Frequently in our column we report that the matter is determined by a motion for summary judgment. We have been asked on occasion to explain the basis for a motion for summary judgment. The case that follows does exactly that. 

The plaintiff filed a lawsuit against her former employer. The plaintiff alleged that she was terminated in violation of Indiana Code Section 22-5-3-3 and Indiana Occupational Safety and Health Administration regulations. The case was filed in state court but was removed to the United States District Court based on a question of diversity. The defendant employer moved for summary judgment, which was granted.

The court pointed out that summary judgment is appropriate when the record demonstrates that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. The court then indicated that it construed the evidence in all inferences that reasonably can be drawn from the evidence in the light most favorable to the non-moving party. The moving party bears the burden of informing the court of the basis for its motion and identifying the parts of the records that demonstrate the absence of any genuine issue of material fact.  

The court further went on to say that the non-moving party bears the responsibility of identifying the evidence upon which he relies.  

In the case at hand, the plaintiff was a systems safety, health, and environmental specialist at the employer’s facility who complained in writing about health and safety issues in the facility. She alerted the company representatives that soon after she arrived, a co-worker asked her to submit inaccurate workplace injury rates to the Indiana Occupational Safety and Health Administration. Following an incident in which the fire alarms were triggered at the facility, the plaintiff complained that the company didn’t have an adequate emergency response plan. She also reported concerns with the electrical system, ergonomic problems, and that employees were exposed to high levels of solder exhaust.

It was determined by investigators that the safety, health and environmental issues uncovered by the investigators validated the plaintiff’s complaints.  

The plaintiff then brought suit against her employer alleging that the termination violated Indiana’s whistleblower statute and Indiana Occupational Safety and Health Administration regulations.  

The defendant filed a motion for summary judgment which among other things, argued that the plaintiff cannot establish a prima facie case because the written complaint didn’t concern the execution of a government contract or identify a violation of law.  The statue requires that a written complaint must concern “the execution of public contract.” 

The defendant acknowledged that the company entered into public contracts and didn’t present evidence contradicting the plaintiff’s testimony. The court, however, indicated that viewing the evidence in the light most favorable to the plaintiff and drawing all permissible inferences in her favor, a reasonable jury might find that the plaintiff’s complaints about lack of an adequate emergency response plan concerned the execution of a government contract.

Her complaints did not allege violations of law on their face, but her reports caused enough concern that the defendant’s corporate office started an internal audit of the company’s facility. 

She did not direct the court to any section or code, regulation, rule or ordinance she claimed was violated. “A whistleblower has to complain about such a violation … before the Act’s protections are triggered.”  In addition, the court pointed out that the plaintiff did not address any of defendant’s arguments or in any way support her IOSHA retaliation claim in her response brief or at the hearing. Therefore the defendant’s motion for summary judgment was granted.


Readers Ask


 I have an alarm company and one of our commercial accounts has indicated that they want to be included as a loss payee on our company insurance policy. Is this something we should consider or not?  

 To ask Les Gold a question, e-mail



This is a question you really have to present to your insurance carrier. Is this a benefit to you? Not necessarily. If a third party makes a claim against your company and names your subscriber, then the carrier would have to defend on behalf of not only you, but your subscriber, which of course would increase the exposure of your carrier. The probability is your carrier, if they agree, will no doubt increase the amount of your premium. If that is the case, then the question for you is whether it is worth it from an economic standpoint.  

Your subscriber should carry their own liability insurance policy. In this case there would be no basis for them being named as an additional payee on your policy. My understanding is that most carriers are reluctant to include subscribers as an additional loss payee.  

The bottom line, I would advise your subscriber that it is up to the carrier to make that decision and you have no objection as long as it does not increase your premium.