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Cripe9/28/2005
sufficiency of a claim, not the facts supporting it." Borgman v. Aikens, 681 N.E.2d 213, 216 (Ind. Ct. App. 1997), trans. denied. When we review a trial court's ruling on a trial rule 12(B)(6) motion to dismiss, we view the pleadings in the light most favorable to the nonmoving party and draw every reasonable inference therefrom in favor of that party. Id. The allegations contained in the complaint should be taken as true. Indianapolis Newspapers, a Div. of Ind. Newspapers, Inc. v. Indiana State Lottery Comm'n, 739 N.E.2d 144, 151 (Ind. Ct. App. 2000), trans. denied. Viewing the facts in a light most favorable to the nonmoving party, I believe Clark has sufficiently stated a claim for retaliatory discharge. The majority's consideration of whether Clark has alleged sufficient facts to prove that he was subjected to intolerable working conditions goes beyond testing the sufficiency of Clark's claim and tests the sufficiency of the facts supporting the claim, which is contrary to our standard of review.
I agree with the majority that " efore the employment situation will be deemed intolerable, . . . the adverse working conditions must be unusually 'aggravated' or amount to a 'continuous pattern' of negative treatment." Slip op. at 9. However, determining whether an employee has been subjected to intolerable working conditions is a factually intense inquiry that a trial court is not well suited to perform when all it has before it is the plaintiff's complaint. A trial court would be better able to perform this inquiry later in the proceedings after discovery has been done and the parties have filed motions for summary judgment. Thus, I conclude that Clark's complaint alleges sufficient facts to survive Cripe's motion to dismiss.
Therefore, I would affirm the trial court's order denying Cripe's motion to dismiss because I believe Indiana should adopt the doctrine of constructive discharge, and because Clark's complaint has alleged sufficient facts to survive Cripe's motion to dismiss.
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