Case 1:06-cv-01770-JDT-TAB Document 19 Filed 05/11/2007 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KEVIN RYAN, )
)
Plaintiff, )
)
v. ) Cause No. 1:06-cv-1770-JDT-TAB
) Judge John D. Tinder
) Magistrate Judge Tim A. Baker
)
UNDERWRITERS LABORATORIES, INC. )
)
Defendant. )

PLAINTIFF KEVIN RYAN’S SUPPLEMENTAL RESPONSE IN OPPOSITION

TO DEFENDANT UNDERWRITERS LABORATORIES, INC.’S MOTION TO
DISMISS REGARDING THE RECENT DECISION OF THE INDIANA
SUPREME COURT IN MEYERS V. MEYERS

Pursuant to the Court's recent Order, Plaintiff Kevin Ryan repsectfully submits his

supplemental response in opposition to Defendant's Motion to Dismiss. The Court has

asked the parties to address the recent decision of the Indiana Supreme Court in Meyers v.

Meyers, 861 N.E.2d 704 (Ind. 2007). In Meyers, the Indiana Supreme Court clearly

intended only to reconfirm the existing law governing the scope of the public policy

exception to the employment at will doctrine. That doctrine allows an employee to bring

a common law tort claim of retaliatory discharge if the employee was fired because of the

employee's exercise of a statutory or constitutional right, fulfilment of a statutory duty, or

refusal to engage in a violation of law for which the employee would have personal

liability. The Meyers Court relied on a prior decision as the basis for holding that the

claim of the plaintiff in Meyers did not fall within the bpublic policy exception. Id. citing

Morgan Drive Away, Inc. v. Brant, 489 N.E.2d 933, 934 (Ind. 1986). The Court in

Meyers was in no way narrowing the existing public policy exception.

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In Meyers the plaintiff engaged in what might be called classic internal

whistleblowing, albeit regarding a matter in which he had statutory rights. He was then

fired allegedly because of his complaints to his employer. The public policy exception to

employment at will in Indiana has not been extended to any whistleblowing but only

applies when a specific statutory or constitutional right is being exercised or a duty is

being fulfilled, or the employee refuses to commit a crime for which he would be

personally liable. Under Indiana law, complaining to one's boss that one's rights are being

violated is one (unprotected) thing, but following a procedure provided by statute to

vindicate your rights is another (protected) thing. In Meyers, the plaintiff was not
asserting a claim under one of Indiana's whistleblower statutes, but was asserting a

common law claim.

Had the plaintiff in Meyers first filed his lawsuit seeking payment of unpaid

wages due under the statute and then was fired for filing the lawsuit, Indiana law would

have protected him because he would have been fired for execising his right to sue under

a federal statute, the Fair Labor Standards Act (FLSA), and exercising his right under the

Indiana Constitution to seek a remedy for a wrong done to him. This may appear to be a

fine distinction, but if so it is a fine distinction drawn by the Indiana Supreme Court. The

Indiana Supreme Court has not recognized a right, under Indiana's public policy

exception to the employment at will doctrine, to complain to one's employer or blow the

whistle generally. But the Indiana Supreme Court does recognize that this public policy

exception includes cases where the employee is exercising a specific statutory right such

as the right to sue for unpaid wages under the FLSA and the right to sue to seek a remedy

for a wrong done under the Constitution.

In Plaintiff Kevin Ryan's case, Ryan may be protected even for his internal

whistleblowing by the Indiana corporate whistleblower statute. It is clear from the

Defendant's termination letter that Mr. Ryan was fired later for writing a letter to a federal

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agency, the National Institutes for Standards and Technology (NIST). In this letter to

NIST, Ryan was seeking to have the agency correct its incompetent, negligent and

possibly dishonest studies of the World Trade Center collapse and sought to have the

federal government acknowledge to the public the scientific evidence of an apparent

major crime, terrorist act, or treasonous act, and to take appropriate action to deal with

those crimes and acts. Mr. Ryan was fired for petitioning his government for redress of

grievances, for seeking to alter and reform his government, and for reporting a potential

felony.

These actions by Mr. Ryan via his letter to NIST and the internal whistleblowing
that preceded and gave context to the letter (particularly for Defendant Underwriters

Laboratories) constitute the exercise of Ryan's specific rights under the Indiana

Constitution to alter and reform his government and under the First Amendment of the

U.S. Constitution to petition the government for redress of grievances, as well the

exercise of his right and the fulfillment of his duty under the criminal misprision of a

felony statute to report a felony.

It was made clear in the Indiana Supreme Court's analysis in Meyers that a key as

to whether a given case falls under the Indiana public policy exception is whether there is

specific statutory language that reflects the right or duty at issue that was exercised by the

employee. In Mr. Ryan's case, there is an Indiana statute that provides a statutory cause

of action for Plaintiff Ryan’s wrongful discharge (whistleblower retaliation) claim. I.C.

22-5-3-3. See Coutee v. Lafayette Neighborhood Housing Servs., Inc., 792 N.E.2d 907,

911 (Ind. Ct. App. 2003). Should this Court decide that this statute does not actually

provide an independent cause of action for Mr. Ryan, then, in the alternative, the statute

clearly establishes and reflects a public policy that private employers such as

Underwriters Laboratories (UL) should not fire employees for engaging in protected

whistleblowing activities that fall within the scope of the statute, which Mr. Ryan's letter

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to NIST, following on the heals of his internal whistleblowing communications to UL,

clearly does.

In addition, as Plaintiff has previously briefed, there are also several statutory and

constitutional provisions that supply a source of public policy to support Ryan’s common

law claim for wrongful discharge under Indiana’s public policy exception to the

employment at will doctrine. Because Ryan’s Complaint states a wrongful discharge

claim under one or both of his two legal theories, a statute based whistleblower retaliation

claim and a common law based claim under the public policy exception to the

employment at will doctrine, Defendant’s Motion to Dismiss should be denied. The

Meyers decision does not change this analysis.

Should the Court find that Plaintiff has not stated a claim for wrongful discharge

under either the common law public policy exception to employment at will or under the

Indiana whistleblower statute discussed supra, Plaintiff expects that the Plaintiff's

amended complaint to be filed by May 14, 2007 will eliminate any perceived defects in

the current complaint.

CONCLUSION AND RELIEF REQUESTED

For all the foregoing reasons, Defendant’s Motion to Dismiss should be denied.

Respectfully submitted,

S/Rudolph Wm. Savich

Rudolph Wm. Savich, Esq., 1582-53, Counsel for Plaintiff
205 N. College Ave.,
Graham Plaza- Ste. 315
Bloomington, IN 47404-3952
Tel. (812) 336-7293
Fax. (812) 336-7268
rsavich@aol.com

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Kara L. Reagan, Esq., Counsel for Plaintiff

Stafford Law Office, LLC
714 West Kirkwood Ave., P.O. Box 2358
Bloomington, IN 47402
812-339-6055, 812-339-6877 (fax)
KARA@CSTAFFORDLAW.COM

S/ Mick G. Harrison, Esq., Counsel for Plaintiff

The Caldwell Center
323 S. Walnut
Bloomington, IN 47401
812-323-7274 (voice)
859-321-1586 (cell)
859-986-2695 (fax)
mickharrisonesq@earthlink.net
Counsel for Plaintiff

Dated: May 11, 2007

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing Plaintiffs’ Response to

Defendant’s Motion to Dismiss was electronically filed and thereby automatically served

on the parties indicated below. Notice of this filing will be sent to the following parties by

operation of the Court’s electronic filing system. Parties may access this filing through

the Court’s system.

Michael P. Roche (admitted pro hac vice)

Aviva Grumet-Morris (admitted pro hac vice)
Winston & Strawn LLP
35 West Wacker Drive
Chicago, Illinois 60601
Tel: (312) 558-5600
Fax: (312) 558-5700
mroche@winston.com
agmorris@winston.com

Thomas E. Deer
Locke Reynolds LLP
201 North Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
Tel: (317) 237-3800
Fax: (317) 237-3900
tdeer@locke.com

all done May 11, 2007.

S/ Mick G. Harrison, Esq.

Mick G. Harrison, Esq.
One of Counsel for Plaintiffs
The Caldwell Eco Center
323 S. Walnut Street
Bloomington, IN 47401
Tel. (812) 323-7274
Fax (812) 336-7268

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