Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017 Page 1 of 34

ATTORNEYS FOR APPELLANT

Curtis T. Hill, Jr.

Attorney General of Indiana 

Frances Barrow

Kyle Hunter

Deputy Attorneys General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Steven T. Fulk

Fulk & Associates, LLC

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

State of Indiana, Indiana 

Department of Correction, and 

Indiana State Employees’ 

Appeals Commission, 

Appellants-Respondents, 

v. 

Debra Mills, et al., 

Appellees-Petitioners.

April 26, 2017

Court of Appeals Case No.

49A02-1605-PL-998 

Appeal from the Marion Superior 

Court

The Honorable Thomas J. Carroll, 

Judge

Trial Court Cause No.

49D06-1407-PL-25580 

Riley, Judge. 
Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017 Page 2 of 34

STATEMENT OF THE CASE

[1] Appellants-Respondents, State of Indiana (State), Indiana Department of 

Correction (DOC), and Indiana State Employees’ Appeals Commission 

(SEAC) (collectively, the State), appeal the trial court’s Order on Petition for 

Judicial Review, granting judgment in favor of Appellees-Petitioners, Debra 

Mills (Mills), Thomas Bird (Bird), Jay Matthews (Matthews), Chris Weeks 

(Weeks), Linda Rumple (Rumple), Darrel Miller (Miller), and Scott 

Gillenwater (Gillenwater) (collectively, the Employees).

1

[2] We affirm in part, reverse in part, and remand for further administrative 

proceedings. 

ISSUE

[3] The State raises three issues on appeal, which we consolidate and restate as the 

following single issue: Whether the trial court erred in reversing the Final 

Order of the SEAC based on the fact that the State presented substantial 

evidence that the Employees were laid off from their positions at the DOC in 

accordance with statutory requirements.

1 Two additional former DOC employees, Timothy Hygh (Hygh) and Jeffery Mellott (Mellott), participated 

in the merit complaint process as further described below; however, they did not join with the rest of the 

Employees in seeking judicial review of the SEAC’s administrative ruling and are not parties to this appeal. 

Facts pertaining to Hygh and Mellott are included where relevant.
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FACTS AND PROCEDURAL HISTORY

[4] In 2009, Indiana’s governor and the commissioner of the DOC implemented 

the “Facility Forward” initiative, which was designed to “enhance prison 

capacity, maximize current state property and assets, decrease spending 

through cost savings, and increase overall efficiencies, while still providing the 

utmost safety and security for the State of Indiana.” (Agency Record Vol. II, p. 

342). Part of the Facility Forward plan called for transferring the juvenile 

inmates from the Indianapolis Juvenile Correctional Facility (IJCF) in 

Indianapolis, Marion County, Indiana, to a new facility—the Madison Juvenile 

Correctional Facility (MJCF)—in Madison, Jefferson County, Indiana. The 

MJCF was slated for opening in October of 2009. Part of the cost-saving 

measures of the Facility Forward initiative also included replacing certain DOC 

employees with private contractors.

[5] On July 7, 2009, DOC administrators and representatives from the Indiana 

State Personnel Department (SPD) called for a meeting with the institutional 

teachers at the IJCF—i.e., the Employees. The Employees were notified that, 

in conjunction with the transfer of the juvenile offenders to the MJCF, the 

institutional teaching positions at IJCF were being eliminated because the DOC 

intended to fill the teaching roles through contracts with universities. 

Accordingly, the Employees’ employment would be terminated as of August 

14, 2009. During subsequent meetings with the Employees on July 10, 2009, 

and July 17, 2009, it was made clear to the Employees that they were being laid 
Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017 Page 4 of 34

off due to the elimination of their positions; they were not being terminated for 

cause.

[6] At the time, Indiana’s State Personnel Act was in effect, which set forth specific 

procedures to be used in the event of a layoff of merit employees in the State’s 

classified service (which, as the parties agree, applies to the Employees). See

Ind. Code § 4-15-2-32 (repealed by P.L. 229-2011, Sec. 269, effective July 1, 

2011). Upon a department head’s determination that a layoff was necessary, 

the department head was required to notify the director of the SPD, who would 

then compute the retention points of each employee within the affected class 

based upon the employees’ seniority, service ratings, veterans’ preference status, 

and employment status. I.C. § 4-15-2-32(a) (repealed 2011). These retention 

scores were to be utilized to determine the order of layoff, whether employees 

were eligible to displace (i.e., bump) others in the department, and the 

employees’ priority status on a re-employment list. I.C. § 4-15-2-32 (repealed 

2011). At each of the meetings discussing their impending layoff, the 

Employees requested copies of their retention scores. While a few Employees 

recalled that the SPD representatives promised to provide the retention scores at 

a subsequent meeting but failed to do so, other Employees stated that they were 

explicitly told that retention scores would not be figured because their positions 

were being eliminated and they had no bumping or other layoff rights. 

Regardless, it is undisputed that the Employees were not provided with a copy 

of their retention scores until after litigation commenced.
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[7] On July 31, 2009, the Employees filed individual merit complaints with the 

DOC, indicating that they were wrongfully terminated without cause, that their 

terminations were retaliatory, that they had not been advised of their retention 

points, that their bumping/reassignment rights were ignored, and that the 

timing of the termination created a hardship.2

 Although not all of the 

Employees sought specific relief, others explicitly requested to be retained in 

their current positions at their current salaries or to otherwise be reassigned as 

an institutional teacher at another DOC facility. On August 3, 2009, the DOC 

responded to the Employees and advised that it was unable to provide the 

requested relief. On August 14, 2009, the Employees were officially terminated 

from their institutional teaching positions with the DOC.

[8] Sometime after the July meetings, the Employees received letters regarding 

their layoffs and were asked to submit a form indicating whether they wanted to 

be considered for re-employment should any other institutional teaching

positions become available. All of the Employees opted to be placed on a reemployment list, with some of them specifying that they would be willing to 

work within any county in Indiana and with others indicating that they would 

accept employment only in certain counties. At the time he received his layoff 

letter, Bird also received notice that he was eligible to “bump” into a 

correctional sergeant or a correctional officer position; Bird declined these DOC 

 

2

 The Employees’ separate causes were consolidated by order of the administrative law judge on May 3, 

2013.
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employment opportunities. (Agency Tr. p. 155). In addition, shortly after the 

layoff, both Weeks and Mellott received letters, inviting them to accept an 

institutional teacher position in a DOC facility in Fort Wayne, Indiana. Weeks 

declined, but Mellott accepted the position; however, Mellott quit after thirteen 

weeks upon discovering that layoffs were imminent at that facility as well. 

Also, at some point after the layoff, both Miller and Hygh received letters from 

the SPD indicating that they had been declined for state jobs for which they had 

never applied.

[9] On August 18, 2009, the Employees appealed their terminations to the SPD. 

On August 25, 2009, the SPD denied the Employees’ merit complaints because 

it found that the DOC had followed the proper procedures for layoffs. The 

SPD further informed the Employees that they had been “placed on a Recall list 

for the Institutional Teacher classification and will remain on the list for one (1) 

year from the date of the layoff.” (Agency Record Vol. I, p. 7).

[10] On September 9, 2009, the Employees filed requests for administrative review 

with the SEAC,3 which would be heard by an administrative law judge (ALJ). 

On October 5, 2009, the ALJ conducted a prehearing conference and issued a 

Scheduling Order on October 13, 2009. Pursuant to the Scheduling Order, the 

“[SPD] [was to] calculate retention scores for [the Employees]. And [SPD] 

and/or [the DOC] [would] answer and document whether any institutional 

 

3

 The SEAC is statutorily authorized “[t]o hear or investigate those appeals from state employees . . . and 

fairly and impartially render decisions as to the validity of the appeals or lack thereof.” I.C. § 4-15-1.5-6(1). 
Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017 Page 7 of 34

teacher positions exist currently in Marion County. Depending on the 

for[e]going responses, [the Employees] [would] consider whether they wish to 

pursue any further theories of remedy or recovery and whether SEAC is the 

preferred forum for doing so.” (Agency Record Vol. I, p. 63). A telephone 

status conference was held on November 2, 2009, and the ALJ, again, 

subsequently issued a Scheduling Order. This Scheduling Order noted that the 

SPD had “provided [the Employees’] retention scores as required by law and 

[the DOC] ha[d] indicated [six] institutional teacher positions remain in Marion 

[County], [three] vocational teaching positions and [three] administrators.” 

(Agency Record Vol. I, p. 65).

[11] Almost two years later, on October 24, 2011, the Employees filed a motion for 

summary judgment. In support of their motion, the Employees argued that the 

DOC violated the State Personnel Act because it “intentionally created 

vacancies by firing the [Employees] in furtherance of [using private 

contractors], willfully refused to follow the statute regarding those vacancies, 

and further (inexplicably) refused to grant the [Employees] their retention 

scores or bumping rights pursuant thereto.” (Agency Record Vol. I, p. 94). On 

November 3, 2011, the ALJ ordered the Employees to supplement their 

summary judgment motion to show that they had higher retention scores than 

the remaining institutional teachers and that they were entitled to bump into the 

positions of those remaining teachers. The Employees requested permission 

from the ALJ to conduct additional discovery to compile retention scores, but 

the DOC responded that, on October 15, 2009, it had faxed “a table purporting 
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to be a listing of all Institutional Teacher 4 positions in Marion County on July 

7, 2009,” along with their retention scores. (Agency Record Vol. I, p. 283). 

Accordingly, determining that the Employees were in possession of all 

necessary information, the ALJ instructed them “to revise the chart so it 

indicates on its face its conformity and accuracy ‘as of’ the date of layoffs at 

issue, and so it indicates which positions survived the layoff.” (Agency Record 

Vol. I, p. 283).

[12] On February 27, 2012, the ALJ denied the Employees’ motion for summary 

judgment, finding that the Employees had failed to supplement their motion as 

ordered and that they “[f]ailed to articulate a cogent claim upon which relief 

can be granted that goes beyond a speculative or vague claim of a state 

conspiracy to make lawful independent contracting decisions that the 

[Employees] simply do not agree with.” (Agency Record Vol. I, p. 287). In 

addition, as to the Employees’ purported rights to “bump” into other DOC 

positions, the ALJ noted that the Employees made “no formal designation of 

evidence . . . and little use of such retention scores to show what alleged, 

specific job positions the [Employees] are claimed entitled to bump into.” 

(Agency Record Vol. I, pp. 282-83 n.1). The ALJ ordered the Employees to 

show good cause, within ten days, as to why their case should not be dismissed 

with prejudice.

[13] On March 13, 2012, the ALJ dismissed the Employees’ case for failing to tender 

good cause. However, the next day, the ALJ received the Employees’ 

submission of good cause, which had apparently been filed on March 8, 2012. 
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In their submission, the Employees proffered that the DOC had provided 

inadequate information to determine the accuracy of the proffered retention 

scores and whether any positions were available for the Employees to bump 

into. Because the Employees had timely filed their submission of good cause, 

on March 15, 2012, the ALJ vacated its order of dismissal. On April 3, 2012, 

the DOC responded to the Employees’ tender of good cause, claiming that the 

Employees should have addressed the need for additional information on the 

matter of the retention points during the discovery phase. According to the 

DOC, 

[p]ursuant to the file retention schedule set by the [Indiana] 

Department of Administration, personnel files are only kept in 

their entirety for one year. The State . . . no longer even uses the 

merit employment system. It would be an amazing, almost 

herculean burden on [the DOC] to have to reopen discovery and 

attempt to find information at this point. Every discovery request 

from [the Employees] received an appropriate response.

(Agency Record Vol. II, pp. 306-07). 

[14] On April 17, 2012, the ALJ conditionally lifted its show cause order. In 

addition, the ALJ noted that “[t]he limited discovery that [the Employees] seek 

is sworn answers from the [DOC] about the prior list of retention scores 

furnished in October[] 2009. This ALJ is skeptical that this discovery could not 

have been completed before, but [the Employees’] counsel says ‘not so’, and so 

in the interests of judicial patience and justice, limited discovery shall proceed” 

in the form of written interrogatories to the DOC “on the subject of the prior list 
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of retention scores (only).” (Agency Record Vol. II, pp. 309-10). On August 1, 

2012, the Employees requested a hearing with the ALJ because they believed 

the interrogatories they received from the DOC were insufficient and 

incomplete. The ALJ instructed the Employees that they could file a specific 

motion to compel, but it does not appear that the Employees ever did so. 

[15] On November 9, 2012, the DOC filed a motion to dismiss pursuant to Indiana 

Trial Rule 12(b)(6) and a motion for summary judgment pursuant to Indiana 

Trial Rule 56. The DOC argued that the Employees were properly laid-off

pursuant to statutory requirements with no violations of layoff rights. The 

DOC also argued that it did not conduct the layoffs as a means of retaliation. 

On May 3, 2013, the ALJ granted in part and denied in part the DOC’s motion 

for summary judgment (and found that the DOC’s motion to dismiss was either 

moot or otherwise consolidated with the summary judgment motion based on 

overlapping arguments). In particular, the ALJ determined that the Employees 

“were terminated when their positions at the IJCF were eliminated, not for the 

failure of [the Employees] to perform their jobs adequately. Similarly, [the 

DOC] has sufficiently proven the events in question were a structured layoff 

under the former Governor’s proper authority, and not for an improper 

motive.” (Agency Record Vol. II, p. 434). However, because the DOC failed 

to establish that there is no genuine issue of material fact as to whether the 

Employees were denied their statutory layoff rights, the ALJ denied summary 

judgment on this basis. Moreover, because of the perpetual delays, which the 

ALJ largely attributed to the Employees, and because the Employees had 
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requested several extensions to respond to the summary judgment motion but 

then failed to do so, the ALJ established that the Employees’ recovery would be 

limited should they be found to prevail on the merits.

[16] On June 3, 2013, the Employees filed a motion to correct error. Although 

neither the ALJ nor the DOC had received the Employees’ response to the 

DOC’s summary judgment motion, the Employees argued that such a response 

had been timely filed by deposit in the U.S. mail and should have been 

considered. On June 21, 2013, the DOC objected to the Employees’ motion to 

correct error. On July 22, 2013, the ALJ partially granted and partially denied 

the Employees’ motion to correct error. The ALJ vacated the portion of its 

decision limiting the Employees’ possible recovery as Employees demonstrated 

that they had attempted to timely respond to the summary judgment motion. 

In all other respects, the ALJ declined to modify its summary judgment order.

[17] On December 9, 2013, the ALJ conducted an evidentiary hearing with the sole 

issue being whether the Employees were denied their statutory layoff rights 

under Indiana Code section 4-15-2-32 of the State Personnel Act. During the 

hearing, the Employees testified to their belief that the retention points were not 

calculated prior to litigation such that they were deprived of their bumping and 

re-employment rights. Specifically, the Employees stated that they were told, in 

no uncertain terms, that their retention scores would not be calculated because 

they had no layoff rights. In turn, the DOC presented evidence from a 

supervisor at SPD, who testified that the Employees’ retention points were 

calculated prior to the layoff even though the scores were never provided 
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directly to the Employees per SPD policy. The SPD supervisor further added 

that only one of the Employees, Bird, qualified for bumping rights under the 

statute, and he declined such an offer.

[18] On March 10, 2014, the ALJ issued its Findings of Fact, Conclusions of Law 

and Non-Final Order, denying and dismissing the Employees’ merit 

complaints. The ALJ acknowledged that DOC “could have handled the 

lay[]off in a more delicate manner” but found “no statutory violation 

warranting damages.” (Appellants’ App. Vol. II, p. 61). Specifically, the ALJ 

determined that there was evidence that “the retention scores were calculated at 

or before the time of the layoff and used to check on bumping or retention”; 

there were no other positions into which the Employees could have moved by 

virtue of their retention scores; and the evidence revealed that a re-employment 

list or its “functional equivalent” was utilized. (Appellants’ App. Vol. II, pp. 

61, 63). On March 28, 2014, the Employees filed an objection to the ALJ’s 

Non-Final Order with the SEAC. On June 17, 2014, the SEAC conducted an 

oral argument, and on June 30, 2014, the SEAC issued its Final Order, 

adopting the determination of the ALJ in its entirety.

[19] On July 30, 2014, the Employees filed a Verified Petition for Judicial Review of 

the SEAC’s decision with the trial court. The Employees named the State, the 

DOC, and the SEAC as responding parties (i.e., collectively, the State).4 On 

 

4

 The SEAC unsuccessfully moved to be dismissed from the action.
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February 19, 2016, the trial court conducted a hearing.5

 On April 6, 2016, the 

trial court issued its Order on Petition for Judicial Review of the Final Order of 

the State Employees’ Appeals Commission, reversing the determination of the 

SEAC and instead finding in favor of the Employees. The trial court 

determined that the SEAC’s Final Order was “arbitrary, capricious, not in 

accordance with law, an abuse of discretion, and not supported by substantial 

evidence.” (Appellants’ App. Vol. II, p. 29). Ultimately, the trial court 

concluded, in relevant part, that the State

did not compute retention scores at the time of layoff to 

determine the order of the layoff, did not assess bumping rights 

either with Marion County or contiguous counties, and did not 

create or utilize a re-employment list, but instead—by its own 

admission—ordered the layoff based upon licensure 

considerations contrary to statute.

(Appellants’ App. Vol. II, p. 27). The trial court therefore reversed the SEAC’s 

Final Order and remanded for entry in favor of the Employees and for 

proceedings on the Employees’ damages.

[20] The State now appeals. Additional facts will be provided as necessary.

 

5

 Although a copy of the transcript of this hearing was received by the Clerk of the Indiana Appellate Courts 

on March 9, 2017, it was not filed due to non-conformance with the Indiana Rules of Appellate Procedure. 

Despite notice of the transcript’s defect, it does not appear that a corrected version was ever re-submitted.
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DISCUSSION AND DECISION

I. Standard of Review

[21] The Administrative Orders and Procedures Act governs judicial review of an 

agency action. I.C. § 4-21.5-5-1. When our court reviews the decision of an 

administrative agency, we are bound by the same standard of review as utilized 

by the trial court and “may not try the cause de novo or substitute [our] 

judgment for that of the agency.” I.C. § 4-21.5-5-11; Pierce v. State Dep’t of Corr., 

885 N.E.2d 77, 88 (Ind. Ct. App. 2008). Thus, we do not reweigh evidence or 

assess the credibility of witnesses, and we review the record in the light most 

favorable to the administrative proceedings. Ind. Educ. Emp’t Relations Bd. v. 

Nettle Creek Classroom Teachers Ass’n, 26 N.E.3d 47, 54 (Ind. Ct. App. 2015). In 

addition, “[j]udicial review of disputed issues of fact must be confined to the 

agency record.” I.C. § 4-21.5-5-11.

[22] Our court will reverse an administrative decision if the party

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.

I.C. § 4-21.5-5-14(d). “A decision is arbitrary and capricious when it is made 

without any consideration of the facts and lacks any basis that may lead a 

reasonable person to make the same decision made by the administrative 
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agency.” Pierce, 885 N.E.2d at 88. In general, the party seeking judicial relief 

“bears the burden of demonstrating that the agency’s action is invalid.” Id.; see 

I.C. § 4-21.5-5-14(a). Here, however, the State is appealing from the trial 

court’s decision that the SEAC’s Final Order is arbitrary and capricious; thus, 

the State seeks to establish the validity of the agency action. Accordingly, 

“[t]he relevant inquiry is whether there is substantial evidence of probative 

value to support the agency’s determination.” Family & Soc. Servs. Admin. v. 

Boise, 667 N.E.2d 753, 754 (Ind. Ct. App. 1996), trans. denied. “[S]ubstantial 

evidence is 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.” Ind. Family & Soc. 

Servs. Admin. v. Pickett, 903 N.E.2d 171, 177 (alteration in original) (internal 

quotation marks and citation omitted), clarified on reh’g, 908 N.E.2d 1191 (Ind. 

Ct. App. 2009).

II. State Personnel Act

[23] The State claims that the SEAC’s Final Order should be affirmed because there 

is substantial evidence to establish that the State complied with the State 

Personnel Act in the course of conducting the layoffs now at issue. The 

Employees alleged that the DOC violated each of the three subsections of 

Indiana Code section 4-15-2-32 by (1) failing to calculate and provide retention 

points in order to properly conduct the layoffs; (2) failing to utilize retention 

points to administer the Employees’ bumping rights; and (3) failing to properly 
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implement a re-employment list based on retention scores. We will address 

each point in turn.

[24] First, however, we note that to the extent that the resolution of this case hinges 

on an interpretation of the (now repealed) State Personnel Act, we must 

“determine whether the legislature has spoken clearly and unambiguously on 

the point in question.” Pierce, 885 N.E.2d at 88 (quoting St. Vincent Hosp. & 

Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 703-04 (Ind.2002)). An 

unambiguous statute must be given “its clear and plain meaning.” Id. An 

ambiguous statute, however, is susceptible to more than one interpretation, in 

which case, “we must try to ascertain the legislature’s intent and interpret the 

statute so as to effectuate that intent.” Id. Courts presume that “the legislature 

intended logical application of the language used in the statute, so as to avoid 

unjust or absurd results.” Id.

[25] We further note that “‘[a]n interpretation of a statute by an administrative 

agency charged with the duty of enforcing the statute is entitled to great weight, 

unless this interpretation would be inconsistent with the statute itself.’” Id. at 

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

“Deference to an agency’s interpretation of a statute becomes a consideration 

when a statute is ambiguous and susceptible of more than one reasonable 

interpretation.” Id. Thus, “[w]hen a court is faced with two reasonable 

interpretations of a statute, one of which is supplied by an administrative 

agency charged with enforcing the statute, the court should defer to the 

agency.” Id. If a court determines that an agency interpretation is reasonable, 
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it need not address the other party’s proposed interpretation in recognition of 

“the general policies of acknowledging the expertise of agencies empowered to 

interpret and enforce statutes and increasing public reliance on agency 

interpretations.” Id. (quoting Ind. Wholesale Wine & Liquor Co., Inc. v. State ex rel. 

Ind. Alcoholic Beverage Comm'n, 695 N.E.2d 99, 105 (Ind.1998)). That said, “[i]f 

an agency misconstrues a statute, there is no reasonable basis for the agency’s 

ultimate action and the trial court is required to reverse the agency’s action as 

being arbitrary and capricious.” Id.

A. Calculation of Retention Points

[26] The State contends that the trial court improperly reversed the SEAC/ALJ

because there is ample evidence that the Employees’ retention scores were 

calculated in accordance with the State Personnel Act. Former Indiana Code 

section 4-15-2-32(a) provides as follows:

(a) An appointing authority[6] may lay-off employees in the classified 

service whenever it is deemed necessary, due to shortage of work 

or funds, or the abolishment of a position, or other material 

change in duties or organization. For purposes of this section, 

offices and positions of employment in each county where the 

division of service operates is considered one autonomous unit 

and lay-off procedures will apply within the county affected by 

the lay-off. When a lay-off is necessary, the appointing authority 

will determine in which class or classes the lay-off or lay-offs will 

occur, the number of employees to be laid off within each 

 

6 “‘Appointing authority’ means the head of a department, division, board, commission, individual, or group 

of individuals who has the power by law or by lawfully delegated authority to make appointments to 

positions in the state service.” I.C. § 4-15-2-2.1 (repealed 2011).
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affected class, the county or counties where lay-offs are to occur 

and give written notice to the director[7] a reasonable time before 

the effective date of the lay-off. The director, in accordance with 

the rules, shall compute retention points to determine the order 

of lay-off within each county. The retention points will be 

computed as of the effective date of the lay-off and will reflect 

systematic consideration of seniority, service ratings, veterans’ 

preference status, and employment status. The director shall 

provide the appointing authority with a written notice containing 

the names and retention points of employees to be laid off in 

each county, and such orders relating to the lay-off as deemed 

necessary to secure compliance with this section.

[27] In this case, there is no dispute that, prior to litigation, the Employees never 

received copies of their retention scores. During the administrative hearing, the 

Employees testified that, at the time they were notified of the impending layoff, 

the DOC and SPD representatives made it clear that retention scores would not 

be figured or provided. When the retention scores were eventually provided

during litigation, the Employees discovered that seven Marion County DOC 

employees with the same classification (i.e., institutional teachers) had survived 

the layoff. Because several of the Employees had higher retention scores than 

these institutional teachers who were not laid off, the Employees maintained 

that the layoffs were not conducted in accordance with seniority. The 

Employees also raised concerns that the DOC did not explain what factors it 

considered in calculating the scores. Finally, the Employees challenged the 

 

7 “‘Director’ means the state personnel director . . . .” I.C. § 4-15-2-2.7 (repealed 2011).
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timeliness and validity of the retention scores due to purported errors in the 

chart, such as the inclusion of a few retired and terminated DOC employees

and because the chart was dated several years after the layoff.

[28] Contrary to the Employees’ contentions, the ALJ made the following specific 

findings and conclusions relevant to the calculation of retention scores:

15. Joyce Crull [(Crull)], an employee of SPD, testified 

regarding Exhibit A [(i.e., the retention score chart)]. . . . Crull 

did not personally calculate the retention scores/points. 

However, . . . Crull directly supervised the individual (Nancy 

Shockley [(Shockley)], a former state employee who did not 

testify) who calculated the retention points and compiled Exhibit 

A. . . . Crull had personal knowledge that the task was done 

either before or at the time of the layoff. When pressed on cross 

exam, her only waffle was exclaiming that the scores might have 

actually been calculated in 2009 [sic], prior to the layoff. . . . Crull 

explained that the date on the lower corner [(i.e., 8/30/2012)] is 

the date Exhibit A was first printed, and not the date that the 

retention points were first calculated.

16. . . . Crull further explained that employees would never be

told where they sit, per retention points, on a list prior to the 

effective date of the layoff, which was consistent with DOC’s 

actions.

* * * *

23. . . . Part of the trial effort by [the Employees] was to imply 

that retention scores were not calculated in 2009, or that Exhibit 

A was made up after the fact. [The Employees] also claimed 

there was inaccurate information reported in Exhibit A. 

However, the alleged inaccuracies were either not there, not 

material or de minimis.
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24. There were [institutional teachers] listed on Exhibits A-B

who no longer worked at IJCF exactly when the layoffs occurred 

because they had left state employment shortly before the layoff. 

While this is not ideal, it supports the [DOC’s] contention and 

credibility of . . . Crull, . . . that the scores were calculated before 

the litigation in 2009. Also, post layoff dates contained at the 

bottom of the pages were mentioned. However, no witness was 

able to provide any specific evidence that the retention scores, as 

reported in Exhibit A-B, were not accurate.

25. [Weeks] further pointed out that one of the columns

appeared to be transposed. But, transposition aside, he admitted 

on cross exam that his data was correct. No harm is shown by 

the same.

26. [Mills] asserted she should have been one notch up the list

on Exhibit A, where [Zelda Lewis (Lewis), a vocational teacher 

at Indiana Women’s Prison who was not laid off,] was. Yet, the 

list shows [Lewis] started earlier than [Mills], making the 

opposite seem true. [Mills] thought maybe [Lewis’] start date 

was wrong (and closer to [Mills]), but this was speculation. . . .

* * * *

28. The scores were calculated to the hundredth place, yet [the

Employees] questioned the accuracy of the scores. The criticism 

came without personal knowledge of how retention scores are 

calculated. Attacking the accuracy of the scores was based on 

mere speculation. [While the [S]tate was to use certain factors in 

calculating the scores, the [S]tate was not required to break down 

the scores into subparts or explain the calculation to [the 

Employees]. In other words, the [Employees] wondering about 

the calculation method offers nothing of evidentiary value.] 

29. The chart has inherent credibility that outweighs the

[Employees’] speculation, as the information generally lines up 

with the employment figures, at the time of the layoff, for those 
Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017 Page 21 of 34

listed, (e.g., hire dates, ranking, job title, job unit, annual pay 

rate). Again, the scores themselves appear mathematical and are 

out to the hundredths place. Exhibits A and B do not contain 

material problems.

* * * *

31. John Nally [(Nally)], a central office administrator for 

DOC, also supported . . . Crull’s testimony. His memory of all 

the events had faded, but he did specifically recall a request from 

SPD asking him to compile all of the [Employees’] credentials at 

some point prior to the layoff. He believed the request was in 

connection to retention score calculation activities, as . . . Crull 

said.

* * * *

11. [Indiana Code section 4-15-2-32(a)] requires the SPD to 

calculate retention points for every laid-off employee at the time 

of layoff. There is conflicting evidence regarding whether the 

retention points were calculated prior to the layoff or at the time 

of layoff. Either way, DOC presented evidence that the retention 

scores were calculated at or before the time of the layoff and used 

to check on bumping or retention. However, there is no question 

that copies of these retention scores were not given to the 

[Employees] until litigation. Counsel for DOC maintains that 

DOC or SPD did not provide the score copies to [the Employees] 

in July, 2009 because of its belief at the time that none of the 

[Employees] had bumping rights.

12. [The Employees] requested their retention points at each 

of the meetings on July 7, 10, and 17, 2009. DOC did not 

provide copies of the retention scores. DOC was not obligated to 

provide copies of retention scores at this point, as it was prior to 

the layoffs. However, once the layoff happened, DOC should 

have furnished the scores that day, but did so repeatedly shortly 
Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017 Page 22 of 34

after in litigation.[8]

13. The evidence shows [DOC] at least went through the 

deliberative process of computing retention scores and did use 

and provide the retention scores in 2009. Any failure to forward 

copies of the retention scores to [the Employees] in July 2009 

was not material, de minim[i]s or harmless.

14. Based on the unopposed testimony, it is impossible that . . 

. DOC or SPD failed to compute or use the retention scores 

because [Bird] was offered, in writing, a position in a lower class 

shortly after the layoffs in 2009. The employment offer was 

based on his retention points and having achieved permanent 

status in a lower class. If a retention score did not exist, SPD 

would not have offered the position or used the term “bump” in 

its correspondence.

(Appellants’ App. Vol. II, pp. 55, 56, 57 & n.13, 61) (citations and footnotes 

omitted).

[29] We find that the evidence in the record supports the ALJ’s findings, which, in 

turn, support the ALJ’s determination (as adopted by the SEAC) that the DOC 

did not violate the State Personnel Act with respect to calculating retention 

scores. Although there was conflicting evidence regarding whether retention 

scores were calculated prior to the layoff or only after the commencement of 

litigation, it was within the discretion of the ALJ to weigh that evidence and 

 

8 The ALJ’s conclusion that the DOC should have provided the scores to the Employees upon layoff is based 

on its assessment of Indiana Code section 4-15-2-30 (repealed 2011) and Indiana Code section 5-14-3-4(b)(8),

when read in conjunction with the statute at hand. The ALJ noted that these other provisions “provid[e] 

access to employee records.” (Appellants’ App. Vol. II, p. 61).
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accord credibility to Crull’s testimony that the retention scores were positively

calculated prior to the layoff and were current per SPD standards as of the 

effective date of the layoff. Specifically, Crull testified that retention scores are 

considered current so long as they are calculated no more than six months 

preceding the layoff. She further stated that upon the DOC’s notice of layoff, 

the SPD would have required “time in order to review the whole document of 

the [E]mployees’ records” and then would have “draw[n] a list up of 

individuals in the classification throughout the county under DOC.” (Agency 

Tr. pp. 47, 49-50).9

[30] Moreover, based on a plain reading of the statute, neither the DOC nor the 

SPD was required to provide the retention scores to the Employees or to offer a 

breakdown of how such scores were calculated. Rather, the State Personnel 

Act simply requires the SPD director to figure the retention scores using the 

statutory criteria and then provide a list to, in this case, the head of the DOC 

containing only the names and retention points of the employees in the 

designated classification. While the record does not include evidence of the 

specific data utilized, there is substantial evidence—that is, more than 

 

9 To support its claim, the State primarily relies on the interrogatory responses of Shockley, who calculated 

the retention scores and explained the date she did so and what factors were considered. Although 

Shockley’s interrogatory was included with the agency record, it was not admitted as evidence during the 

hearing and the ALJ did not take official notice of the facts stated therein. See I.C. § 4-21.5-3-26. 

Furthermore, Shockley did not testify during the hearing, and nothing in the ALJ’s findings and conclusions 

indicates that it relied upon her interrogatory to support its determination. See I.C. § 4-21.5-3-27(d) 

(“Findings must be based exclusively upon the evidence of record in the proceeding and on matters officially 

noticed in that proceeding. . . .”). Thus, we do not consider Shockley’s interrogatory as evidence.
Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017 Page 24 of 34

speculation but less than a preponderance—that the State complied with the 

statutory criteria for factoring the retention scores. Pickett, 903 N.E.2d at 177. 

Crull testified that the retention scores were calculated using “the entire 

working record, the continuous record of the [Employees,]” and the retention 

chart included information pertinent to calculating scores, such as the 

Employees’ hire dates, job titles, department information, and salaries. 

(Agency Tr. p. 45). Also, Nally testified that, prior to the layoff, he provided 

information on the Employees’ credentials to the SPD for use in calculating 

retention scores.

[31] In reversing the SEAC/ALJ, the trial court determined that retention scores 

were not calculated at the time of the layoff based on the testimony of the 

Employees and the October 13, 2009 Scheduling Order, which directed the 

DOC to “calculate retention scores for [the Employees].” (Agency Record Vol. 

I, p. 63). We first note that this Scheduling Order does not establish that such 

scores had not been previously calculated inasmuch as it ordered the DOC to 

provide copies of those scores to the Employees. Furthermore, the fact that the 

trial court discredited the ALJ’s findings on the basis of this Scheduling Order

and conflicting testimony of the Employees amounts to improper reweighing of 

the evidence.

[32] Finally, we address the Employees’ assertion that the DOC violated the State 

Personnel Act because several institutional teachers remained employed at the 

central administration office and Indiana Women’s prison, despite having 

lower retention scores than some of the Employees. While the ALJ’s findings 
Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017 Page 25 of 34

on this issue primarily relate to whether the Employees had the right to “bump” 

these other institutional teachers out of their jobs, which we discuss in an 

analysis of Indiana Code section 4-15-2-32(b) below, we must also consider this 

argument in the context of whether the DOC violated Indiana Code section 4-

15-2-32(a) by not relying on the retention scores to determine the proper order 

of layoff of institutional teachers within Marion County.

[33] At the time the Employees were laid off, seven employees classified as 

institutional teachers remained employed by the DOC in Marion County: three 

vocational teachers at the Indiana Women’s Prison and four administrators in

DOC’s central office. However, there is evidence indicating that, at some 

point, the vocational teachers were also eliminated in favor of using private 

contractors. During the hearing, Nally testified that the DOC “wanted people 

in Central Office with District Administrator’s Licenses,” which is why the four 

individuals with administrative licenses were retained notwithstanding whether 

their retention scores were higher than the laid-off Employees. (Agency Tr. p. 

294). Thus, the Employees argue that the layoffs ran afoul of the State 

Personnel Act because they were done in accordance with licensing needs 

rather than seniority.

[34] The State Personnel Act authorizes the head of a department to conduct layoffs 

whenever “deemed necessary, due to shortage of work or funds, or the 

abolishment of a position, or other material change in duties or organization.” 

I.C. § 4-15-2-32(a) (repealed 2011). Here, the institutional teaching positions 

were abolished at the IJCF. While the administrative employees at issue were 
Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017 Page 26 of 34

technically also classified as institutional teachers, they did not function in such 

a capacity and, in fact, held special licenses to fulfill other duties for the DOC in 

the central office. Although the State Personnel Act does state that layoffs 

within a certain class should be conducted in order of seniority, we find that it 

would defy logical reasoning to construe the State Personnel Act as requiring an 

agency to lay off licensed/qualified employees only to move more senior 

employees into positions for which they are patently unqualified. See Citizens 

Action Coal. of Ind., Inc. v. N. Ind. Pub. Serv. Co., 796 N.E.2d 1264, 1269 (Ind. Ct. 

App. 2003) (“[A] statute is to be construed so as to not bring about an absurd 

result.”), trans. denied. Accordingly, we agree with the SEAC/ALJ and find 

that the State did not violate Indiana Code section 4-15-2-32(a) of the State 

Personnel Act.

B. Bumping Rights

[35] The State next contends that the trial court erroneously reversed the 

SEAC/ALJ because the evidence demonstrates that it complied with Indiana 

Code section 4-15-2-32(b) (repealed 2011), which provides as follows:

(b) An employee in the classified service who has been notified of 

pending lay-off and who has permanent status in a lower class 

has the right, provided they have more retention points, to 

displace within the same affected county, the employee with the 

least retention points in that lower class. Any employee in the 

classified service who has permanent status in a lower class and 

is displaced by another employee has the right, provided they 

have more retention points, to displace within the same affected 

county the employee with the least retention points in that lower 

class. This procedure shall continue until the employee with the 
Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017 Page 27 of 34

least retention points in the lowest class, in the same affected 

county, of the same appointing authority has been reached and if 

necessary, laid off. Should a layoff result in the closing of all 

offices in a county, any employee in the classified service who 

has been notified of pending lay-off and who has permanent 

status in the class from which they are laid off may, provided 

they have more retention points, displace within the division of 

service in any contiguous county the employee with the least 

retention points in that class.

[36] Contrary to the State, the Employees assert that the DOC failed to assess their 

bumping rights within Marion County. We disagree. Based on the plain 

language of this statute, in order to qualify for bumping rights, an employee 

must have permanent status in a lower class and must have higher retention 

points than an individual employed in that lower position within the same 

county. Thus, the statute makes it clear that the Employees had no right to 

laterally displace other institutional teachers within the county even if they had 

a higher retention score. Furthermore, as the ALJ found based on the retention 

score chart, only Bird had permanent status in lower classes—as both a 

correctional sergeant and a correctional officer. Shortly after the layoff, Bird 

admitted that he received an offer to “bump” into a correctional sergeant or 

correctional officer position, but he declined. (Agency Tr. p. 155). Mills and 

Matthews both testified to their belief that they had permanent status as, 

respectively, a librarian and a teacher’s assistant for which they should have 

received bumping rights. However, this is contradicted by the DOC’s retention 

chart, and the ALJ was charged with weighing the evidence.
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[37] Additionally, the Employees insist that they should have been able to bump 

into other institutional teaching positions within the counties contiguous to 

Marion County based on the fact that all DOC institutional teaching jobs were 

eliminated within Marion County. The statute provides that in the event that 

“all offices in a county” are closed due to layoffs, institutional teachers with 

permanent status as institutional teachers could displace other institutional 

teachers who had lower retention scores within the contiguous counties. I.C. § 

4-15-2-32(b) (repealed 2011). The ALJ specifically found that this provision 

“has no application because DOC’s Marion County office was not closed down 

entirely.” (Appellants’ App. Vol. II, p. 62). In particular, the evidence revealed

that the DOC’s central office, located in Marion County, remained operational. 

Likewise, although it was staffed with private contractors instead of 

institutional teachers, the Indiana Women’s Prison, also located in Marion 

County, did not shut down. Therefore, like the SEAC/ALJ, we find that there 

is substantial evidence that the State did not violate Indiana Code section 4-15-

2-32(b) of the State Personnel Act.

C. Re-Employment List

[38] Lastly, the State asserts that the trial court erroneously reversed the SEAC/ALJ 

because the evidence establishes that, in conducting the layoffs, the State

adhered to Indiana Code section 4-15-2-32(c) (repealed 2011), which provides:

(c) Employees who have been reduced or laid off will be placed on 

appropriate re-employment lists in accordance with rules 

established by the director. Those employees with the highest 

retention points in each affected class will be placed at the top of 
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the list followed by employees ranked in descending order. An 

employee who is laid off will retain re-employment rights for a 

period of one (1) year from the lay-off date. During this one (1) 

year period, the appointing authority, for the division of service 

affected, shall not hire nor promote anyone into a class affected 

by the lay-off until all laid off employees on the re-employment 

list for that class have been reinstated or decline the position 

when it is offered. Employees who fail to respond within five (5) 

days, to a written offer sent to their last known address, will be 

deemed to have declined. Even though a lay-off applies only to 

affected counties, re-employment rights extend to all counties, 

and at the request of the laid off or reduced employee, their name 

will be placed on the appropriate re-employment list for any or 

all counties.

The Employees have insisted that no re-employment list was ever created or 

utilized. In fact, no such list was ever produced during the course of litigation. 

[39] The ALJ concluded, and the SEAC agreed, that there was substantial evidence 

that the Employees “were placed on re-employment lists or the functional 

equivalent.” (Appellants’ App. Vol. II, p. 63). In particular, the ALJ found:

33. The existence of a re-employment list, or [its] functional

equivalent, was further bolstered by evidence of automatic 

employment applications with the State. Several [Employees] 

described receiving correspondence thanking them for applying 

to jobs even though they never personally applied. This evidence 

suggests that a re-employment list was in existence and utilized 

for automatic application to qualified positions, especially 

because this happened to more than one [of the Employees].

34. [Weeks] stated he received a letter from SPD in early 2010

that listed a position in Fort Wayne, IN that was similar to his 

old job. While the letter did not mention bumping rights or 
Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017 Page 30 of 34

retention scoring, [Employee] Weeks testified that it mentioned 

special consideration.

35. . . . [Mellott], in fact was rehired to a DOC facility in 

Northeast Indiana. However, [Employee] Mellott chose to quit 

after a number of weeks because that facility was also going 

through an active layoff. This episode shows the breadth of the 

layoff, the lack of open DOC [institutional teacher] positions 

within one year, and that DOC was considering the [Employees] 

not as fired but as laid off on a list.

(Appellants’ App. Vol. II, p. 57) (citation omitted). Unlike the trial court, 

which determined that there was “no evidence at all establishing the existence 

of . . . re-employment lists,” we agree with the SEAC/ALJ that there is

substantial evidence that a re-employment list was created and utilized based on 

the fact that employment offers were made to certain Employees within a short 

time after the layoff. (Appellants’ App. Vol. II, p. 25).

[40] Nevertheless, we find that the evidence establishes that the State failed to 

comply with the specific procedure for implementing a re-employment list. The 

statute makes it abundantly clear that the Employees “with the highest 

retention points” should have been “placed at the top” of the re-employment 

list for institutional teachers. I.C. § 4-15-2-32(c) (repealed 2011). In this case, 

two of the Employees, Weeks and Mellott, were offered re-employment as 

institutional teachers shortly after the layoff in Fort Wayne, which Mellott 

ultimately accepted. However, according to the retention score chart, of the 

nine Employees who filed merit complaints, Weeks was ranked sixth and 

Mellott was ranked ninth in terms of retention points. Gillenwater, Mills, 
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Miller, and Bird all informed the SPD that they would be willing to accept reemployment as an institutional teacher in any Indiana county and all had 

higher retention scores than both Weeks and Mellott. Yet, none of these four

were offered the institutional teacher position in Fort Wayne (or anywhere else 

for that matter) prior to Weeks and Mellott being afforded the opportunity.

10 

There is no evidence that there were special certification or licensing 

requirements for the Fort Wayne position; rather, it appears that all of the 

Employees were qualified for any such institutional teaching position. 

Accordingly, the fact that the State did not offer re-employment opportunities in 

accordance with seniority is a violation of the State Personnel Act. We 

therefore agree with the trial court that the SEAC’s Final Order is not in 

accordance with the law on this issue. Thus, the matter should be remanded to 

the SEAC/ALJ for a determination of whether some or all of the Employees 

are entitled to damages based on the State’s failure to comply with former 

Indiana Code section 4-15-2-32(c) in light of the fact that so few re-employment 

opportunities were available in the year following the layoff.

CONCLUSION

[41] Based on the foregoing, we conclude that SEAC/ALJ properly determined that 

the State calculated the Employees’ retention scores and adhered to statutory 

layoff rights in accordance with Indiana Code section 4-15-2-32(a)-(b) (repealed 

10 We note that Rumple had the second highest retention score of the nine Employees; however, she 

indicated that she would only accept employment in the counties surrounding Marion County; thus, she 

would not have been offered the Fort Wayne position regardless.
Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017 Page 32 of 34

2011). However, we also conclude that the State failed to comply with the 

State Personnel Act’s requirement that laid-off employees with the highest 

retention scores be afforded the first opportunity for re-employment. Thus, the 

trial court correctly reversed the Final Order of the SEAC with respect to 

Indiana Code section 4-15-2-32(c) (repealed 2011).

[42] Affirmed in part, reversed in part, and remanded for further agency 

proceedings. 

[43] Altice, J. concurs

[44] Crone, J. concurs in part and dissents in part with separate opinion
Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017 Page 33 of 34

IN THE

COURT OF APPEALS OF INDIANA

State of Indiana, Indiana 

Department of Correction, and 

Indiana State Employees’ 

Appeals Commission,

Appellants-Respondents,

v. 

Debra Mills, et al.,

Appellees-Petitioners

Court of Appeals Case No.

49A02-1605-PL-998 

Crone, Judge, concurring in part and dissenting in part.

[45] I respectfully disagree with the majority’s conclusion that the State did not 

violate the State Personnel Act by retaining four employees classified as 

institutional teachers who held administrative licenses but had lower retention 

scores than some of the Employees.11 Indiana Code Section 4-15-2-32(a) 

specifically states that the order of lay-off for each class within a county is 

11 The majority’s suggestion that the Employees were “patently unqualified” for those positions is an insult to 

them and ignores their years of loyal service.
Court of Appeals of Indiana | Opinion 49A02-1605-PL-998 | April 26, 2017 Page 34 of 34

determined by retention points, not by licensing considerations. We may not 

read into a statute that which is not the expressed intent of the legislature. In re 

Guardianship of Stant, 50 N.E.3d 149, 152 (Ind. Ct. App. 2016), trans. denied. In 

all other respects, I concur.