ISP officer loses whistleblower appeal

Dave Stafford for www.theindianalawyer.com

State workers alleging retaliation for whistleblower activities must first exhaust all administrative remedies before suing, the Indiana Court of Appeals held Wednesday, affirming a trial court ruling against a 27-year Indiana State Police officer.

Ronald Shoemaker had climbed the ISP ranks to major, in part on the basis of his whistleblower report in 2008 that alleged problems such as ghost employment, overtime, and possible misrepresentations to court officers by law enforcement officers in the Drug Enforcement Section of the Criminal Investigation Division.

But after Gov. Mike Pence appointed Doug Carter as ISP superintendent in 2013, Carter demoted Shoemaker to sergeant and reassigned three officers former Superintendent Paul Whitesell had removed from the CID after Shoemaker’s whistleblower report.

Shoemaker appealed to the State Employee Appeals Commission more than nine months after his demotion, which resulted in a reduction in pay and in his last merit rank. Appeals must be filed within 30 days, but Shoemaker argued the statute of limitations should have been equitably tolled due to fraudulent concealment.

In July 2014, an administrative law judge entered the commission’s final order dismissing Shoemaker’s appeal, finding it was untimely filed and that he could seek judicial review within 30 days. Instead of doing that, Shoemaker filed the instant breach of contract action based on ISP’s alleged violation of the Whistleblower Law, I.C. 4-15-10-4.

Writing for the panel, Judge Robert Altice noted caselaw rejecting attempts to raise a common law claim for wrongful discharge under the whistleblower law. The also panel rejected Shoemaker’s arguments that due to futility, inadequacy of process and judicial estoppel, he should be excused from following the administrative procedure set out in the act.

Shoemaker cited Whinery v. Roberson, 819 N.E.2d 465 (Ind. Ct. App. 2006), in which Department of Natural Resources employees were permitted to directly sue the State Personnel Department in a class-action wage dispute.

“We find Whinery distinguishable. The statute at issue in this case – the WBL – does not address anything along the lines of remuneration or tenure. More importantly, the WBL provides an express remedy for an alleged violation of the statute through an SEAC administrative appeal,” Altice wrote. “We do not agree with Shoemaker that Whineryprovides him with the right to avoid the administrative steps and turn directly to the courts by filing a breach of contract claim based on an alleged violation of the WBL.

“We hold that a state employee seeking redress for an employment action allegedly taken in retaliation for whistleblowing activity must proceed with, and only with, the remedy expressly provided in the WBL. Shoemaker began his administrative appeal with the SEAC but did not seek judicial review of the ALJ’s determination that the administrative appeal was untimely filed. Accordingly, the trial court properly granted ISP’s motion for summary judgment in this separate breach of contract action filed by Shoemaker.”

The case is Ron Shoemaker v. Indiana State Police Department, 49A02-1604-PL-879.