Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 1 of 27

ATTORNEY FOR APPELLANT

Adam Lenkowsky

Roberts Litigation Group

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Monika Prekopa Talbot

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Timothy J. Brown,

Appellant-Petitioner,

v.

Indiana Department of 

Environmental Management,

Appellee-Respondent,

May 29, 2020

Court of Appeals Case No.

19A-MI-2051

Appeal from the Marion Superior 

Court

The Honorable Tim Oakes, Judge

Trial Court Cause No.

49D02-1810-MI-41395

Robb, Judge.
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 2 of 27

Case Summary and Issues

[1] Timothy Brown appealed his termination from the Indiana Department of 

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

Commission (“SEAC”), alleging that he was terminated in violation of

Indiana’s Whistleblower Law based on three emails he sent to his supervisor 

concerning IDEM’s alleged misuse of public resources and violation of law. 

IDEM moved to dismiss Brown’s complaint, which the SEAC granted. Brown 

filed his first petition for judicial review and the trial court reversed the SEAC’s 

decision and remanded for further proceedings.

[2] On remand, IDEM filed a motion for summary judgment. The SEAC granted 

IDEM’s motion and found that Brown’s emails constituted a “report” under the 

whistleblower statue, but he failed to show that the reports contained any 

violation of law or how IDEM was allegedly misusing funds. The SEAC also 

concluded there was no causal link between Brown’s termination and his 

whistleblower claim. Brown filed a second petition for judicial review, which 

the trial court denied. Brown appeals, raising six issues which we consolidate 

into two restated issues: (1) whether the trial court erred in determining that the 

SEAC’s decision that Brown was not a whistleblower was not arbitrary,

capricious, or an abuse of discretion; and (2) whether the trial court erred in 

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

Concluding the trial court did not err in either determination, we affirm. 

Facts and Procedural History 
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 3 of 27

[3] Brown was employed by IDEM for approximately twenty-one years before he 

was terminated on May 6, 2016. At the time of his termination, he was an 

Environmental Chemist II in the Air Toxics Section and was considered an 

unclassified, at-will employee. His May 6 termination letter stated, in pertinent 

part:

Your job responsibility during the month of April, 2016 included 

management of the primary Gas Chromatograph/Mass 

Spectrometer (GCMS) system. It was confirmed that you had 

run samples without verifying a valid calibration, one of three 

quality control standards required prior to the daily analysis of 

field samples. On at least two occasions, you analyzed samples 

and reported invalid data as valid. Your failure to perform the 

basic task of checking the calibration does not meet performance 

standards and reporting false data is considered a dishonest act. 

Both actions are unacceptable, do not meet agency standards, 

and are the reason[s] for this disciplinary action.

You are hereby notified that effective May 6, 2016, your 

employment is terminated in accordance with IC 4-15-2.2-24 

which provides “An employee in the unclassified service is an 

employee at will and serves at the pleasure of the employee’s 

appointing authority . . . and may be dismissed, demoted, 

disciplined or transferred for any reason that does not contravene 

public policy.”

Appendix of Appellant, Volume II at 42.
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 4 of 27

[4] Brown appealed his termination to the SEAC on August 3, 2016, alleging six 

claims, including a whistleblower retaliation claim.1 See id. at 49-64. 

Specifically, Brown alleged that he was terminated for being a whistleblower in 

violation of Indiana Code section 4-15-10-4, Indiana’s State Employee 

Whistleblower Law (“WBL”)2for emailing his supervisor and inadvertently 

revealing “what could be viewed as federal grant fraud[.]” Id. at 59. Brown 

relied on three April 2016 emails as his “report” but did not attach them to his 

complaint or provide them to the SEAC.

[5] On October 7, 2016, IDEM filed a motion to dismiss and supporting brief, in 

which it argued that SEAC lacked subject matter jurisdiction to hear Brown’s 

complaint and Brown failed to state a claim upon which relief could be granted. 

See id. at 78. Specifically, IDEM alleged that Brown failed to “report” 

violations as required by statute and failed to establish “that a public policy 

exception [pursuant to Indiana Code section 4-15-2.2-42(f)3] to the employment 

at will doctrine was the reason for his discharge.” Id. And on December 16, 

2016, the SEAC granted IDEM’s motion, finding, in part, that Brown failed to 

offer any evidence to show his alleged protected activity was related to his 

1

In addition, Brown alleged abuse of process, supervisor breach of fiduciary duty, conspiracy, false 

accusation and estoppel, and breach of contract. Brown later voluntarily dropped these claims leaving only 

his whistleblower retaliation claim for the SEAC to analyze. See id. at 116 n.2. 

2 This statute is contained in the State Employees’ Bill of Rights. Ind. Code ch. 4-15-10.

3 This section states: “An unclassified employee must establish that the commission 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.”
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 5 of 27

termination and that he was terminated for reporting invalid data. See id. at 

121, ¶¶ 16-17. The SEAC concluded no other public policy exception had been 

raised and therefore, the SEAC lacked subject matter jurisdiction to hear 

Brown’s complaint. Id. at ¶ 18.

[6] Brown subsequently sought judicial review of the SEAC’s order by filing his

Verified Petition for Judicial Review on January 6, 2017. In his petition, 

Brown alleged that the SEAC “prematurely concluded that his allegations 

demonstrated that he had not ‘reported’ anything because his communication 

was ‘inadvertent’” and that the SEAC erred in concluding he had not

demonstrated a causal connection between his termination and alleged 

whistleblowing activity. Id. at 131, ¶¶ 22, 25.

[7] On November 21, 2017, the trial court issued an order granting Brown’s

petition and remanding the matter to the SEAC for further proceedings. In its 

order, the trial court concluded that Brown had sufficiently stated a claim for 

relief. The trial court concluded that the SEAC clearly erred in determining the 

reason for Brown’s discharge “when this could not be decided without reference 

to matters outside of the pleadings” and that the SEAC’s order dismissing 

Brown’s complaint without evidence of Brown’s emails was arbitrary and 

capricious, in excess of authority, without observance of legal procedure, and 

otherwise unsupported by substantial evidence. Id. at 140, ¶¶ 21, 25. The 

matter was remanded to the SEAC.
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 6 of 27

[8] On June 18, 2018, IDEM filed a motion for summary judgment and designated 

certain evidence, including Brown’s termination letter and Brown’s three April 

2016 emails he sent to his supervisor, Stacey Pfeffer: 

[April 26, 2016 E-mail]

Please recall the Friday before you left for your staycation and 

the controversy that afternoon in the lab when I was trying to 

explain to you that I strongly suspected Russell [one of Brown’s 

co-workers] of deliberately engineering the backlog in the canister 

analysis? Below is the factual basis of my allegations in writing. . 

. .

On Wednesday March 30, 2016, we received complaint samples 

from OAQ. On Thursday, March 31, 2016, Russell Bowman ran 

two calibration checks on the GCMSii. The first one failed, the 

second one passed[.] No more calibration checks were run after 

those two allegedly failed, and therefore no can[ister] samples 

either. Not only did the second calibration check and BFB tune 

pass according to the [procedures] that Russell himself wrote, 

Russell did not bother to load up the sampling tree with 

backlogged sample canisters that needed to be analyzed, 

including the two complaint samples. Russell also left a backlog 

of samples to be logged in for the next staffmember who was 

taking over the workstation[.] When Russell was asked why 

Russell did not run a batch of canisters and do the complaint 

samples, Russell made the claim that the calibration check 

performed on March 31 did not pass, when in fact the calibration 

check had indeed passed as well as the BFB. In addition, the 

staffmember taking over Russell’s work station for 2nd quarter 

had never performed a complaint sample on GCMS and was 

unaware that an official memorandum had to be written for the 

lab reports. Russell did not apprise the staffmember taking over 

Russell’s position of this part of the procedure. Nor did Russell 

apprise the acting branch chief. Another result of Russell’s 
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 7 of 27

actions, or lack thereof, was that the complaint analysis was 

unnecessarily delayed by at least a week . . . and the writing of 

the memorandum by at least 4 weeks. The willful negligence and 

deception demonstrated by Russell antagonized and provoked 

the anger of the staffmember taking over Russell’s work station, 

which created unnecessary controversy and undermined group 

trust and comradery.

* * *

[April 28, 2016 E-mail titled “More Russell antics . . .”]

Russell began experiencing contamination with the TNMOC 

instrument the last week of first quarter. Certification canisters 

were not coming out clean enough and a backlog was beginning 

to develop. When this kind of contamination . . . occurs, an 

experienced air chemist will first try the simplest and most 

effective remedy, and that is applying a heat gun to the injection 

lines. Russell did not try this at all but instead, tried the most 

elaborate and invasive remedies first[.] These troubleshooting 

efforts did not work and the result was the same – a 

contaminated system. The next ECII to take over Russell’s 

workstation during 2nd quarter assumed Russell had tried the 

obvious heat gun technique first. At this time, the ECII put to 

task a trainee to do TNMOC duty, and although a few canisters 

did pass certification, the luck quickly ran out and troublesome 

contamination was still evident. At the end of the April 25th

work day, the ECII trainer realized Russel[l] had not used the 

heat gun, and so instructed the trainee to try the heat gun. A few 

days passed, and the ECII trainer asked the trainee if he had tried 

the heat gun method. The trainee response . . . was “Russell said 

the heat gun does not work”. Not only that but in an 

uncharacteristic move, Russell feverishly volunteered to “help” 

the trainee dismantle the six port valve and sonicate the parts . . . 

again! It is said the definition of insanity is doing something over 

and over again that clearly does not work. It definitely raises a 
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 8 of 27

question about Russell’s masters degree in chemistry and 10 

years of Air Toxics experience. Anyway, I speculate that 

Russell’s motivation arose from a combination of Russell’s 

inclination to a) satisfy his OCD like urges, b) defy his fellow 

chemists, and c) deliberately mislead the trainee down a path of 

inevitable chronic backlog. Not only was canister backlog 

growing and growing, it also became apparent that the trainee 

was getting demoralized and feeling stressed. Yet the trainee was 

still confident in Russell’s guidance to the point of questioning 

the original trainer’s advice. But anyway Russell reassembled the 

six port valve apparatus and the results were of course the same. 

Still contaminated. . . .

[T]his is not the only time I have caught Russell giving . . . 

questionable advice, if not deliberate misinformation. It is 

distracting, divisive, and it wastes time. . . . A friend of mine 

worked at Chevy for 40 years and told me stories of the 

occasional workman who would rig his machine to break all the 

time. But these workmen were motivated by having extended 

break time while waiting for the repairman.

* * *

[April 29, 2016 E-mail]

I might also suggest keeping Russell out of the Toxics area and 

just have him stay in his cubicle. [Another co-worker] and I can 

handle it.

Id. at 194, 200, 202.

[9] IDEM argued Brown did not “report” a violation of law and his claim of 

“workplace sabotage” was not a report of the existence of misuse of public 
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 9 of 27

resources for which IDEM retaliated against him. Id. at 177-84. And therefore, 

IDEM argued, Brown did not report a violation of law or misuse of public 

resources to his supervisor and failed to state a claim for wrongful termination. 

On September 18, the SEAC issued its order granting IDEM’s motion for 

summary judgment and finding, in relevant part:

23. The first email, dated April 26, 2016, is the email [Brown] 

relied upon above for his contention that [IDEM] violated federal 

law. Having already found in favor of [IDEM] on this issue, the 

[administrative law judge (“ALJ”)] also finds that nothing in the 

email would lead Pfeffer or anyone else to believe that a misuse 

of public resources was occurring. Instead, the email’s tone is 

simply [Brown] complaining to Pfeffer that Bowman was not 

doing his job correctly.

24. The second email, dated April 28, 2016 was entitled, 

“More Russell (Bowman) antics”. In it, [Brown] again 

complains about Bowman not doing his job correctly with regard 

to using a heat gun to solve a problem with contamination of 

some of the samples. After listing his complaints, [Brown] 

concludes by saying that Bowman’s antics were to satisfy 

Bowman’s OCD urges, defy his fellow chemists and deliberately 

mislead a trainee down a path of inevitable chronic backlog. 

Again, the ALJ finds that nothing in the above email would lead 

Pfeffer to believe that [IDEM] was committing grant fraud, or 

was otherwise misusing public resources. Therefore, the ALJ 

finds [Brown’s] reliance upon this email unconvincing.

25. [Brown’s] final email to Pfeffer was dated April 29, 201[6] 

and contained only one line-“I might also suggest keeping 
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 10 of 27

[Bowman] out of the Toxics area and just have him stay in his 

cubicle. [another employee] and I can handle it[.4]”

26. There can be no doubt that [Brown] makes no reference of 

any kind to misuse of funds in the above email. It is simply a 

request to Pfeffer to keep Bowman out of the area in which 

[Brown] was working, presumably because of Bowman’s actions 

noted in [Brown’s] earlier two (2) emails. The ALJ finds that 

[Brown] cannot rely on this email to show that [IDEM] misused 

public funds.

27. While [Brown] correctly made a report under the [WBL], 

he failed to show how such report contained a violation of a 

federal, state or local law, or how [IDEM] was allegedly 

misusing public funds such that [Brown] should not have been 

terminated.

28. [Brown] was terminated because his actions of running 

samples without verifying the valid calibration and on at least 

two occasions analyzing samples and reporting invalid data as 

valid did not meet [IDEM’s] standards, not because he 

inadvertently emailed his supervisor about possible federal grant 

fraud perpetuated by [IDEM]. Therefore, the ALJ finds that 

there is no causal link between his termination and his attempt at 

making a whistleblower claim. 

29. No other public policy exception has been raised by 

[Brown], and therefore, the ALJ concludes that SEAC lacks 

subject matter jurisdiction to hear this Complaint. Thus, 

[IDEM’s] Motion [for Summary Judgment] must be granted.

4 The alterations in this finding appeared in the original order.
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 11 of 27

Id., Vol. V at 244-45 (record citations omitted). 

[10] Brown subsequently filed another petition for judicial review arguing the 

SEAC’s order granting summary judgment in favor of IDEM was arbitrary and 

capricious, an abuse of discretion, and unsupported by substantial evidence. 

Following a hearing on August 19, 2019, the trial court issued an order denying 

Brown’s verified petition for judicial review concluding, in pertinent part:

[Conclusions of Law]

12. [Brown] contends that the law-of-the-case doctrine 

forecloses many of [IDEM’s] arguments, as a result of [the trial 

court’s] previous judicial review decision reversing SEAC’s order 

on IDEM’s motion to dismiss. “The law-of-the-case doctrine 

provides that an appellate court’s determination of a legal issue 

binds both the trial court and the court on appeal in any 

subsequent appeal involving the same case and substantially the 

same facts.” Luhnow[ v. Horn], 760 N.E.2d [621, 625 (Ind. Ct. 

App. 2001)]. However, a motion to dismiss and a motion for 

summary judgment are two different procedural vehicles which 

address different legal issues. Id. at 627. Moreover, SEAC’s 

summary judgment relied on evidence beyond that considered in 

the motion to dismiss, namely, the e-mails which were the 

alleged “report” under Indiana’s WB[L]. Because SEAC’s 

summary judgment order addresses a different legal issue and 

different evidence, the law-of-the-case doctrine does not apply 

here. Id. at 627-28.

13. Under the federal whistleblower statute, 5 U.S.C. § 2302 

(b)(8)-(9), federal courts apply the disinterested observer test to 

determine whether someone made a “report” of a violation of 

law. Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)[, 

cert. denied, 528 U.S. 1153 (2000)]. Under this test, a federal 
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 12 of 27

employee has made a “report” if “a disinterested observer with 

knowledge of the essential facts known to and readily 

ascertainable by the employee [could] reasonably conclude that 

the actions of the government evidence [a violation of law].” 

[Id.] “A purely subjective perspective of an employee is not 

sufficient even if shared by other employees.” Id.

* * *

16. Since his termination, [Brown] has alleged that the April 

26, 2016 e-mail was a report about IDEM falsely reporting data 

to the [Environmental Protection Agency (“EPA”).] However, a 

disinterested observer reading the April 26, 2016 e-mail could not 

reasonably conclude that [Brown] was making a report that 

IDEM was falsely reporting data to the EPA. [Brown] was 

complaining only about Bowman’s poor workplace performance 

and was not alleging a violation of law under the WB[L].

17. [Brown] next alleges that he was wrongly terminated for 

reporting a misuse of public resources under Indiana’s WB[L]. 

[Brown] relies on the April 26, 2016 e-mail, an April 28, 2016 email, and an April 29, 201[6] e-mail, as evidence of a “report” 

under Indiana’s WB[L].

18. The Court of Appeals interpreted the phrase, “misuse of 

public resources” under a similarly worded whistleblower statute, 

Indiana Code § 22-5-3-3, which is directed to state contractors. 

Coutee v. Lafayette Neighborhood Hous. Servs., Inc., 792 N.E.2d 907, 

914 (Ind. Ct. App. 2003). Coutee held that the phrase “misuse of 

public resources,” “contemplates a direct expenditure or use of 

public funds, property, or resources for a purpose other than that 

contemplated by the contract in question.” [Id.] at 914. The 

phrase “misuse of public resources” should not be so broadly 

interpreted to apply to “allegations of ineffective management 

style that might result in increased administrative costs.” Id.
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 13 of 27

19. Indiana Code § 22-5-3-3 is very similar to Indiana Code § 

4-15-10-4, which is at issue here. And the particular phrase being 

interpreted, “misuse of public resources,” is identical to the 

language in Indiana Code § 4-15-10-4(a)(4), thus Coutee’s 

interpretation of “misuse of public resources” is applicable here.

20. Coutee explains that to show a misuse of public resources, 

the “report” must allege that certain funds were intended for a 

certain purpose but were subsequently used for another reason. 

Coutee, 792 N.E.2d at 914. But here, none of the emails show 

what funds were at issue or how they were used for another 

purpose. [Brown’s] complaints about Bowman’s alleged 

mismanagement, intentional or not, suggests that there might be 

increased administrative costs. But this does not rise to the level 

required in Coutee to support a claim of misuse of public funds. 

None of [Brown’s] three emails are a report about the misuse of 

public resources.

21. Finally, SEAC found that: “[Brown] was terminated 

because his actions of running samples without verifying the 

valid calibration and on at least two occasions analyzing samples 

and reporting invalid data as valid did not meet [IDEM’s] 

standards, not because he inadvertently emailed his supervisor 

about possible federal grant fraud perpetuated by [IDEM].”

22. [Brown] alleges that this finding is not supported by 

substantial evidence and was arbitrary and capricious.

23. SEAC’s’ conclusion regarding the reason for [Brown’s] 

termination was based on a finding of fact, paragraph 19, in 

SEAC’s decision, which states:

[IDEM] felt that [Brown’s] actions of running samples 

without verifying the valid calibration and on at least two 

occasions analyzing samples and reporting invalid data as 
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 14 of 27

valid did not meet agency standards, so it terminated 

[Brown] on May 6, 2016, for failure to perform basic tasks 

and falsifying data.

24. This finding is supported by paragraph 138 of [Brown’s] 

complaint, in which [Brown] state[s] that “his career was 

summarily terminated based on an allegedly falsification of data 

and poor work performance,” and by [IDEM’s] Exhibit A, 

Brown’s termination letter, which was designated as evidence by 

both parties.

25. “Substantial evidence is more than a scintilla, but 

something less than a preponderance of the evidence.” State v. 

Carmel Healthcare Mgmt., Inc., 660 N.E.2d 1379, 1384 (Ind. Ct. 

App. 1996). SEAC’s finding was supported by [Brown’s]

complaint and Brown’s termination letter, which is substantial 

evidence to support SEAC’s conclusion of law and was not 

arbitrary and capricious.

26. Moreover, a party to judicial review must prove harm or 

prejudice prior to the court finding reversible error. See Indiana 

State Bd. Of Embalmers & Funeral Directors v. Kaufman, 463 N.E.2d 

513, 520 (Ind. Ct. App. 1984).

27. [Brown] has not shown that this conclusion of law causes

[him] any harm. [Brown] was an at-will employee, and IDEM 

could terminate him for any reason that is not a violation of law. 

SEAC properly concluded that IDEM’s stated reason for 

Brown’s termination was not a pretext for retaliatory discharge.

[2]8. The decision by SEAC was not arbitrary, capricious, or an 

abuse of discretion, and the decision was supported by 

substantial evidence. [Brown] has not shown that SEAC 

decision warrants reversal under Indiana Code § 4-21.5-5-14(d).
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 15 of 27

Appealed Order 7-11 (footnote and record citations omitted). Brown now 

appeals. 

Discussion and Decision 

I. Standard of Review

[11] Brown appeals from the trial court’s denial of his petition for judicial review of 

the SEAC’s decision. Under the Administrative Orders and Procedures Act, 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). “A decision is deemed arbitrary and capricious 

when it is patently unreasonable and is made without consideration of the facts 

and in total disregard of the circumstances [and] lack[s] any basis which might 

lead a reasonable person to the same conclusion.” Ind. Alcohol and Tobacco 

Comm’n v. Spirited Sales, LLC, 79 N.E.3d 371, 380 (Ind. 2017) (internal citation 

and quotation omitted). 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 
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 16 of 27

on its authority to govern in that area.” Spirited Sales, LLC, 79 N.E.3d at 375

(citation omitted). 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). 

“An 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.” LTV Steel Co. v. Griffin, 730 

N.E.2d 1251, 1257 (Ind. 2000). 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 will affirm the agency’s judgment unless it is clearly erroneous. Id. 

II. Whistleblower Claim

[12] We begin by briefly addressing Brown’s employment status at the time of his 

termination. It is undisputed that, at the time, Brown was an unclassified atwill employee:

(a) An employee in the unclassified service is an employee at 

will and serves at the pleasure of the employee’s appointing 

authority.

(b) An employee in the unclassified service may be dismissed, 

demoted, disciplined, or transferred for any reason that does not 

contravene public policy.
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 17 of 27

Ind. Code § 4-15-2.2-24 (emphasis added). Here, Brown claims he was 

terminated in retaliation for his alleged whistleblower claim – a public policy 

exception to his at-will employment status.

A. Law-of-the-Case Doctrine

[13] Brown argues the trial court erred in determining that the law-of-the-case 

doctrine was inapplicable. Brown argued to the trial court that this “doctrine 

forecloses many of [IDEM’s] arguments, as a result of [the trial court’s] 

previous judicial review decision reversing SEAC’s order on IDEM’s motion to 

dismiss.” Appealed Order at 7, ¶12. We conclude the trial court did not err.

[14] The law-of-the-case doctrine provides that an appellate court’s determination of 

a legal issue binds both the trial court and court on appeal in any subsequent 

appeal involving the same case and substantially the same facts. In re Change to 

Established Water Level of Lake of Woods in Marshall Cty., 822 N.E.2d 1032, 1042

(Ind. Ct. App. 2005), trans. denied. The doctrine is a discretionary tool with the 

purpose of minimizing unnecessary repeated litigation of legal issues once they 

have been resolved by an appellate court. Think Tank Software Dev. Corp. v. 

Chester, Inc., 30 N.E.3d 738, 744-45 (Ind. Ct. App. 2015), trans. denied. To 

invoke the doctrine, the matters decided in the earlier appeal must clearly 

appear to be the only possible construction of a decision. Dutchmen Mfg., Inc. v. 

Reynolds, 891 N.E.2d 1074, 1082-83 (Ind. Ct. App. 2008), trans. denied. “Thus, 

questions not conclusively decided in the earlier appeal do not become the law 

of the case.” Id. at 1083.
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 18 of 27

[15] This doctrine is inapplicable to the instant matter for several reasons. First, this 

doctrine is applicable only when an appellate court determines a legal issue, not 

a trial court. Here, following the SEAC’s order granting IDEM’s motion to 

dismiss, Brown filed his first petition for judicial review with the trial court. 

The trial court reversed the SEAC’s decision and remanded for further 

proceedings. No issues were ever determined by an appellate court such that

this doctrine would be applicable. 

[16] Second, although the trial court here is acting as a reviewing court to some 

extent, even if the doctrine were applicable to bind the trial court to its own 

decision in subsequent phases of litigation, its decision on a motion to dismiss –

based solely on the pleadings – cannot bind it on a motion for summary 

judgment, which has an entirely different standard of review. In a similar case, 

Luhnow v. Horn, the trial court granted a party’s motion for judgment on the 

pleadings, this court reversed and remanded, and the trial court subsequently

granted a motion for summary judgment. 760 N.E.2d at 624. On appeal, a 

panel of this court affirmed the trial court and held that the law-of-the-case 

doctrine was inapplicable because the standards of review for judgment on the 

pleadings and summary judgment are different, the appellate court did not 

consider the merits of a party’s complaint in the prior appeal, and the trial 

court, in granting summary judgment, “look[ed] beyond the pleadings to the 

designated material[.]” Id. at 625-28. We conclude that if the doctrine was not 

invoked in Luhnow, a case very similar to the instant case, the doctrine is 

inapplicable here where there was no intervening appellate court decision.
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 19 of 27

[17] And finally, additional evidence was considered by the SEAC, including 

Brown’s e-mails, on remand. Therefore, the trial court’s order regarding 

Brown’s first petition, in which it remanded the matter to the SEAC, is not 

binding on the trial court or this court. The trial court did not err in concluding 

the law-of-the-case doctrine is not applicable here.

B. Interpretation of Indiana’s Whistleblower Act

[18] Brown argues he was terminated in retaliation for being a whistleblower – a 

public policy exception to the at-will employment status of an unclassified 

employee – by reporting IDEM’s alleged misuse of public resources and 

violation of law. Both the SEAC and trial court disagreed and concluded 

Brown was not reporting the misuse of public resources or a violation of law in 

his emails to his supervisor. He contends the trial court incorrectly interpreted 

the WBL for two reasons. First, he claims the trial court was incorrect because 

he reported intentional misconduct by his coworker, not simply ineffective 

management that resulted in increased administrative costs. And second, he 

claims the trial court’s interpretation is incorrect because the WBL is broader 

than the government contractor whistleblower statute, Indiana Code section 22-

5-3-3, used by the trial court in interpreting the phrase “misuse of public 
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 20 of 27

resources” contained in the state employee’s WBL.

5

 We review an agency’s 

conclusions of law de novo. Moriarity, 113 N.E.3d at 619. 

[19] The state employee whistleblower statute at issue in this case, Indiana Code 

section 4-15-10-4, provides:

(a) Any employee may report in writing the existence of:

(1) a violation of a federal law or regulation;

(2) a violation of a state law or rule;

(3) a violation of an ordinance of a political subdivision 

(as defined in IC 36-1-2-13); or

(4) the misuse of public resources;

to a supervisor or to the inspector general.

(b) For having made a report under subsection (a), the employee 

making the report may not:

(1) be dismissed from employment[.]

5 Brown states that the SEAC did not appear to consider whether the WBL would apply to intentional 

misconduct but instead concluded his complaint involved allegations that his coworker was not doing his job 

properly without citing caselaw interpreting the government contractor whistleblower statute. See Amended 

Brief of Appellant at 22 n.9. And “to the extent that such an interpretation can be inferred, [Brown contends] 

it still [is] an improper determination which this Court can review de novo.” Id.
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 21 of 27

[20] Here, the SEAC concluded that Brown’s April 2016 emails constituted a 

“report” under the WBL but did not contain a report concerning the misuse of 

public resources or a violation of law such that he should not have been terminated. 

App. of Appellant, Vol. V at 244-45, ¶¶ 23-27. Relying on this court’s 

interpretation of the “misuse of public resources” of the state contractor 

whistleblower statute in Coutee, 792 N.E.2d at 914, the trial court agreed that 

Brown did not report the misuse of public resources or a violation of law. 

Appealed Order at 9-10; see also Indiana Code § 22-5-3-3.6 The trial court found 

that the phrase “misuse of public resources” in the state contractor 

whistleblower statute is identical to the language at issue here such that Coutee’s 

interpretation of the phrase in the state contractor statute is applicable here. See

Appealed Order at 9, ¶ 19. We agree.

[21] In Coutee, an employee was fired by her employer, a private non-profit 

corporation, after she had expressed her concern about the management and

“direction of the organization” to an employee of the non-profit corporation 

that provided funding to her employer. 792 N.E.2d at 909. The employee sued 

her employer alleging she had been terminated in retaliation for reporting what 

she believed to be misuse of public resources, in violation of the state contractor 

6 The statute provides, in part: “(a) An employee of a private employer that is under public contract may 

report in writing the existence of: (1) a violation of a federal law or regulation; (2) a violation of a state law or 

rule; (3) a violation of an ordinance of a political subdivision (as defined in IC 36-1-2-13); or (4) the misuse of 

public resources . . . concerning the execution of public contract[.]” In addition, a contractor may not be 

dismissed from employment for having made such a report. Ind. Code § 22-5-3-3(b)(1).
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 22 of 27

WBL. Id. at 909-10. As a case of first impression, a panel of this court

addressed the “misuse of public resources” provision in the statute and held

that “misuse of public resources” as used in IC 22-5-3-3 

contemplates a direct expenditure or use of public funds, 

property, or resources for a purpose other than that contemplated 

by the contract in question. Under this construction, “misuse” 

includes instances where public funds earmarked for a specific 

purpose by the contract were misspent, whether intentionally or 

not, for another purpose, whether legitimate or not, and does not 

necessarily require ethical impropriety[.] For example, misuse 

would exist if an employee used public funds for personal 

purposes or applied the funds to a cause or purpose contrary to or 

beyond the scope of the directive(s) of the contract. Given our 

construction, we conclude that misuse in the context of IC 22-5-

3-3 does not include allegations of ineffective management style 

that might result in increased administrative costs to the 

employer due to employee turnover.

Id. at 914. Given the identical language of the statutes, we are unpersuaded by 

Brown’s argument that the trial court erred in employing this definition. As 

such, applying that definition here, we cannot conclude that any of Brown’s 

April 2016 emails contained an allegation of the misuse of public resources. 

[22] In his April 26, 2016 email, Brown complained of Russell’s poor work 

performance with respect to two calibration checks. Brown further alleged that 

the result of Russell’s “actions, or lack thereof, was that the complaint analysis 

was unnecessarily delayed by at least a week[.]” App. of Appellant, Vol. II at 

194. Brown characterized Russell’s behavior as “willful negligence and 

deception[,]” which he believed “created unnecessary controversy and 
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 23 of 27

undermined group trust and comradery.” Id. In Brown’s April 28 email, he 

again outlined an instance concerning Russell’s work performance alleging that 

he failed to use a heat gun to remedy a contamination issue but instead “tried 

the most elaborate and invasive remedies first[.]” Id. at 200. This led Brown to 

question Russell’s education and experience; he speculated that Russell 

intentionally acted in this manner to “a) satisfy his OCD like urges, b) defy his 

fellow chemists, and c) deliberately mislead the trainee down a path of 

inevitable chronic backlog.” Id. Brown also wrote that “this [was] not the only 

time [he has] caught Russell giving . . . questionable advice, if not deliberate 

misinformation. It is distracting, divisive, and it wastes time.” Id. Finally, in 

Brown’s final email to Pfeffer on April 29, he suggested that Russell stay out of 

the Air Toxics area and remain in his cubicle because he and another coworker 

could handle the work. See id. at 202.

[23] Brown did not identify any public funds or resources at issue and did not allege 

the misuse of a direct expenditure, public funds, or public resources. In these 

emails, Brown detailed only what he believed to be Russell’s inadequate work 

performance and questionable advice and actions, intentional or not, which he 

believed led to a backlog and wasted time. Nor did Brown allege that Russell 

or any other IDEM employee “used public funds for personal purposes or 

applied the funds to a cause or purpose contrary” to IDEM or the State of 

Indiana. Coutee, 792 N.E.2d at 914. 

[24] In addition, Brown argued that his emails contained a report of a violation of 

law: that IDEM was reporting false data to the EPA. In determining whether 
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 24 of 27

Brown reported a violation of law in his emails, the trial court looked to the 

federal Whistleblower Protection Act (“WPA”), 5 U.S.C. § 2302(b)(8), and the 

federal courts’ interpretation thereof for guidance. Appealed Order at 7-8, ¶ 13. 

Federal courts apply a disinterested person test to determine whether an 

employee reported a violation of law: “could a disinterested observer with 

knowledge of the essential facts known to and readily ascertainable by the 

employee reasonably conclude that the actions of the government evidence [a 

violation of law]?” Lachance, 174 F.3d at 1381. And “[a] purely subjective 

perspective of an employee is not sufficient even if shared by other employees.” 

Id. We conclude a disinterested observer could not reasonably conclude from 

Brown’s emails that IDEM was violating the law by reporting false data to the 

EPA. 

[25] In sum, Brown never once mentioned public funds or resources; he has not 

shown how he alleged any violation of law and a disinterested observer could 

not reasonably conclude IDEM was violating any law based on Brown’s 

emails. As such, Brown did not report the misuse of public resources or a 

violation of law protected by the WBL. Therefore, the trial court did not err in 

determining that the SEAC’s decision that Brown was not a whistleblower was 

not arbitrary, capricious, or an abuse of discretion.

III. Substantial Evidence

[26] Brown also contends the SEAC’s decision was not supported by substantial 

evidence claiming that “there was not a scintilla of evidence” supporting its 
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 25 of 27

decision. Amended Brief of Appellant at 18. Specifically, Brown asserts that

the SEAC’s finding that his emails were merely complaints about his coworker 

was “simply . . . an incorrect reading of his emails” and instead, the emails 

“conclusively demonstrate that [he] was not simply complaining about his coworker’s inability to do his job, but his deliberate conduct contrary to IDEM’s 

directives[, which] falls squarely within the protections afforded” by the WBL. 

Id. at 24-25. We disagree and conclude the SEAC’s decision was supported by 

substantial evidence.

[27] Our standard for reviewing administrative agency decisions is well settled: 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). And when reviewing an administrative agency’s decision, this court 

stands in the same position as the trial court. Id.

[We] may not substitute [our] judgment on factual matters for 

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

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

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 and internal citation omitted).

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

less than a preponderance of evidence. Substantial evidence means such 
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 26 of 27

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. Here, IDEM’s May 6 termination letter to Brown stated that “[o]n at 

least two occasions, you analyzed samples and reported invalid data as valid. 

Your failure to perform the basic task of checking the calibration does not meet 

performance standards and reporting false data is considered a dishonest act. 

Both actions are unacceptable, do not meet agency standards, and are the 

reason[s] for this disciplinary action.” App. of Appellant, Vol. II at 42. 

Furthermore, the SEAC found that Brown’s emails did not contain a report of 

misuse of public resources or a violation of law.

[29] We conclude that IDEM’s termination letter to Brown and Brown’s emails

support the SEAC’s finding that Brown’s emails were merely complaints about 

his coworker and its conclusion that Brown was not a whistleblower. Brown’s 

argument to the contrary amounts to an invitation for us to reweigh the 

evidence in his favor, which we cannot do. 255 Morris, LLC, 93 N.E.3d at 1153. 

Therefore, the trial court did not err in concluding the SEAC’s decision was 

supported by substantial evidence.

7

7 Brown also takes issue with the SEAC’s conclusion that there was no causal link between his termination 

and his whistleblower claim. Specifically, Brown argues that the SEAC’s causation determination was 

arbitrary, capricious, and an abuse of discretion because the SEAC did not call for the submission of any 

evidence and therefore, he did not present “all material pertinent to [the summary judgment motion] because 

IDEM had stated they were not arguing for Summary Judgment based on causation”; the determination 

violated his due process rights because the SEAC did not make a finding but merely recited what IDEM 

“felt” and it failed to provide a reason for disregarding his evidence; and the determination was not supported 

by substantial evidence. Amended Br. of Appellant at 14-17. In addition, Brown argued that the SEAC’s 
Court of Appeals of Indiana | Opinion 19A-MI-2051 | May 29, 2020 Page 27 of 27

[30] In sum, we cannot conclude the SEAC’s decision was arbitrary, capricious, an 

abuse of discretion, or unsupported by substantial evidence. Therefore, the trial 

court did not err in denying Brown’s petition for judicial review. 

Conclusion

[31] For the reasons set forth above, we conclude the trial court did not err in 

concluding the SEAC’s decision that Brown was not a whistleblower was not 

arbitrary, capricious, or an abuse of discretion or in concluding the SEAC’s 

decision was supported by substantial evidence. Accordingly, the judgment of 

the trial court is affirmed.

[32] Affirmed.

Bradford, C.J., and Altice, J., concur.

findings of fact were unreasonable and the agency “reached its conclusion without any analysis of [his] 

evidence, which specifically explained why he had not done what IDEM alleged” in his termination letter. 

Id. at 20. Because we agree that Brown’s reports were not protected by the WBL and he therefore failed to 

establish a public policy exception to his at-will employment status, our analysis ends there. As an 

unclassified at-will employee, IDEM could terminate Brown for any reason that does not contravene public 

policy and because he failed to establish such public policy, Ind. Code § 4-15-2.2-24(b), the question of 

whether there was a causal link between his report and termination, IDEM’s stated reason for his 

termination, and any findings thereon, are irrelevant and do not harm Brown because he is not a 

whistleblower. Accordingly, we need not address Brown’s arguments on appeal pertaining to this issue.