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McClendon v. Harper

Court of Appeals of Georgia, Third Division

March 15, 2019

MCCLENDON
v.
HARPER et al.

          GOBEIL, J., COOMER and HODGES, JJ.

          HODGES, JUDGE.

         Glen McClendon sued his former employer, the Metropolitan Atlanta Rapid Transit Authority, and four MARTA employees (the "Individual Defendants") based on their alleged involvement in events leading to his arrest for theft by taking of a company van and his subsequent termination. McClendon asserts claims for false imprisonment, malicious arrest, and intentional infliction of emotional distress against the Individual Defendants. He also asserts a claim against MARTA for negligent hiring, training, and supervision as well as for vicarious liability for the torts of the Individual Defendants. He seeks punitive damages from all defendants. The trial court granted summary judgment in favor of all defendants as to all of McClendon's claims. McClendon appeals, and, for the reasons explained below, we affirm.

         Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]" OCGA § 9-11-56 (c).

[A] defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party's case.

(Citation and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (697 S.E.2d 779) (2010).

         Viewed in this light, the record shows that, in January 2014, McClendon was a MARTA communications technician with over 20 years of service who was assigned to work on projects on the east line. Calvin Harper was another technician, and Anthony Pines, Derek Terry, and Arnold Campbell were supervisors in McClendon's department. In connection with his work on the east line, McClendon regularly drove MARTA vehicle 15652 ("the van"). Under MARTA official policy, department vehicles must be checked into a facility called "the annex" when not in use for department business.

         On January 22, McClendon worked on the east line inspecting emergency phone lines until about 4:00 p.m. and then checked the van into the annex. He drove his personal vehicle to the Candler Park station, where he worked several hours overtime on a special project. Harper, who was then assigned to the south line, had previously been assigned to the east line, and he also had a key to the east line van. After McClendon checked the van into the annex on January 22, Harper took the van from the annex and parked it at the Kensington station on the east line, planning to retrieve it the next morning. McClendon deposed that, against regulations, Harper often used the van after hours for personal purposes and left it parked at a station, rather than at the annex. In his deposition, Harper conceded that he was written up many times for leaving a department van overnight at a location other than the annex in violation of department policies.

         After working at the Candler Park station on the evening of January 22, McClendon drove his personal vehicle to the Kensington station to clock out, arriving at approximately 9:45 p.m., and found the van in the parking lot there. Due to the late hour, McClendon did not call his supervisor about the location of the van. He drove the van from the Kensington station to the Maintenance of Way ("MOW") facility near the Avondale station on the east line in preparation for a project scheduled there for the next day. He rode the train back to the Kensington station and went home in his personal vehicle.

         Early on the morning of January 23, Harper went to the Kensington station to get the van, where he had left it the evening before, unaware that McClendon had moved it to the MOW facility. Harper called Pines about the missing van. Harper also called several other technicians to ask if anyone had moved the van, but, because of personal hostility between him and McClendon, he did not call McClendon to ask about the van.

         After hearing from Harper, Pines testified that he also called the technicians, asking each, "do you have the van?" According to McClendon, Pines asked him, "Do you have [the van] at Candler Park?" Since McClendon left the van at the Avondale station and did not have it at the Candler Park station, he answered, "No." According to McClendon, he tried to tell Pines that he left the van at Avondale the night before, but Pines hung up on him.

         Meanwhile, Harper went to the office to meet with Pines, who told him that all of the technicians had been called and no one seemed to know the location of the van. Pines deposed that Harper told him that he was going to report the van missing to the MARTA police although, according to Pines, that was not the ordinary practice. Harper called the MARTA police at about 9:00 a.m. on January 23. According to the MARTA detective who first interviewed Harper at about 9:45 a.m., McClendon became the focus of the investigation because Harper told the detective that he suspected McClendon had taken the van. Detectives reviewed station video, the use logs of McClendon's employee Breeze card, which he used to travel on the train, and his employee proximity card, which he used to enter employees-only areas of the stations.

         The station video and card data showed that at about 9:45 p.m. on January 22, McClendon left the Kensington station in the van and parked it at the MOW facility near the Avondale station and then rode the train from there back to the Kensington station and left in his personal vehicle.

         A few hours after Harper's initial report, Pines called McClendon and asked him to come in to the office to speak to a detective. McClendon did so after moving the van from the MOW facility back to the Kensington station. Pines deposed that he knew where the van was before lunchtime, that he had no evidence that McClendon stole anything, and that he does not know why the police continued their involvement after the van was located. According to Harper, he never thought that the van had been stolen but believed, based on what co-workers told him about McClendon's tasks the day before, that McClendon had moved the van to the Candler Park station.

         After arriving at his office, McClendon went with Pines and Harper to the MARTA police office, and detectives began questioning him. Fearing that he was being falsely accused of theft, McClendon stated that he did not want to talk without a union representative or a lawyer present. A union representative was summoned, but pursuant to MARTA police rules the detectives did not allow him into the interrogation room. Harper was also interviewed again.

         Based in part on reports from McClendon's supervisors that his duty shift on January 22 ended at 6:00 p.m., hours before he moved the van from the Kensington station to the Avondale station, and that he lacked authority to use MARTA vehicles when not on duty, a MARTA detective determined that there was probable cause to arrest McClendon and placed him under arrest, without a warrant, for theft by taking a motor vehicle.[1] The detective deposed that the decision to arrest McClendon was his decision, along with the detective's supervisor.

         According to McClendon, Pines told him privately that he reported the van missing as a prank or joke on him (McClendon) but that he would not admit that to the officers because he was not "going to jail for this prank that went bad." McClendon's wife deposed that Pines called her on the day McClendon was arrested and told her the incident was "a prank gone really bad." In an affidavit, Pines stated that he told McClendon's wife that it appeared that the incident was "a prank that had gone bad" and that, by saying this, he meant that it appeared that McClendon had played a prank on Harper by moving the van.

         The day after McClendon was arrested, a detective obtained an arrest warrant for McClendon. As a result of the arrest, McClendon spent several nights in jail before he was released on bond. The DeKalb County District Attorney's office reviewed the case and decided not to prosecute McClendon and dismissed the charge. MARTA decided to terminate McClendon for stealing MARTA property, lying to management, and otherwise violating MARTA's code of ethics and standards of conduct. His union negotiated with MARTA, which agreed to allow him to retire in lieu of termination, conditioned on his agreement to present his notice of retirement by November 18, 2014 and to refrain from initiating any grievance or legal proceeding concerning severance of his employment with MARTA. McClendon submitted his notice to MARTA on that date. He then contacted the benefits provider, Zenith American Solutions, Inc., and an agent told him that he could take early retirement immediately or get full retirement with increased benefits if he waited until 2016 to retire. McClendon chose to delay his pension, and, according to him, he submitted all required documents. Months later, MARTA changed the end of his employment to termination for cause, because he did not timely apply for retirement as required by their agreement. According to McClendon, his pension benefit was greatly reduced as a result.

         1. McClendon contends that the trial court erred in granting the defendants' motion for summary judgment on his claims for ...


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