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Cripe9/28/2005
harge. In an attempt to avoid liability, an employer may refrain from actually firing an employee, preferring instead to engage in conduct causing him or her to quit."' Id. (quoting Balmer, 604 N.W.2d at 641). The court indicated that the constructive discharge doctrine was designed to address '"such employer-attempted 'end runs' around wrongful discharge and other claims requiring employer-initiated terminations of employment."' Id. "The [constructive discharge] doctrine operates 'to discard form for substance, to reject sham for reality' and recognizes that certain resignations are, in fact, actual firings." Id. (quoting Beye, 477 A.2d at 1201).
The court, though, went on to note its agreement with the trial court that "the constructive discharge doctrine does not present an independent cause of action." Id. at 448. Instead, the court concluded that the constructive discharge doctrine "is ancillary to an underlying claim in which an express discharge otherwise would be actionable." Id. at 462. "Constructive discharge joins the actionable claim and operates as a defense against an employer's contention that the employee quit voluntarily." Id. The court cautioned that " n employee who relies on a constructive discharge defense in a public policy exception case still must identify a fundamental and well defined public policy and then prove that the discharge, whether constructive or express, violated that policy." Id. The court concluded that "the doctrine of constructive discharge can be applied as a defense in a common-law claim [for wrongful discharge] under the public policy exception because some resignations are, in fact, involuntary." Id. at 448. The court asserted that this conclusion "recognizes that employers cannot escape liability by coercing a resignation instead of formally uttering the words 'you're fired.' Were we to prohibit this cause of action because the employer forced a resignation instead of expressly discharging the employee, we would elevate form over substance . . . ." Id. at 465-66. The court ultimately held that the Wisconsin Court of Appeals properly reversed the trial court's grant of summary judgment in the School District's favor. Id. at 466.
Based on Strozinsky, I would hold that Indiana recognizes the constructive discharge doctrine as a defense that an at-will-employee can raise in the context of a common law retaliatory discharge claim brought against his employer. Thus, an at-will-employee who has not been expressly discharged can bring a common law claim for retaliatory discharge against his employer if he alleges that he was constructively discharged. In order for an at-will-employee who alleges he has been constructively discharged and has brought a retaliatory discharge claim to survive an employer's Trial Rule 12(B)(6) motion to dismiss, I would hold that the employee must plead sufficient facts to put the employer on notice that (1) he is entitled to bring a retaliatory discharge claim under an exception to the employment-at-will doctrine, and (2) that he was constructively discharged.
Here, Clark has satisfied both of these requirements. Indiana Code section 9-21-7-1 provides that a person may not drive or move on a highway a motor vehicle unless the equipment upon the vehicle is in good working order and adjustment, and the vehicle is in a safe mechanical condition that does not endanger the person who drives the vehicle, an occupant of the vehicle, or a person upon the highway. Indiana Code section 9-21-7-13 provides that an individual who violates Indiana Code section 9-21-7-1 commits a Class C infraction. Clark's complaint alleges that Cripe required him to drive three vehicles that were (1) not in good working order and adjustment, (2) not
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