Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 1 of 29

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Mary Jane Lapointe

Daniel Lapointe Kent

Lapointe Law Firm, P.C.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Winston Lin

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Suzanne E. Esserman,

Appellant-Plaintiff,

v.

Indiana Department of 

Environmental Management,

Appellee-Defendant.

May 10, 2019

Court of Appeals Case No.

18A-PL-2375

Appeal from the Marion Superior 

Court

The Honorable P.J. Dietrick, 

Judge

Trial Court Cause No.

49D12-1609-PL-31303

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 2 of 29

Case Summary and Issues

[1] Suzanne Esserman appealed her termination from the Indiana Department of 

Environmental Management (“IDEM”) to the State Employees’ Appeals 

Commission (“SEAC”). The SEAC granted partial summary judgment in 

favor of IDEM before issuing a final order on Esserman’s remaining claims. 

Esserman filed a petition for judicial review of the agency action and, after a 

hearing, the trial court denied Esserman’s petition and affirmed the SEAC’s 

order. Esserman now presents three issues for our review, which we 

consolidate and restate as: (1) whether the trial court erred in affirming the

SEAC’s grant of partial summary judgment on Esserman’s claim that she could 

be personally liable for refusing to break a law; and (2) whether the trial court 

erred in concluding the SEAC’s decision was supported by substantial evidence. 

Concluding the trial court erred in affirming the SEAC’s grant of partial 

summary judgment but the trial court did not err in concluding the SEAC’s 

decision on her remaining claims was supported by substantial evidence, we 

reverse in part, affirm in part, and remand. 

Facts and Procedural History 

[2] Esserman was employed by IDEM for nearly twenty-five years before she was 

terminated on January 17, 2014. She then appealed her termination to the 

SEAC on March 10, 2014, alleging she was terminated for reasons in violation 

of public policy, including: (1) objecting to the misuse of State funds in 

violation of Indiana Code section 5-11-5.5-8 and Indiana Code section 4-15-10-
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 3 of 29

4; (2) refusing to break the law for which she could be personally liable, i.e., 

Indiana Code section 5-11-5.5-2 and well as other Indiana statutes and common 

law prohibiting fraud, theft, and deception; (3) objecting to a sexually hostile 

work environment in violation of Title VII of the Civil Rights Act of 1964, 42 

U.S.C. § 2000e-(3)(a); and (4) objecting to IDEM’s failure to accommodate her 

disabilities in violation of State policy on disabilities and the Americans with 

Disabilities Act (“ADA”), 29 U.S.C §§ 12112, 12203. See Appellant’s 

Appendix, Volume II at 62-63. 

[3] IDEM moved for partial summary judgment in regard to Esserman’s first two 

claims on June 29, 2015.

1

 In support of its motion, IDEM designated: (1) 

Esserman’s civil service employee complaint along with five letters sent by 

Esserman’s counsel to various IDEM individuals and entities incorporated as 

exhibits; (2) Esserman’s termination letter; and, (3) a copy of an order in Meeks 

v. INDOT, SEAC No. 12-13-106 (Jan. 21, 2014). See Appellant’s App., Vol. III 

at 62. The administrative law judge (“ALJ”) granted IDEM’s motion on 

September 15, 2015.2 

 

1 The record clearly indicates that Esserman filed a response to IDEM’s motion for summary judgment but 

Esserman’s response is not included in the Appellant’s or Appellee’s Appendices. See, e.g., Appellant’s App., 

Vol. II at 49, 58. It does not appear, however, that Esserman designated any evidence in response. 

2

Following the ALJ’s grant of summary judgment on these issues in favor of IDEM, Esserman filed a 

complaint against IDEM in state court, alleging unlawful retaliatory termination in violation of the IFCA. 

IDEM successfully moved to dismiss the complaint on the basis of sovereign immunity and our supreme 

court affirmed the trial court on transfer. See Esserman v. Ind. Dep’t of Envtl. Mgmt., 84 N.E.3d 1185, 1193 

(Ind. 2017). 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 4 of 29

[4] An administrative hearing was conducted on January 27 and 28, 2016. There, 

the ALJ limited evidence to Esserman’s remaining claims and, after hearing 

evidence, issued a non-final order concluding:

[IDEM’s] termination of [Esserman] did not violate public 

policy. [Esserman] has failed to sustain her burden of proving 

that a public policy exception to the employment at-will doctrine 

existed regarding her termination by [IDEM]. 

Appellant’s App., Vol. II at 47, ¶ 44. Esserman objected to the ALJ’s

determination on May 5, 2016 and a hearing was conducted before the SEAC 

on August 9. The SEAC issued a final order incorporating portions of the nonfinal order on August 23. Esserman then filed a petition for judicial review on 

September 1, and the trial court heard argument on July 10, 2018. The trial 

court then issued an order granting summary judgment in favor of IDEM on 

September 4, 2018. The trial court’s findings of fact and conclusions of law 

provided:

I. Findings of Fact

* * *

6. From 2009 until [Esserman’s] termination in 2014, 

[Esserman] received “Does Not Meet Expectations” in 

performance ratings.

7. In May 2011, [Esserman] filed a sexual harassment complaint 

against two coworkers. At that time, [Esserman] worked in the 

Finance and Operations Section of OLQ. After filing the 

complaint, [Esserman] went on Family Medical Leave (“FML”) 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 5 of 29

for six months in June 2011 during which time the Indiana State 

Personnel Department (“SDP”) investigated the complaint.

8. SDP ultimately concluded the sexual harassment complaint

had no merit. [Esserman’s] claims include an allegation that she 

was fired due to filing that complaint.

9. After [Esserman] returned from FML in December 2011, her 

then supervisor recommended that [Esserman] be terminated due 

to poor performance reviews, but [Esserman] was instead 

transferred to a different section, ELFT, by the Department’s 

Commissioner where [Esserman] became an SEM1.

10. [Esserman’s] new supervisors in ELFT were aware of 

[Esserman’s] past negative performance evaluations.

11. [Esserman’s] duties as an SEM1 included reviewing claims 

for reimbursement from the state for accuracy.

l2. [Esserman] took FML from March 2012-Apri1 2012.

13. On July 30, 2012 [Esserman] was given a written reprimand 

for behavior at work.

14. [Esserman] was given an Interim Appraisal covering the 

period of January 1, 2012-October 1, 2012, which rated 

[Esserman] as “Does Not Meet Expectations.”

15. After this Interim Appraisal, [Esserman] was given a Work

Improvement Plan (“WIP”) by her supervisor designed to focus 

on three key components of [Esserman’s] job. This plan was 

never completed due to concerns about accommodating 

[Esserman’s] disability and was not used in evaluating 

[Esserman’s] performance.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 6 of 29

16. On November 30, 2012, [Esserman] met with SPD to discuss

accommodating her disability. [Esserman] informed SPD of her 

need to frequently use the restroom. SPD instructed the 

building’s cleaning staff to leave extra toilet paper for [Esserman]

to use.

17. [Esserman] took FML from January 23, 2013-June 2, 2013.

When [Esserman] returned to work, her hours were restricted to 

twenty hours per week for the first four weeks and thirty hours 

per week for the next two weeks. [Esserman] was hospitalized 

on June 25-26, 2013.

18. After a doctor’s appointment on July 5, 2013, [Esserman]

worked until July 22, 2013 on a reduced schedule after which she 

returned to a full-time work schedule until she took FML again 

from August 13, 2013 to October 21, 2013.

19. In 2013, [Esserman’s] performance expectations required her 

to review at least $1.4 million in claims per year with 90% 

accuracy.

20. In an effort to increase departmental efficiency, all ELTF 

claims reviewers were instructed to apply “reduced scrutiny” to 

entities that are known to generally submit good claims.

21. [Esserman] claimed this instruction violated Indiana law and 

so she refused to comply with the reduced scrutiny instruction. 

[Esserman] was reassigned to claims to which that instruction did 

not apply. [Esserman’s] objection did not play a role in her 

termination.

22. [Esserman] claims she was fired in violation of public policy 

for refusing to apply reduced scrutiny to certain claims.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 7 of 29

23. [Esserman], like all employees, had a program on her 

computer that tracked her progress towards her goal. 

[Esserman’s] supervisor by the end of 2014 was checking 

[Esserman’s] progress every week.

24. [Esserman] was rated as “Does Not Meet Expectations” for

her 2013 annual review. [Esserman’s] expectations were 

adjusted to take into account her FML leave and disability 

accommodations.

25. The Assistant Commissioner of Land Quality recommended 

[Esserman] be terminated for repeatedly failing to meet 

expectations.

26. The Commissioner terminated [Esserman] on January 17, 

2014.

27. [Esserman] claims this termination violated Ind. Code § 5-

11-5.5-8, that she was fired in violation of public policy, that she 

was fired in retaliation for reporting sexual harassment, that she 

has a claim for whistleblower retaliation under Ind. Code § 4-15-

10-4, and that she was terminated in retaliation for her disability.

II. Conclusions of Law

28. [Esserman] seeks judicial review of the SEAC ALJ’S 

findings and requests that this Court order the agency to either 

reinstate [Esserman] or compensate her for lost income.

29. This Court may only remand the decision to the ALJ if his 

decision is (1) arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law, (2) contrary to 

constitutional right, power, privilege, or immunity, (3) in excess

of statutory jurisdiction, authority, or limitations, or short of 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 8 of 29

statutory right, or . . . (4) without observance of procedure 

required by law, or (5) unsupported by substantial evidence 

pursuant to Ind. Code § 4-21.5-5-14(d). See Indiana Same Bd. of 

Health Facility Adm’rs v. Werner, 841 N.E.2d 1196 (Ind. Ct. App. 

2006). Ind. Code § 4-15-2.2-42 explicitly states that proceedings 

before SEAC are governed by AOPA.

30. The requested relief is unavailable. [Esserman] requests that 

this Court either reinstate her to her former position or order 

[IDEM] to compensate [Esserman] financially. However, if a 

court finds on judicial review that a final agency action is 

improper, it only has the power to remand the matter back to the

agency for further proceedings. Ind. Code § 4-21.5-5-15. The 

Court of Appeals has “frequently concluded that remand is the

appropriate remedy for improper administrative agency action.” 

[Werner, 841 N.E.2d at 1209]. A court may not instruct an 

agency to take any specific action without first having given the 

agency an opportunity to correct any errors this Court finds. 

Indiana Family and Social Services Admin. v. Culley[,] 769 N.E.2d 

680, 684-685 (Ind. Ct. App. 2002) (citations omitted).

31. This Court must afford “due deference” to the agency’s 

decisions because it has “expertise in its given area.” Ballard v. 

Book Heating & Cooling, Inc., 696 N.E.2d 55, 56 (Ind. Ct. App. 

1998). An interpretation of statutes and regulations by the 

administrative agency charged with the duty of enforcing those

regulations and statutes is entitled to great weight unless the 

interpretation would be inconsistent with the law itself. LTV

Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000).

32. A “court must review the record of proceedings in the light 

most favorable to the administrative proceeding.” Brennan v. Bd. 

of Zoning Appeals of Evansville and Vanderburgh County, 695 N.E.2d 

983, 985 (Ind. Ct. App. 1998) (citing John Malone Enterprises, Inc. 

v. Schaffer, 674 N.E.2d 599, 605 (Ind. Ct. App. 1996)). A trial 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 9 of 29

court may not “reweigh the evidence or reassess witness 

credibility.” Andrianova v. Ind. Family Soc. Servs. Admin, 799 

N.E.2d 5, 7 (Ind. Ct App. 2003).

33. [Esserman] claims that the ALJ erred by granting [IDEM’s]

Motion for Partial Summary Judgment with respect to

[Esserman’s] claims that she was fired for refusing to break the 

law because the ALJ based his opinion on improperly designated 

evidence and because the facts support [Esserman’s] case. Both 

claims fail.

34. The ALJ did not rely on improperly designated evidence in 

granting summary judgment to the State. The State properly 

filed a motion for partial summary judgment and the ALJ 

properly applied the summary judgment standard. Choosing not 

to designate affidavits, depositions, or other sworn testimony or

documents does not change a motion for partial summary 

judgment into a motion to dismiss.

35. [Esserman’s] claimed disputed material fact, that she could

have been personally liable for the crime of fraud, theft, or 

deception, is not a factual assertion, but merely an unsupported

legal conclusion which was properly rejected by the ALJ on the 

motion for partial summary judgment. All of these crimes 

require intent. See Wright v. Pennamped, 657 N.E.2d 1223, 1230 

(Ind. Ct. App. 1995)(intent to deceive required for fraud); Ind. 

Code § 35-43-4-2(a)(theft requires intent to deprive); Ind. Code § 

35-43-5-3(a)(2)-(3)(requiring knowledge or intent for the crime of 

making a false statement). The ALJ properly found no evidence 

suggesting [Esserman] would have had the requisite intent or 

knowledge to be liable for of any of these crimes and so properly 

denied the claim. Additionally, the ALJ concluded that

[Esserman] would not have been personally liable for misuse of 

state resource [sic], a conclusion that is both reasonable in light 

of the statutory scheme and within the agency’s area of expertise, 

and so is deserving of this Court’s deference.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 10 of 29

36. [Esserman] argues the ALJ improperly excluded evidence on 

illegal activity. This claim also fails. Whether or not there was 

in fact a violation of the law is not relevant for determining if the 

whistleblower statute, Ind. Code § 4-15-10-4, applies. That 

statute only requires that an employee make “a reasonable 

attempt to ascertain the correctness of any information.” The 

veracity of a whistleblower’s report is not relevant in determining 

whether the whistleblower was illegally terminated in retaliation 

for making the report, and so evidence concerning any alleged 

illegal activity in this case is not relevant. [Esserman] claims that 

she was fired for refusing to do something she thought was 

illegal. The ALJ reached the opposite conclusion: [Esserman]

was not fired for her objection to giving certain documents less 

scrutiny.

37. [Esserman’s] claim that there was a failure to accommodate 

also fails. The ALJ reviewed the evidence and concluded that

her supervisors were telling the truth when they determined that 

[Esserman’s] termination was unrelated to her accommodation. 

This court may not “reweigh the evidence or reassess witness

credibility.” [Andrianova, 799 N.E.2d at 7]. There is enough 

evidence to support the ALJ’S conclusion that it cannot be said 

to be unsupported by substantial evidence, arbitrary, capricious, 

or contrary to law. [Esserman’s] claimed defects, such as 

claiming the required $1.4 million of reviewed claims was not 

adjusted for [Esserman’s] disability or that the October 2012 WIP 

were improperly used in [Esserman’s] termination, is a request to 

reweigh the facts and reach the opposite conclusion of the ALJ 

which this Court may not do.

38. [Esserman] claims that the ALJ’s statement that there were 

problems with both the “quality and quantity” of her work is 

reversible error. This claim also fails. There is substantial 

evidence in the record demonstrating problems with the quality 

of [Esserman’s] work, and as such the ALJ’s statement cannot be 

said to be arbitrary. Even if the ALJ is mistaken and this Court 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 11 of 29

finds that there was not substantial evidence supporting a 

conclusion that there were issues with the quality of [Esserman’s]

work, the ALJ’s error is harmless. The result would not change 

if the word “quality” was removed, as the ALJ’s written decision 

makes clear that the primary reason for the termination of 

[Esserman’s] employment involved issues with the quantity of 

work completed.

39. [Esserman] claims the ALJ failed to address substantial 

evidence relevant to all of her claims. This claim also fails. The 

ALJ’s decision covers each claim and the relevant facts in detail. 

The agency further instructed the ALJ to cover other theories of 

liability as well after the ALJ issued his Non-Final Order[.] This 

court may not “reweigh the evidence or reassess witness 

credibility.” [Andrianova,] 799 N.E.2d at 7. The ALJ addressed 

substantial evidence relevant to all of [Esserman’s] claims and 

ruled against [Esserman]. [Esserman’s] reasoning for why the 

ALJ’s conclusions on the sexual harassment complaint, disability 

accommodation, and reasons for termination were improper 

amount to a request that this Court reweigh the evidence and 

find in [Esserman’s] favor. The ALJ’s conclusion cannot be said 

to be unsupported by substantial evidence, arbitrary, capricious, 

or contrary to law and so the conclusions of the ALJ cannot be 

disturbed.

Appealed Order at 1-10. Esserman now appeals. 

Discussion and Decision 

I. Standard of Review 

[5] Esserman challenges the trial court’s order upholding the SEAC’s 

administrative decision. Under the Administrative Orders and Procedures Act
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 12 of 29

(“AOPA”), a court may grant relief only if it determines that a person seeking 

judicial relief has been prejudiced by an agency action that is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law; (2) contrary to constitutional right, 

power, privilege, or immunity; (3) in excess of statutory 

jurisdiction, authority, or limitations, or short of statutory right;

(4) without observance of procedure required by law; or (5) 

unsupported by substantial evidence.

Ind. Code § 4-21.5-5-14(d). 

[6] The “burden of demonstrating the invalidity of agency action is on the party to 

the judicial review proceeding asserting invalidity.” Ind. Code § 4-21.5-5-14(a). 

“Our review of agency action is intentionally limited, as we recognize an 

agency has expertise in its field and the public relies on its authority to govern 

in that area.” Ind. Alcohol and Tobacco Comm’n v. Spirited Sales, LLC, 79 N.E.3d 

371, 375 (Ind. 2017). Although we “defer to the agency’s findings if they are 

supported by substantial evidence[,]” we review an agency’s conclusions of law 

de novo. Moriarity v. Ind. Dep’t of Nat. Res., 113 N.E.3d 614, 619 (Ind. 2019). 

Moreover, we do not reweigh the evidence; rather, we consider the record in 

the light most favorable to the agency’s decision. Ind. State Ethics Comm’n v. 

Sanchez, 18 N.E.3d 988, 992 (Ind. 2014). We affirm the agency’s judgment 

unless it is clearly erroneous. Id. 

[7] Here, IDEM partially disposed of Esserman’s claims through summary 

judgment. Under AOPA, an ALJ considers a motion for summary judgment as 

a court would under Trial Rule 56(C). Ind. Code § 4-21.5-3-23(b). Summary 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 13 of 29

judgment is a tool which allows a trial court to dispose of cases where only legal 

issues exist. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The moving 

party has the initial burden to show the absence of any genuine issue of material 

fact as to a determinative issue. Id. An issue is “genuine” if a trier of fact is 

required to resolve the truth of the matter, while a fact is “material” if its 

resolution affects the outcome of the case. Id. As opposed to the federal 

standard which permits the moving party to merely show the party carrying the 

burden of proof lacks evidence on a necessary element, Indiana law requires the 

moving party to “affirmatively negate an opponent’s claim.” Id. (quotation 

omitted). The burden then shifts to the non-moving party to come forward with 

contrary evidence showing an issue to be determined by the trier of fact. Id. 

We construe all factual inferences in favor of the non-moving party and resolve 

all doubts as to the existence of a material issue against the moving party. 

Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Indeed, summary judgment 

is appropriate only when “the designated evidentiary matter shows that there is 

no genuine issue as to any material fact and that the moving party is entitled to 

a judgment as a matter of law.” Ind. Trial Rule 56(C). 

II. Refusal to Break the Law 

[8] Esserman argues the trial court erred in concluding she could not establish a 

claim that she was discharged for refusing to break the law for which she could 

be personally liable and by concluding that the SEAC properly dismissed this

claim on summary judgment. 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 14 of 29

[9] Specifically, Esserman alleged in her complaint:

I am subject to personal liability for misuse of State funds, or

conspiracy to misuse State funds under [the Indiana False Claims 

Act (“IFCA”)], as well as under Indiana statutes and common 

law prohibiting fraud, theft and deception. I therefore could not

simply sign-off on claims for dispersal of State funds without 

reviewing them, when I knew they contained fraudulent charges, 

and when signing meant I had actually reviewed them. My 

refusal to do so resulted in the termination of my employment in 

violation of Indiana public policy.

Appellant’s App., Vol. II at 62. 

[10] In McClanahan v. Remington Freight Lines, our supreme court recognized an 

exception to the employment at will doctrine when it upheld a wrongful 

discharge claim for damages by a truck driver who alleged he was fired for 

refusing to violate Illinois state weight limits. 517 N.E.2d 390, 393 (Ind. 1988). 

Thus, under common law, an employee cannot be terminated from 

employment for refusing to break a law for which he or she could be personally 

liable. See id. 

A. IFCA

[11] Esserman claims she was terminated for refusing to the violate the IFCA. 

Modeled after the federal False Claims Act, 31 U.S.C. §§ 3729-3733, the IFCA

applies to fraud committed against the State of Indiana. Ind. Code § 5-11-5.5-2. 

The IFCA provides, in relevant part:
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 15 of 29

A person[3] who knowingly or intentionally:

(1) presents a false claim to the state for payment or 

approval; 

(2) makes or uses a false record or statement to obtain

payment or approval of a false claim from the state; 

* * * 

(7) conspires with another person to perform an act 

described in subdivisions (1) through (6); or

(8) causes or induces another person to perform an act 

described in subdivisions (1) through (6);

is, except as provided in subsection (c), liable to the state for a 

civil penalty of at least five thousand dollars ($5,000) and for up 

to three (3) times the amount of damages sustained by the state. 

In addition, a person who violates this section is liable to the 

state for the costs of a civil action brought to recover a penalty or 

damages. 

Ind. Code § 5-11-5.5-2(b). 

[12] Applied here, Esserman alleges she would have been subject to personal 

liability under the IFCA if she had signed-off on “claims for dispersal of State 

funds without reviewing them, when [she] knew they contained fraudulent 

 

3

“Person” is defined to include “a natural person, a corporation, a firm, an association, an organization, a 

partnership, a limited liability company, a business, or a trust.” Ind. Code § 5-11-5.5-1(5).
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 16 of 29

charges, and when signing meant [she] had actually reviewed them.”

Appellant’s App., Vol. II at 62. On summary judgment, the ALJ reasoned 

Esserman had “failed to assert how she could be personally liable under the 

IFCA[,]” because she did not claim that she 

knowingly or intentionally presented a false claim to the state, 

nor does she assert that she gave false information to obtain 

payments from the state. I.C. §§ 5-11-5.5-2(b)(1), (2). 

Additionally, [Esserman’s] argument that she might be 

personally liable for conspiring to perform the aforementioned 

actions is misplaced. While [Esserman] “is not required to show 

an express agreement” between herself and those presenting false 

claims, she “must produce more than ‘a whiff of the alleged 

conspirators’ assent.’” United Stares ex rel. Durcholz v. FXW Inc., 

189 F.3d 542, 546 (7th Cir. 1999). Simply approving of the

documentation before her does not rise to the level of presenting 

a false claim or false information for payment, nor does it show 

her tacit agreement with those that were allegedly presenting 

false claims to the ELTF. [Esserman’s] bald assertion that she 

could have been liable under the IFCA, without further evidence, 

does not “support the inferential leaps that would be required to 

conclude that” [Esserman] conspired with those presenting false 

claims to the state. Id. Thus there is no genuine issue of material 

fact concerning [Esserman’s] alleged personal liability under the 

IFCA.

Id. at 58-59, ¶ 15, 17. The trial court then affirmed the SEAC’s disposal of 

Esserman’s claims on summary judgment, reasoning:

the ALJ concluded that [Esserman] would not have been 

personally liable for misuse of state resource [sic], a conclusion 

that is both reasonable in light of the statutory scheme and within 

the agency’s area of expertise, and so is deserving of this Court’s 

deference.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 17 of 29

Appealed Order at 8, ¶ 35. 

[13] Notably however, an administrative agency’s interpretation of a statute is only 

entitled to deference when: (1) the administrative agency is charged with the 

duty of enforcing the statute; and (2) when that interpretation is not inconsistent 

with the statute itself. Moriarity, 113 N.E.3d at 619. Here, as the SEAC itself

explained, it is not charged with the duty of enforcing the IFCA:

the IFCA requires that an employee bring an action under 

[Indiana Code section 5-11-5.5-8(a)(2)] in “any court with 

jurisdiction.” I.C. § 5-11-5.5-8(c). “SEAC is an executive branch 

administrative agency, not a court.” Meeks v. Indiana Dept. of

Transp., Further Procedural Order RE: Amended Complaint, 

State Emp. App. Comm’n No. 12-13-106 (Jan. 21, 2014). Thus, 

SEAC is without jurisdiction to hear [Esserman’s] claims brought

under the IFCA.

Appellant’s App., Vol. II at 58, ¶ 14.4 As the SEAC was not “charged with the 

duty of enforcing the statute[,]” the trial court’s deference to the SEAC’s 

interpretation was therefore misplaced.5 Moriarity, 113 N.E.3d at 619.

 

4 The SEAC later more succinctly explained:

The parties are reminded that [the] SEAC is without jurisdiction to hear claims regarding the 

legitimacy of [Esserman’s] assertion that state funds were being misused. [The] SEAC only has 

the jurisdiction to determine whether [Esserman’s] termination was a result of her filing a 

written report that state funds were being misused.

Id. at 60, n.4. 

5 Esserman’s claim under the IFCA fell under the purview of the SEAC only by application to her discharge 

of employment. The SEAC’s jurisdictional statute provides that “[a]n employee in the unclassified service 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 18 of 29

[14] Even if the SEAC was charged with enforcing the IFCA, however, we would 

still conclude its interpretation was “inconsistent with the statute itself.” Id. 

Once again, the IFCA subjects persons to liability for, inter alia, “knowingly or 

intentionally” presenting “a false claim to the state for payment or approval[.]” 

Ind. Code § 5-11-5.5-2(b)(2). The SEAC concluded that “[s]imply approving of

the documentation . . . does not rise to the level of presenting a false claim or 

false information for payment[.]” Appellant’s App., Vol. II at 58, ¶ 17. But 

Esserman’s allegation was not simply that she was asked to forgo performing 

her due diligence. Rather, Esserman alleged that she “knew [the claims] 

contained fraudulent charges[.]” Appellant’s App., Vol. II at 62. The IFCA 

defines “knowingly” as having actual knowledge of the information, acting in 

deliberate ignorance of the truth or falsity of the information, or acting in 

reckless disregard of the truth or falsity of the information. Ind. Code 5-11-5.5-

1(4). Therefore, Esserman possessed the requisite mens rea to be personally 

liable under the statute and the next question becomes whether Esserman’s 

 

may be dismissed, demoted, disciplined, or transferred for any reason that does not contravene public 

policy.” Ind. Code § 4-15-2.2-24(b). Indiana Code section 4-15-2.2-42(f) further provides: 

An unclassified employee must establish that the [SEAC] has subject matter jurisdiction to hear 

the employee’s wrongful discharge claim by establishing that a public policy exception to the 

employment at will doctrine was the reason for the employee’s discharge. The former employee 

has the burden of proof on this issue.

And, as our supreme court held in McClanahan, “firing an employee for refusing to commit an illegal act for 

which he would be personally liable is as much a violation of public policy declared by the legislature as 

firing an employee for filing a workmen’s compensation claim.” 517 N.E.2d at 393. 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 19 of 29

approval of a claim would constitute “presenting” a claim under the IFCA.6 See

Ind. Code § 5-11-5.5-2(b)(1). 

[15] The crux of the SEAC’s grant of summary judgment and IDEM’s argument on 

appeal can be summarized as: because Esserman was not the person originally 

“presenting” a false claim, or benefiting from its payment, she could not be 

liable under the statute. See Appellee’s Brief at 27-30; Appellant’s App., Vol. II 

at 58-59, ¶ 15, 17. However, the relevant provision of the IFCA applies to 

persons who “present[] a false claim to the state for payment or approval[.]” 

Ind. Code § 5-11-5.5-2(b)(1) (emphasis added). Nothing in Indiana Code 

section 5-11-5.5-2 exempts state employees from personal liability under the 

statute and, had the legislature so intended, it certainly knew how to do so. 

Furthermore, nothing in the statute requires the person presenting the claim for 

payment or approval to be the beneficiary of the claim. In the absence of these 

two limitations, we are unaware of any reason state employees knowingly or 

intentionally approving claims with “fraudulent charges[,]” Appellant’s App., 

Vol. II at 62, and then presenting those claims for payment, would not be 

 

6

“Presents” is not defined within the IFCA. See Ind. Code § 5-11-5.5-1. Undefined words in a statute or 

ordinance are given their plain, ordinary, and usual meaning. Ind. Code § 1-1-4-1(1) (“Words and phrases 

shall be taken in their plain, or ordinary and usual, sense.”) “In determining the plain and ordinary meaning 

of a term, courts may use English language dictionaries as well as consider the relationship with other words 

and phrases.” Flying J., Inc. v. City of New Haven, Bd. of Zoning Appeals, 855 N.E.2d 1035, 1040 (Ind. Ct. App. 

2006), trans. denied. In this context, “present” is defined as “to bring, offer, or give, often in a formal or 

ceremonious way;” or “to hand over or submit, as a bill or a check, for payment[.]” Dictionary.com, 

https://www.dictionary.com/browse/present (last visited April 3, 2019).
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 20 of 29

subject to personal liability under the statute.

7 Accordingly, we believe 

Esserman sufficiently pleaded a violation of the law for which she could have 

been subject to personal liability had she not refused to do so. The SEAC’s 

grant of summary judgment on such an interpretation was therefore clearly 

erroneous. Sanchez, 18 N.E.3d at 992. 

B.Designated Evidence 

[16] IDEM focused its arguments on summary judgment and appeal on the question 

of whether Esserman’s allegations could have subjected her to personal liability 

under the IFCA. Having concluded Esserman’s allegations could have

subjected her to personal liability but mindful that a grant of summary 

judgment is sustainable upon any theory supported by the designated evidence, 

see Miller v. Danz, 36 N.E.3d 455, 456 (Ind. 2015), we turn to the question of 

whether IDEM “affirmatively negate[d]” Esserman’s claim on summary 

judgment, Hughley, 15 N.E.3d at 1003. We conclude that IDEM did not. 

[17] In support of its motion for summary judgment, IDEM designated the 

following evidence: (1) Esserman’s civil service employee complaint along with 

five letters sent by Esserman’s counsel to various IDEM employees/entities 

incorporated as exhibits; (2) Esserman’s termination letter; and, (3) a copy of 

the SEAC opinion in Meeks v. INDOT, SEAC No. 12-13-106 (Jan. 21, 2014). 

 

7 We note that the IFCA’s requisite mens rea, “knowingly or intentionally,” serves to shield innocent 

mistakes within an employee’s job duties. Ind. Code § 5-11-5.5-2(b).
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 21 of 29

See Appellant’s App., Vol. III at 62. Notably, while it appears that Esserman 

did not designate any evidence in response to IDEM’s motion for summary 

judgment,

8

such an obligation arises only after IDEM first “demonstrate[s] the 

absence of any genuine issue of fact as to a determinative issue.” Hughley, 15 

N.E.3d at 1003. 

[18] Although the termination letter set forth a legitimate reason for Esserman’s 

termination, it failed to affirmatively negate Esserman’s claim. Indeed, the very 

essence of Esserman’s claim was that IDEM’s proffered explanation for her 

termination was duplicitous of its true motivation, i.e., that she was terminated 

for refusing to break the law. IDEM could have designated evidence in the 

form of an affidavit, Esserman’s employment records, or other evidence that 

tended to prove Esserman was not terminated for such a reason. See Converse v. 

Elkhart General Hospital, Inc., 120 N.E.3d 621, 626 (Ind. Ct. App. 2019). 

However, because it failed to do so, “[t]he question of the existence of a 

retaliatory motive for a discharge is a question for the trier of fact.” McGarrity v. 

Berlin Metals, Inc., 774 N.E.2d 71, 79 (Ind. Ct. App. 2002), trans. denied. 

Accordingly, the grant of summary judgment in IDEM’s favor was improper.9 

 

8

 As noted above, see supra n.1, the record clearly indicates that Esserman filed a response to IDEM’s motion 

for summary judgment but Esserman’s response is not included in the Appellant’s or Appellee’s Appendices. 

See, e.g., Appellant’s App., Vol. II at 49, 58.

9 Because we conclude genuine issues of material fact on Esserman’s claim of wrongful discharge for refusal 

to break the law remain regarding the IFCA, we need not address the alternative theories of fraud, theft, 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 22 of 29

III. Substantial Evidence

[19] Esserman also argues the SEAC’s decision was not supported by substantial 

evidence. Specifically, she contends that substantial evidence demonstrates that 

her termination was related to her disabilities, request for accommodations, and 

unrelated to the quality of her work; she was retaliated against for reporting 

sexual harassment and ghost employment; she was given contradictory 

instructions and management did not account for her absences; she was 

terminated for her refusal to “rubber stamp” claims; and her negative 2013 

performance appraisal contains mistakes concealed by her supervisor. Brief of 

Appellant at 3.

[20] Our standard for reviewing administrative agency decisions is well settled. 

Whirlpool Corp. v. Vanderburgh Cty.-City of Evansville Human Relations Comm’n, 

875 N.E.2d 751, 759 (Ind. Ct. App. 2007). To determine whether an 

administrative decision is supported by substantial evidence, a trial court must 

examine the whole record to determine whether the decision “lacks a 

reasonably sound basis of evidentiary support.” 255 Morris, LLC v. Ind. Alcohol 

& Tobacco Comm’n, 93 N.E.3d 1149, 1153 (Ind. Ct. App. 2018). 

[This court] may not substitute [its] judgment on factual matters 

for that of the agency and [is] bound by the agency’s findings of 

fact if [the findings] are supported by substantial evidence. [We] 

 

and/or deception. See D.H. by A.M.J. v. Whipple, 103 N.E.3d 1119, 1134 n.4 (Ind. Ct. App. 2018), trans. 

denied. For the same reason, we also need not address Esserman’s argument regarding the exclusion of 

evidence. Id. 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 23 of 29

review the record in the light most favorable to the administrative 

proceedings and are prohibited from reweighing the evidence or 

judging the credibility of witnesses. 

Id. (quotation omitted).

[21] Substantial evidence is defined as “more than speculation and conjecture yet 

less than a preponderance of evidence. Substantial evidence means such 

relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.” State v. Mills, 76 N.E.3d 861, 870 (Ind. Ct. App. 2017), trans. 

denied. Based on our review of the record, we conclude that the SEAC’s 

decision that Esserman’s termination was unrelated to her disabilities, 

accommodation requests, or sexual harassment complaint was supported by 

substantial evidence. Therefore, the trial court did not err in this respect.

A. Disability Claims

[22] Esserman claims she was retaliated against because of her disability and 

necessary accommodations. In November 2012, Esserman met with the 

Indiana State Personnel Department (“SPD”) to discuss accommodations for 

her disabilities. At that time, Esserman notified SPD that her disabilities caused 

her to use the restroom frequently. She was terminated in January 2014.

[23] A prima facie case of disability discrimination in employment is established 

when a plaintiff proves: (1) he or she is disabled within the meaning of the 

Americans with Disabilities Act; (2) his or her work performance met the 

employer’s legitimate expectations; (3) an adverse employment action; and (4) 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 24 of 29

“the circumstances surrounding the discharge indicate it is more likely than not 

that [the] disability was the reason for discharge.” Powdertech, Inc. v. Joganic, 

776 N.E.2d 1251, 1256 (Ind. Ct. App. 2002). There is no dispute that Esserman 

meets the first and third elements. However, the ALJ found that her work did

not meet IDEM’s legitimate expectations and the circumstances of her 

termination did not point to her disability as the reason for termination. 

Relevant evidence in the record supports such a conclusion.

[24] The ALJ also concluded that Esserman was not retaliated against because she 

had a disability or for being accommodated, conclusions also supported by 

substantial evidence in the record. To prove retaliation, Esserman must 

demonstrate that (1) she engaged in statutorily protected activity; (2) she 

suffered a material adverse action; and (3) there is a causal link between the 

two. Gaff v. Indiana-Purdue Univ. of Fort Wayne, 51 N.E.3d 1163, 1166 (Ind. 

2016). The ALJ determined that Esserman was terminated due to poor 

performance rather than her disabilities or accommodations.

[25] Peggy Dorsey, Deputy Assistant Commissioner of IDEM, testified to 

Esserman’s performance issues. Dorsey stated that Esserman was not held 

responsible for work while she was on family medical leave. Instead, Esserman 

was responsible for work that was assigned while she was at the agency and 

Esserman failed to finish work that should have been complete weeks or 

months before she went on leave. Dorsey explained, “These documents were 

very delinquent, not just a few days. There weren’t tight time frames when 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 25 of 29

[Esserman] received these documents. She had plenty of time.” Appellant’s 

App., Vol. II at 149.

[26] According to Bobbi Steiff, Esserman’s supervisor and section chief of ELTF, 

claims are required to be processed within sixty days pursuant to statute. When 

Esserman returned to work part-time in June 2013, Steiff told Esserman she had 

two weeks to complete one week’s work given her part-time schedule, but 

Esserman failed to meet expectations and did not work efficiently. In 2013, a 

monthly quota of reviewing $1.4 million in claims was implemented for all 

senior environmental managers, including Esserman. Although the other 

SEMs were meeting expectations, Esserman was not. Steiff explained that she 

did take into account Esserman’s approved leave in Esserman’s 2013 

performance evaluation, the purported basis for her termination. Specifically, 

the evaluation was prorated based on the number of hours Esserman worked, 

including sick and vacation days. See id. at 179. In fact, IDEM’s policy was to 

adjust an employee’s performance expectations to account for any family 

medical leave. Id. at 199. Although Steiff testified that she erred by including 

two expectations in the 2013 appraisal that should have been omitted, 

Esserman’s overall rating, namely “does not meet expectations,” would not 

change despite the mistake and she still failed to meet her top priorities.

[27] Bruce Palin, Assistant Commissioner of IDEM, testified that he recommended 

Esserman’s termination for failure to meet performance expectations

repeatedly. Similarly, Kent Abernathy, former chief of staff of IDEM, stated 

that Esserman’s performance consistently fell “significantly below” the goals. 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 26 of 29

Id. at 199. Craig Schroer, the branch chief, also testified that Esserman failed 

to achieve the quantity measures despite being capable of meeting the monthly 

goals. In a meeting, Shroer informed Esserman that the basis for her 

termination was her inadequate performance and he specifically demonstrated 

that she was not meeting quotas. Additionally, he was of the opinion that 

Esserman was “unwilling to follow the direction of her supervisor as to how to 

do claim reviews and senior [quality control] reviews.” Id. at 164. 

[28] Furthermore, there is no evidence that Esserman was ever denied the 

accommodations she requested, a fact Esserman admits, and she indicated in 

her meeting with SPD she did not believe her frequent trips to the restroom

impacted her work. In 2012, Esserman was placed on a Work Improvement 

Plan (“WIP”); however, the WIP was suspended while her accommodations 

were being addressed and the WIP was not reinstated. Despite the 

accommodations and a prorated evaluation, accounting for Esserman’s 

approved leave, she was unable to meet IDEM’s expectations. Therefore, the 

evidence in the record supports the ALJ’s determination that Esserman’s 

termination was unrelated to her disabilities or accommodations.

10

 

 

10 Although not raised in her brief, the ALJ concluded Esserman’s “cat’s paw” theory of liability failed, 

concluding “there was no animus on the part of [IDEM] that affected the decision to terminate [Esserman] 

and that the decision to terminate was based solely on [Esserman’s] inability to perform the work assigned to 

her.” Appellant’s App., Vol. II at 29. Substantial evidence also supports this conclusion.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 27 of 29

B. Sexual Harassment Complaint

[29] To prove a retaliation claim for reporting sexual harassment, Esserman must 

demonstrate the following essential elements: (1) she engaged in statutorily 

protected activity; (2) she suffered a material adverse action; and (3) there is a 

causal link between the two. Gaff, 51 N.E.3d at 1166. There is no dispute that 

Esserman engaged in protected activity in filing a complaint of sexual 

harassment and that she ultimately suffered a material adverse employment 

action, namely termination. However, the ALJ determined that Esserman 

failed to establish a causal connection between her complaint and 

termination. Specifically, the ALJ found that the timing in the case did not 

help to establish a causal link between the complaint and termination.

[30] A causal nexus may be established through direct evidence or through a 

“convincing mosaic of circumstantial evidence permitting that same 

inference.” Jajeh v. Cty. of Cook, 678 F.3d 560, 570 (7th Cir. 2012) (internal 

quotation omitted). There are three categories of circumstantial evidence under 

this approach: “(1) suspicious timing, ambiguous statements and other bits and 

pieces from which an inference of retaliatory intent might be drawn; (2) 

evidence that similarly situated employees were treated differently; and (3) 

evidence that the employer offered a pretextual reason for an adverse 

employment action.” Id.

[31] With respect to Esserman’s sexual harassment claim, IDEM contends the 

“timeline of this case demonstrates how Esserman’s sexual harassment 

complaint is distant both in time and space from her termination.” Appellee’s 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 28 of 29

Br. at 37. However, Esserman maintains that the finding that the “separation in 

time between the original complaint and the termination negates any causal 

connection between the two does not comport with the facts.” Br. of Appellant 

at 44. 

[32] The evidence in the record reveals that Esserman filed a sexual harassment 

complaint on May 19, 2011, and was fired over two and one-half years later on 

January 17, 2014. After filing her complaint, Esserman was on leave for six 

months during which time SPD investigated Esserman’s complaint. On 

November 30, 2011, SPD concluded its investigation and determined the 

alleged behavior was not “[i]nappropriate [c]onduct” and Esserman was not 

sexually harassed. Appellant’s App., Vol. II at 231. Although Esserman’s 

supervisor recommended that Esserman be terminated, IDEM Commissioner 

Easterly believed Esserman could potentially be successful at the agency in 

another position. As a result, Esserman was not terminated at that time but 

rather transferred to ELTF. After her transfer, Esserman continued to receive 

poor performance appraisals in 2011, 2012, and 2013. Even prior to her 

complaint, Esserman’s 2009 performance appraisal indicated her overall 

performance rating was “needs improvement.” Appellee’s App., Vol. II at 25. 

Ultimately, she was terminated in 2014 due to her most recent poor 

performance in 2013.

[33] In sum, there is substantial evidence in the record to support SEAC’s decision 

that Esserman’s termination was unrelated to her disabilities, accommodations,

or sexual harassment complaint. The bulk of Esserman’s argument amounts to 
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2375 | May 10, 2019 Page 29 of 29

an invitation for this court to reweigh the evidence, which we will not do. 255 

Morris, LLC, 93 N.E.3d at 1153. The trial court did not err in concluding 

SEAC’s decision was supported by substantial evidence.

Conclusion

[34] For the reasons set forth above, we conclude the trial court erred in affirming 

the SEAC’s grant of partial summary judgment, but the trial court did not err in 

concluding the SEAC’s decision determining that Esserman’s termination was 

unrelated to her disabilities, accommodations, or sexual harassment complaint 

was supported by substantial evidence. We therefore reverse in part, affirm in 

part, and remand to the trial court for further proceedings consistent with this 

opinion. 

[35] Reversed in part, affirmed in part, and remanded. 

Riley, J., and Kirsch, J., concur.