GOBEIL, J., COOMER and HODGES, JJ.
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
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).
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
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.
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
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
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.
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.
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.
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
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.
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. The detective deposed that the decision to
arrest McClendon was his decision, along with the
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.
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.
McClendon contends that the trial court erred in granting the
defendants' motion for summary judgment on his claims for