Kelvin T. Brown v. Indianapolis Housing Agency

FOR PUBLICATION
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
KELVIN T. BROWN KATHLEEN A. DeLANEY
Indianapolis, Indiana AMANDA COUTURE
DeLaney & DeLaney
Indianapolis, Indiana
FILED
Jul 24 2012, 9:11 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
KELVIN T. BROWN, )
)
Appellant-Plaintiff, )
)
vs. ) No. 49A05-1111-CT-648
)
INDIANAPOLIS HOUSING AGENCY, )
)
Appellee-Defendant. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David A. Shaheed, Judge
Cause No. 49D01-0709-CT-37992
July 24, 2012
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
Kelvin Brown was employed by the Indianapolis Housing Agency (“IHA”). After an
investigation by an IHA officer, IHA concluded that Brown had been conducting personal
business during work hours and terminated Brown‟s employment. Thereafter, Brown was
charged with ghost employment, official misconduct, and deception, but the charges were
ultimately dismissed voluntarily by the prosecutor. Brown then sued IHA for malicious
prosecution and intentional infliction of emotional distress. The trial court granted summary
judgment for IHA.
We conclude that IHA had a qualified privilege to report Brown‟s suspected criminal
conduct. The designated evidence does not show that the privilege was abused, and the
privilege bars Brown‟s claim for both malicious prosecution and intentional infliction of
emotional distress. Much of the same evidence also negates elements of Brown‟s claims.
Therefore, we affirm the judgment of the trial court.
Facts and Procedural History
In 1999, Brown began working for IHA as a Section 8 housing inspector.1 Brown‟s
job was to inspect properties that were receiving public funds to insure that the properties
were in compliance with the Department of Housing and Urban Development‟s housing
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IHA Officer Stephen Golden described the Section 8 program as follows:
The Indianapolis Section 8 program is designed to help low income families rent apartments
or homes in the private market in both Marion County Indiana and in a certain radius of the
contiguous counties to Marion County. Under this program, HUD [Department of Housing
and Urban Development] provides funds to IHA for rent subsidy on behalf of eligible
families, pursuant to Section 8 of the United States Housing Act of 1937 (42 United States
Code 1437f).
Appellee‟s App. at 42.
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quality standards. Inspectors spent most of their work day in the field. IHA provided
inspectors with a car to use during work hours. Inspectors were not allowed to take the cars
home at night or use them for personal business. In May 2002, IHA installed GPS devices in
the cars.
In addition to being an inspector, Brown owned some rental properties, including one
on Winthrop Street and one on South Harris Street in Indianapolis. These properties were
not part of the Section 8 program and had nothing to do with Brown‟s work for IHA.
IHA has its own police officers. Beginning in 2002, IHA officers were conducting an
ongoing investigation into Section 8 inspectors. In 2004, a series of events occurred that led
IHA to believe that Brown was conducting personal business related to his rental properties
during work hours.
On June 7, 2004, Brown appeared in the Marion County Small Claims Court, located
in the City-County Building, for a case relating to one of his rental properties. Brown
submitted a form requesting leave dated June 8, 2004. Brown asserts that he wrote down the
wrong date and actually submitted the form on or before June 7. His request was not granted
by June 7, so he reported to work that day. During his lunch break, he drove to the 300 block
of East Market Street. He quickly got something to eat and then walked to the City-County
Building for his court hearing.
GPS data confirms that Brown‟s car was stopped in the 300 block of East Market
Street from 1:25 p.m. to 1:53 p.m., which is within the time frame that he was permitted to
take a lunch break. IHA‟s inspection log also shows that Brown conducted five inspections
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on June 7. Brown‟s supervisor, Dorothy Henderson, approved Brown‟s request for leave
after the fact. Despite having actually worked on June 7, Brown stated on his time card that
he was “Off” that day. Appellee‟s App. at 45.
Later, IHA received an anonymous tip that Brown had been in small claims court on
June 29, 2004. Brown‟s time card states that he worked from 8:00 a.m. to 12:00 p.m. and
1:00 p.m. to 5:00 p.m. that day. GPS data shows that he did not start driving his car until
9:39 a.m. He then drove to the area of his rental property on South Harris Street. IHA‟s
Inspection Status Report shows that no inspections were scheduled in that area. Brown
asserts that IHA had an informal policy of conducting “drive-by” inspections to check on the
exterior condition of Section 8 properties. He further claims that they were not required to
make reports on drive-by inspections unless there was a problem. Brown claims that he was
doing a drive-by inspection on South Harris Street that day and did not stop at his rental
property.
In September 2004, IHA suspended Brown for five days. Based on the events of June
7 and 29, the IHA found that he had violated the following rules: failure to devote full
attention to duties for the entire work period; abuse, misuse, or destruction of equipment,
facilities, supplies, records, or funds; unauthorized use of equipment, facilities, supplies,
records, or funds; leaving the work area during work hours without prior authorization from a
supervisor; and making a false report or statement related to the job.
On October 25, 2004, Brown again had a hearing in small claims court. Brown signed
in to work at 8:00 a.m. Henderson was not at work. Brown asserts that when Henderson was
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gone, Danitra Alexander was the acting supervisor. Brown claims that he asked Alexander
for permission to go to court, that she gave her approval, and that she saw him place his
request for leave on Henderson‟s desk. Brown did not sign out when he left to attend his
court hearing. Alexander confirmed that she remembered Brown asking for permission to
attend court.
A few days later, Brown was terminated. The Corrective Action Form indicates that
IHA found that his conduct on October 25 was in violation of the rules about devoting full
attention to duties, leaving work, and making a false statement. Brown filed a union
grievance on the ground that his discipline was not progressive. On November 24, 2004, the
grievance was denied because Brown had previously been disciplined for similar misconduct.
IHA‟s investigation of Brown culminated in a probable cause affidavit, which was
written by Officer Stephen Golden. On January 6, 2005, Brown was charged in Marion
Superior Court with ghost employment, official misconduct, and two counts of deception.
The charges were based on allegations that he conducted personal business during work
hours, used an IHA vehicle for personal reasons, and made false statements on his time cards.
On December 15, 2006, the State filed a motion to dismiss the charges. The form filed by the
prosecutor listed “evidentiary problems” as the reason for dismissal. Id. at 59. An affidavit
by Mary Ann Fleetwood, a deputy prosecutor who had been assigned to Brown‟s case, says
that the State “had every intention of prosecuting Kelvin Brown,” and that “as a result of
evidentiary issues, including the unavailability of essential witnesses,” the case was
dismissed. Id. at 62.
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On September 7, 2007, Brown sued IHA for malicious prosecution and intentional
infliction of emotional distress. On April 11, 2011, IHA filed a motion for summary
judgment, a brief in support, and designated evidence. Brown filed a response and
designation of evidence on May 31, 2011. On July 15, 2011, the trial court granted summary
judgment for IHA. Brown filed a motion to correct error, which the trial court denied.
Brown now appeals.
Discussion and Decision
Summary judgment is appropriate only when there are no genuine issues of material
fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C).
Our standard of review is well settled:
In reviewing a trial court‟s ruling on summary judgment, this court stands in
the shoes of the trial court, applying the same standards in deciding whether to
affirm or reverse summary judgment. Thus, on appeal, we must determine
whether there is a genuine issue of material fact and whether the trial court has
correctly applied the law. In doing so, we consider all of the designated
evidence in the light most favorable to the non-moving party. The party
appealing the grant of summary judgment has the burden of persuading this
court that the trial court‟s ruling was improper.
Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 687 (Ind. Ct. App. 2006) (citations
omitted). “In reviewing a trial court‟s ruling on a motion for summary judgment, we may
affirm on any grounds supported by the Indiana Trial Rule 56 materials.” Kozlowski v. Lake
Cnty. Plan Comm’n, 927 N.E.2d 404, 408 (Ind. Ct. App. 2010), trans. denied.
IHA advances several reasons why summary judgment was appropriate, one of which
we find to be dispositive of both Brown‟s malicious prosecution claim and his intentional
infliction of emotional distress claim: whether IHA had a qualified privilege to make a
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criminal complaint against Brown.
In Williams v. Tharp, our supreme court stated:
A qualified privilege “applies to communications made in good faith on any
subject matter in which the party making the communication has an interest or
in reference to which he had a duty, either public or private, either legal, moral,
or social, if made to a person having a corresponding interest or duty.”
914 N.E.2d 756, 762 (Ind. 2009) (quoting Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind.
1992)). The court further noted that it is “well established that in Indiana, communications
made to law enforcement to report criminal activity are qualifiedly privileged.” Id. (quoting
Kelley v. Tanoos, 865 N.E.2d 593, 601 (Ind. 2007)). The purpose of the privilege is to
enhance public safety by facilitating the investigation of suspected criminal activity. Id. at
762-63. The defendant, here IHA, has the burden of showing that its statements fall within
the privilege. Id. at 762. The plaintiff then has the burden of overcoming the privilege by
showing that it has been abused. Id. “When speaking of abuse, „the essence of the concept is
not the speaker‟s spite but his abuse of the privileged occasion by going beyond the scope of
the purposes for which privilege exists.‟” Id. (quoting Holcomb v. Walter’s Dimmick
Petroleum, Inc., 858 N.E.2d 103, 106 (Ind. 2006)). The privilege has been abused if: “(1)
the communicator was primarily motivated by ill will in making the statement; (2) there was
excessive publication of the defamatory statements; or (3) the statement was made without
belief or grounds for belief in its truth.” Id. at 763-64.
The privilege has been applied to claims of defamation, false imprisonment,
intentional infliction of emotional distress, and negligence. Id. at 769. We conclude that the
privilege also applies to malicious prosecution, which is analogous to the defamation claim at
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issue in Williams. In Williams, the plaintiffs, Sanford Kelsey and Thomas Williams, went to
a Papa John‟s restaurant to pick up an order. Kelsey was wearing a black fanny pack with
silver reflective material, and he reached into the fanny pack to retrieve his wallet. Kelly
Tharp, a Papa John‟s employee, saw Kelsey reach for his waist and believed that he saw
Kelsey pull out a gun. Tharp exited the building and told a passerby that someone inside had
pulled out a gun. The passerby called the police, who detained Kelsey and Williams, but did
not find a gun in their possession. Kelsey and Williams sued Papa John‟s and Tharp for a
variety of torts, including defamation. Our supreme court stated, “As a defense to
defamation, the qualified privilege operates not to „change the actionable quality of the words
published, but merely [to] rebut[ ] the inference of malice that is [otherwise] imputed.” Id. at
762 (quoting Holcomb, 858 N.E.2d at 106).
Like the defamation claim in Williams, Brown‟s malicious prosecution claim arises
out of the reporting of suspected criminal conduct. As with defamation, malice is an element
of malicious prosecution:
There are four elements of a malicious prosecution claim: (1) the defendant
[in this case, IHA] instituted or caused to be instituted an action against the
plaintiff [Brown]; (2) the defendant acted with malice in doing so; (3) the
defendant had no probable cause to institute the action; and (4) the original
action was terminated in the plaintiff's favor.
City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind. 2001). Malice may be inferred
from a total lack of probable cause, the failure to make a reasonable or suitable inquiry, or a
showing of personal animosity. Kroger Food Stores, Inc. v. Clark, 598 N.E.2d 1084, 1089
(Ind. Ct. App. 1992). These grounds for inferring malice are similar to the grounds for
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finding that the privilege to report suspected criminal conduct has been abused. Therefore,
we conclude that the privilege applies equally to Brown‟s claim of malicious prosecution.
We turn then to whether the designated evidence raises a genuine issue of material
fact regarding whether the privilege was abused. We conclude that it does not. Brown does
not contend that there was excessive publication of his allegedly criminal conduct. As to ill
will, Brown believes that IHA‟s attorney, Pat Chavis, harbored ill will toward him because he
“had complained about perceived nepotism involving … Chavis.” Appellant‟s Br. at 12.
The probable cause affidavit does not mention Chavis. There is no indication that Officer
Golden or the prosecutor conferred with Chavis. Brown‟s assertion that Chavis would have
been the only person with authority to initiate criminal charges against him is pure
speculation.
Brown also argues that IHA harbors ill will against him because after he was
terminated, he “sent an e-mail to the agency voicing his displeasure for being terminated and
revealing unethical practices by management.” Id. In support, Brown cites a document that
appears to be a taped statement that Officer Golden made to his attorney in the criminal case.
Regarding the e-mail, Officer Golden states:
The only other thing that [I] didn‟t include in that was a[n] email that was
forwarded to me after he left, after Mr. Brown left his employment…. I didn‟t
include it in the evidence inventory[;] frankly it hurts him more than it helps
him[. It‟s] just a lot of wild ramblings and allegations.
Appellee‟s App. at 77. This evidence undermines rather than supports Brown‟s argument.
According to Officer Golden, the agency forwarded the e-mail to him to determine whether it
should be part of his investigation, and Officer Golden decided not to include it even though
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he felt that it was damaging to Brown.
As to whether the report of alleged criminal conduct was made without belief or
grounds for belief in its truth, our supreme court stated that “merely arguing about what the
speaker should have known is insufficient to show that the speaker made a statement
„without belief … in its truth.‟” Williams, 914 N.E.2d at 766 (quoting Bals, 600 N.E.2d at
1356). The privilege can be rebutted by showing that the speaker told “a deliberate lie.” Id.
This may be proven circumstantially if there is an “absence of any discernible basis for the
truth of the matter.” Id.
Brown asserts that “[i]n the instance of October 25, 2004 the probable cause affidavit
stated that Mr. Brown never turned in a benefit leave slip[;] however it turns out that this
evidence was withheld deliberately.” Appellant‟s Br. at 10. In his brief, Brown quotes a
lengthy passage purportedly from Alexander‟s deposition in which she states that she placed
the form on Henderson‟s desk and saw her pick it up. Brown also references a taped
statement given by Henderson in which she supposedly denied ever seeing the form. From
this evidence, Brown infers that Henderson lied about receiving the form and withheld it
from Officer Golden. Brown did not file an appendix. IHA did file an appendix, but it does
not include a taped statement by Henderson or the portion of Alexander‟s deposition that
Brown relies on. The appellee‟s appendix does include the probable cause affidavit
completed by Officer Golden, which states, “Brown claimed to his supervisor, Dorothy
Henderson, that he had left a benefit leave form on her desk prior to leaving. No such
document was found, and any excuse from work must be approved in advance.” Appellee‟s
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Ohio App. at 47. Thus, Officer Golden did not allege that Brown had not turned in a slip, but
merely stated that the document had not been found; in other words, Brown‟s contentions
could not be confirmed.
Brown accuses Officer Golden of saying in his taped statement that “he felt that there
was no need to speak with my supervisor or anybody in my department” and that it was not
“important for him … to investigate the allegations that he was making against me.”
Appellee‟s App. at 29, 31. A review of the transcript of the taped statement indicates that
Officer Golden said no such thing. The pages to which Brown cites establish, at worst, that
Officer Golden failed to elicit some information that might have supported Brown‟s claim
that some of the personal business was conducted during breaks that he was authorized to
take. This evidence does not show that Officer Golden deliberately lied, was so obviously
mistaken that he could not have believed that the statements in the probable cause affidavit
were true, or failed to conduct a reasonable investigation.
The probable cause affidavit reflects that Officer Golden took the following steps in
investigating Brown‟s conduct: (1) reviewed GPS data from the vehicle that Brown drove
for work; (2) researched Brown‟s criminal record; (3) reviewed previous incidents that
resulted in corrective administrative action against Brown; (4) confirmed that Brown had
signed a form indicating that he had received the IHA employee policies and procedures
manual; (5) confirmed that Brown had signed a form indicating his understanding that IHA
vehicles were not to be used for personal purposes; (6) reviewed a complaint against Brown
made via IHA‟s fraud hotline; (7) confirmed that Brown had been in court on June 7, June
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29, and October 25, 2004, by obtaining court records; (8) reviewed Brown‟s timecards; (9)
reviewed Section 8 inspection log reports to determine which properties he had inspected;
(10) reviewed Section 8 inspection status reports to determine which properties Brown was
assigned to inspect; (11) reviewed sign-in sheets; (12) attempted to locate the leave request
form that Brown claimed that he left on Henderson‟s desk; and (13) reviewed a complaint
made against Brown via the Mayor‟s Action Center. Brown does not appear to contest any
of this evidence, but merely offers an alternative explanation for his conduct. That IHA did
not reach the same conclusion about Brown‟s conduct is insufficient to show that it abused
the privilege for reporting suspected criminal conduct. Therefore, we conclude that the
privilege bars Brown‟s claims for malicious prosecution and intentional infliction of
emotional distress.
For essentially the same reasons, Brown cannot establish the element of malice in his
claim for malicious prosecution. Nor can he establish the elements of intentional infliction of
emotional distress.
The elements of the tort are that the defendant: (1) engages in extreme and
outrageous conduct (2) which intentionally or recklessly (3) causes (4) severe
emotional distress to another. The requirements to prove this tort are
“rigorous.” We quoted the following comment from the Restatement with
approval in Bradley v. Hall:
The cases thus far decided have found liability only where the
defendant‟s conduct has been extreme and outrageous. It has
not been enough that the defendant has acted with an intent
which is tortious or even criminal, or that he has intended to
inflict emotional distress, or even that his conduct has been
characterized by “malice,” or by a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has been so
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outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to
an average member of the community would arouse his
resentment against the actor, and lead him to exclaim,
“Outrageous!”
720 N.E.2d 747, 752-53 (Ind. Ct. App. 1999) (quoting Restatement (Second)
of Torts § 46 cmt. d (1965)). IIED is found where conduct exceeds all bounds
typically tolerated by a decent society and causes mental distress of a very
serious kind.
Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011). We conclude that, as a matter
of law, the designated evidence does not establish that IHA‟s conduct rose to the level of
extreme and outrageous. Therefore, we affirm the trial court‟s grant of summary judgment
for IHA.
Affirmed.
VAIDIK, J., and BRADFORD, J., concur.
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