Case 1:06-cv-01770-JDT-TAB Document 27-2 Filed 06/03/2007 Page 1 of 7

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 CORRECTED 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 respectfully submits his

corrected 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, as stated in Frampton

v. Central Indiana Gas, 297 N.E.2d 425, 428 (Ind. 1973) and the cases that followed,

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 one of its prior decisions as the basis for holding that

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

-1-
Case 1:06-cv-01770-JDT-TAB Document 27-2 Filed 06/03/2007 Page 2 of 7

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.

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.

Upon a careful re-reading of Morgan Drive Away, Inc. v. Brant, 489 N.E.2d 933,

934 (Ind. 1986) (particularly in light of the Dissent) together with Frampton v. Central

Indiana Gas, 297 N.E.2d 425 (Ind. 1973), it is not clear that the two decisions of

Indiana's highest court are readily and entirely reconcilable. On the one hand, the court in

Morgan clearly does not overrule Frampton, even after noting the clear language in

Frampton that

We agree with the Court of Appeals that, under ordinary circumstances, an

employee at will may be discharged without cause. However, when an
employee is discharged solely for exercising a statutorily conferred right
an exception to the general rule must be recognized.

Frampton v. Central Indiana Gas, 297 N.E.2d 425, 428 (Ind. 1973). The court in

Morgan instead praises the Frampton decision, stating "the well-reasoned Frampton

decision serves as a milestone in the march of Indiana common law." On the other hand,

the Dissent in Morgan clearly states a statutory basis for a right being exercised by the

plaintiff in Morgan which would appear to bring the plaintiff's action in Morgan within

-2-
Case 1:06-cv-01770-JDT-TAB Document 27-2 Filed 06/03/2007 Page 3 of 7

the scope of the Frampton rule. The majority in Morgan rejects this conclusion, but does

not provide any substantial explanation other than that the public policy exception stated

in Frampton is narrow and the court in Morgan was reluctant to extend it. Why the court

in Morgan believed that the Frampton rule would have to be extended to encompass the

plaintiff's claim in Morgan is not made clear.

The plaintiff in Morgan had apparently filed a small claims court action to recover

unpaid wages. It is unclear from either the majority opinion or the dissenting opinion in

Morgan whether the filing of such a small claims action was the proper enforcement

procedure for the statutory right in question, and whether if it was not, whether that fact
influenced the decision of the majority to find that the complaint in Morgan did not state

a claim under the Frampton rule.

Notwithstanding this unexplained tension between the decisions in Frampton and

Morgan, it is Plaintiff's view that the Indiana Supreme Court would still decide today,

consistent with the rule set down in Frampton and recognized and praised in Morgan,

that an employee who exercises a clear statutory or constitutional right and who is then

fired because of the exercise of this right, as distinguished from a case where the

employee engaged only in internal whistleblowing (or was not an employee but a

contractor), would be able to state a claim that falls within the scope of Indiana's common

law public policy exception to the employment at will doctrine.

This distinction between the exercise of a specific statutory or constitutional right

versus general whistleblowing 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 Neither the

Meyers nor the Morgan decisions abandon the rule established in Frampton that the

Indiana public policy exception includes cases where the employee is fired for exercising

-3-
Case 1:06-cv-01770-JDT-TAB Document 27-2 Filed 06/03/2007 Page 4 of 7

a specific statutory right.

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

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

-4-
Case 1:06-cv-01770-JDT-TAB Document 27-2 Filed 06/03/2007 Page 5 of 7

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

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.

-5-
Case 1:06-cv-01770-JDT-TAB Document 27-2 Filed 06/03/2007 Page 6 of 7

Respectfully submitted,

/s/ Rudolph Wm. Savich

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

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

Counsel for Plaintiff

Dated: June 3, 2007

-6-
Case 1:06-cv-01770-JDT-TAB Document 27-2 Filed 06/03/2007 Page 7 of 7

CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing Plaintiffs’ proposed Corrected

Supplemental Response to Defendant’s Motion to Dismiss was electronically filed as an

attachment to the accompanying motion for leave to file corrected supplemental response

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 June 3, 2007.

/s/ Rudolph Wm. Savich

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

-7-