In a split decision, the Indiana Supreme Court agreed with the Marion County Superior Court’s dismissal of her lawsuit against IDEM.
Most of the Supreme Court justices said the state is immune from non-tort claims because the whistleblower act does clearly show the state could be sued for violations of the whistleblower statute.
Esserman’s attorney says Indiana workers should be concerned about the ruling, because it makes it more difficult for government employees to expose wrongdoing.
“Ms. Esserman and I are very disappointed about this decision,” said Esserman’s attorney Mary Jane Lapointe. “This decision has the effect of insulating the State from liability for its own misconduct and penalizes the employee who tries to stand up for the taxpayers.”
Justice Steven David dissented, arguing when the law says “employer,” state government should be included in that.
Esserman and her attorney are calling for the state legislature to update the law to specifically include state government as an employer that can be sued under the Whistleblower Act.
“I agree with the dissenting Justice that the term ‘employer’ is clear as a bell, and in our case the State is the employer so the law should apply,” said LaPointe. “We can only hope that the General Assembly will amend this law to make clear that an ‘employer’ includes the State.”
Esserman had worked for IDEM for nearly 25 years and was terminated on January 17, 2014, while working as a senior environmental manager.
The Marion County Superior Court decided IDEM had immunity and dismissed the case.
The Supreme Court ruling pointed out that state workers have another option to sue, under the State Personnel Act.
But Esserman’s attorney said that’s not enough to make up.
“We have utilized that remedy, however, the State Personnel Act’s whistleblower provision does not protect those who object to illegal activity but do not put it in writing—and Ms. Esserman had more oral complaints than written ones,” said Lapointe.
Under the State Personnel Act the employee can’t collect more than 30 days of back pay, and no attorney fees.
Call 6 Investigates has contacted IDEM for a response to the Indiana Supreme Court ruling.