams, and Carole Knoblock, in their individual and official
capacities. For the reasons set forth below, the Partial Motion to
Dismiss is GRANTED and Counts II, III, V, and VI are DISMISSED with
prejudice.

BACKGROUND
This case arises out of the termination of Rebecca Carroll’s
(“Carroll”)
(“Shelter”).

employment

at

the

(Pl. Cmplt ¶ 8).

Porter

County

Animal

Shelter

As an employee of the Shelter, she

was an employee of Porter County.

(Id.)

Carroll began her

employment on March 1, 2010 and was subsequently terminated on
December 9, 2011.

(Id.)

Carroll alleges that in or around
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November 2011, she reported instances of animal neglect and abuse
occurring at the Shelter to Porter County Commissioner John Evans,
Interim Shelter Director Christina Montgomery, and Porter County
Councilman Dan Whitten.

(Id. at ¶ 11-15).

On December 4, 2011,

the Porter County Council held a meeting, with considerable press
coverage, regarding animal abuse at the Shelter.

(Id. at ¶ 16).

Carroll alleges that on December 9, 2011, she was terminated from
the Shelter “for reasons that were baseless, unsubstantiated and
not included in the Porter County Employee Handbook.”
17).

(Id. at ¶

Carroll further alleges that she was fired “in retaliation

for exercising her right of free speech and for performing her
civic and lawful duty to report animal abuse, pursuant to Porter
County Code.”

(Id. at ¶ 18).

Carroll’s complaint contains six causes of action:

(I)

Section 1983; (II) Retaliatory Discharge; (III) Discharge Against
Public Policy; (IV) First Amendment; (V)
the

Indiana

Constitution;

and

(VI)

Article 1, Section 9 of

Intentional

Infliction

of

Emotional Distress. Counts I and IV are not subject to the instant
motion.

DISCUSSION
In evaluating a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must accept all facts alleged in the
complaint as true, and draw all reasonable inferences in the light

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most favorable to the plaintiff.
520 (7th Cir. 2001).

Johnson v. Rivera, 272 F.3d 519,

A complaint is not required to contain

detailed factual allegations, however, the plaintiff must allege
facts that state a claim to relief that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).

It is not enough that

there might be some conceivable set of facts that entitle the
plaintiff to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
553 (2007).

The plaintiff’s obligation “requires more than labels

and conclusions...”

Id.

The Supreme Court has provided that

“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
556 U.S. at 678.
discovery

for

conclusions.”

Iqbal,

Further, Rule 8 “does not unlock the doors of
a

plaintiff

armed

with

nothing

more

than

Id. at 678-79.

The Retaliatory Discharge and Discharge Against
Public Policy Claims Fail To State A Claim Because
Carroll was an At-Will Employee and Neither Claim Fits
Into a Public Policy Exception to the At-Will Employment Doctrine.
In Counts II and III of the Complaint, Carroll alleges that
her termination was in retaliation for her reporting instances of
animal abuse and that the termination effectively “subverts the
public policy of the State of Indiana.”

(Pl. Cmplt ¶ 30-32).

An employee at-will is terminable at any time, with or without
cause. Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 717
(Ind. 1997). The Indiana Supreme Court has further held that there
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are only two public policy exemptions to the at-will employment
doctrine that allow an at-will employee to file a claim for
retaliatory discharge:

(1) when discharged for filing a worker’s

compensation claim; or (2)when discharged for refusing to commit an
illegal act for which he would be personally liable.

Groce v. Eli

Lilly & Co., 193 F.3d 496, 503 (7th Cir. 1999).
Carroll was an at-will employee at the Shelter, and does not
provide substantive case law to support her position that she
should (or could) be entitled to move forward with her claims
related to the alleged retaliatory discharge.

Carroll’s only

argument in support of her claims are that although “Indiana case
law provides little support...new case law is made every day and
precedents that no longer work or that disadvantage the public, can
be altered and over-ruled.”

(Pl. Mot. in Opp. p. 1).

Considering

the current state of the law, however, this Court follows the
precedent set by the Indiana Supreme Court and presented by the
Defendants.

Carroll was an at-will employee and her claims do not

fall within the purview of the two public policy exemptions to the
at-will employment doctrine. The Court therefore finds that Counts
II and III fail to state a claim upon which relief can be granted
and are dismissed with prejudice.

The Claim under Article 1, Section 9 of the Indiana
Constitution Fails to State a Claim Because there is
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No Private Right of Action for Damages Under that Section.
In

Count

V

of

the

complaint,

Carroll

alleges

that

her

termination was a violation of Article 1, Section 9 of the Indiana
Constitution.
restraining

Section 9 provides that “[n]o law shall be passed,

the

free

interchange

of

thought

and

opinion,

or

restricting the right to speak, write, or print, freely, on any
subject whatever: but for the abuse of that right, every person
shall be responsible.”

IND. CONST. art. 1, § 9.

The Indiana

Supreme Court, interpreting Section 9, has held that “a terminated
employee has no private right of action for damages that arises
under that Section.” Cantrell v. Morris, 849 N.E.2d 488, 492 (Ind.
2006).

Carroll provides no support in opposition of the Indiana

Supreme Court decision, and did not attempt to address Count V in
her response brief.

The Court therefore finds that Count V fails

as a matter of law, and will be dismissed with prejudice.

The Intentional Infliction of Emotional Distress
Claim Fails to State A Claim for Which Relief Can be Granted.
In Count VI of the complaint, Carroll alleges that the
retaliatory discharge was “extreme and outrageous and was carried
out with the knowledge that such conduct would likely cause
Plaintiff severe emotional distress.”

(Pl. Cmplt. ¶ 45).

Carroll

alleges that the Defendants’ intentional infliction of emotional
distress caused “severe emotional distress, loss of wages, loss of
sleep, embarrassment and anxiety.”
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(Id. at 45).

The Indiana Supreme Court has defined the tort of intentional
infliction of emotional distress as “one who by extreme and
outrageous

conduct

intentionally

emotional distress to another...”
27, 31 (Ind. 1991).

or

recklessly

causes

severe

Cullison v. Medley, 570 N.E.2d

Conduct is extreme and outrageous:

“only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the
recitation of the facts to an average member of the
community would arouse his resentment against the actor,
and lead him to exclaim, ‘Outrageous!’
Conwell v. Beatty, 667 N.E.2d 768, 777 (Ind. Ct. App. 1996)
(quoting Restatement (Second) of Torts § 46 cmt. d (1965)). As the
Defendants correctly note, “Indiana courts have been reluctant to
award damages for intentional infliction of emotional distress in
employment cases.”

McCreary v. Libbey-Ownens-Ford Co., 132 F.3d

1159, 1167 (7th Cir. 1997); see also Ellis v. CCA of Tennessee,
LLC, 2010 WL 2605870, *8 (S.D. Ind. June 21, 2010) (holding that
termination for complaints of unfavorable work assignments, shift
changes, and unwarranted disciplinary actions did not state a claim
for intentional infliction of emotional distress).
Moreover, mere conclusory allegations do not meet the minimum
pleading standards set forth in Iqbal, supra.

Further, similar to

Counts II and III, Plaintiff acknowledges that the case law
provides little to no support for her position. In fact, Plaintiff
has cited to neither case law nor substantive argument in support
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of this claim.

Carroll’s only argument is a hope that this Court

will overrule current precedent, which this Court is not inclined
to do at this juncture.

In light of McCreary, and the lack of a

substantive argument provided by the Plaintiff, this Court finds
that Count VI of the complaint fails as a matter of law, and should
be dismissed with prejudice.

CONCLUSION
For the reasons set forth above the Partial Motion to Dismiss
is GRANTED and Counts II, III, V, and VI are DISMISSED with
prejudice.

DATED:

July 11, 2013

/s/RUDY LOZANO, Judge
United States District Court

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