Content-Type: text/html Cause #: 03-125m.v9.html

CADDNAR


[CITE: Poyck v. Department of Natural Resources, 9 CADDNAR 149 (2003)]

[VOLUME 9, PAGE 149]

Cause #: 03-125M
Caption: Poyck v. Department of Natural Resources
Administrative Law Judge: Wilcox
Attorneys: pro se (Poyck); Roth (DNR)
Date: December 29, 2003

FINAL ORDER OF DISMISSAL


Having reviewed the DNR Supplemental Motion to Dismiss, and being duly advised, the motion is GRANTED.

FINDINGS

1. On October 24, 2003, the Department of Natural Resources filed Respondent's Supplemental Motion to Dismiss, "Motion". The motion provides in pertinent part:

...

4. Under Indiana Law, there is a strong presumption that an employee is at-will and that the employment may be terminated at any time. Bee Window, Inc. v. Thurman, 716 N.E.2d 498, 500 (Ind. Ct. App. 1999). Although there are limited exceptions to the employment at-will doctrine that may rebut this presumption, these exceptions must be pled by the complainant at the time the complaint is filed. ID at 501.

5. Because Poyck did not raise any exception or any facts to rebut the presumption that his employment was at will, or that the termination could only be taken for cause, his termination is a personnel action that is exempt from Indiana Cod 4-21.5.
...

2. Bee Window provides further that "Indiana recognizes two basi[c] forms of employment: (1) employment for a definite or ascertainable term; and (2) employment-at-will." See Bee Window at 500.

3. Bee Window is persuasive. On July 21, 2003, Robert Poyck filed his petition for review citing "wrongful termination." No facts in the July 21, 2003 petition support findings that Mr. Poyck was not an employee-at-will. Additionally, no definite or ascertainable term for employment is identified in Mr. Poyck's pleadings of record in this case.

4. Ind. Cod 4-21.5-2-5(4) allows for administrative review of "a personnel action by the state employees appeals commission under IC 4-15-2 or a personnel action that is not covered by IC 4-15-2."

5. Based on the fact that Mr. Poyck did not present facts rebutting the presumption that he was employed via employment-at-will, or that his termination could only be taken for cause under IC 4-21.5-2-5(4), the DNR Supplemental Motion to Dismiss should be granted.