Lindal Hairston v. City of Gary Police Civil Service Commission (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 23 2017, 7:18 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Scott King Rinzer Williams III
Russell W. Brown, Jr. Gary, Indiana
Scott King Group
Merrillville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Lindal Hairston, August 23, 2017
Appellant-Plaintiff, Court of Appeals Case No.
45A03-1704-MI-808
v. Appeal from the
Lake Superior Court
City of Gary Police Civil Service The Honorable
Commission, Diane Kavadias Schneider, Judge
Appellee-Defendant. Trial Court Cause No.
45D11-1512-MI-73

Kirsch, Judge.

[1] Lindal Hairston (“Hairston”) appeals the trial court’s order that denied his

motion for summary judgment, thereby affirming the City of Gary Police Civil

Service Commission’s (“the Commission”) decision to terminate Hairston.

Court of Appeals of Indiana | Memorandum Decision 45A03-1704-MI-808 | August 23, 2017 Page 1 of 8
 Hairston raises the following restated issue for our review on appeal: whether

the Commission’s decision to terminate Hairston was arbitrary and capricious

or not in accordance with the law.

[2] We affirm.

Facts and Procedural History
[3] On December 22, 2010, Hairston, who at that time was a Sergeant with the

City of Gary Police Department, pulled over a vehicle driven by Russell

Thomas (“Thomas”) in Gary, Indiana. During the stop of the vehicle, Thomas

was arrested. As a result of this encounter between Thomas and Hairston,

Thomas filed a complaint with the City of Gary Police Department Internal

Affairs Division (“Internal Affairs”) against Hairston on January 7, 2011,

alleging police harassment. Based on this Internal Affairs complaint, the City

of Gary Police Department, through its Chief of Police, filed a Verified

Complaint with the Commission against Hairston on April 12, 2011. On

August 30, 2011, the City of Gary Police Department withdrew its Verified

Complaint. After filing his complaint, Thomas regularly inquired to the City of

Gary Police Department about the status of his complaint, but due to “multiple

turnovers in the Police Department, his case was lost or out on hold in the

system.” Appellant’s App. Vol. III at 226.

[4] On September 22, 2014, Thomas filed his own Verified Complaint against

Hairston with the Commission alleging misconduct. Attorney Daryl D. Jones

(“Hearing Officer”) was assigned to be the Hearing Officer on the matter, and a

Court of Appeals of Indiana | Memorandum Decision 45A03-1704-MI-808 | August 23, 2017 Page 2 of 8
 hearing was held on the complaint on January 22, 2015. Evidence and

testimony was presented, and after considering this evidence, the Hearing

Officer filed his “Recommended Finding and Determination” on June 22,

2015. Id. at 225-26. The Hearing Officer found that Hairston had violated the

standard operating procedures of the City of Gary Police Department and

found Thomas’s complaint to be timely. The Hearing Officer recommended

that Hairston be suspended without pay for fourteen days.

[5] On September 3, 2015, the Commission voted to modify the Hearing Officer’s

recommendation from a fourteen-day suspension to termination of Hairston’s

employment. Hairston filed a notice of appeal of the Commission’s decision,

and his request for an appeal was granted. On December 8, 2015, the

Commission voted to sustain the decision to terminate Hairston’s employment.

On December 22, 2015, Hairston filed his “Verified Appeal from a Decision of

the City of Gary Civil Service Commission” with the Lake Superior Court.

Appellant’s App. Vol. II at 10. On October 11, 2016, Hairston filed a motion for

summary judgment. No hearing was held on the motion, and on March 16,

2017, the trial court issued its order denying Hairston’s motion for summary

judgment, affirming the decision of the Commission to terminate Hairston’s

employment, and also finding that the Commission’s decision was not arbitrary

and capricious. Hairston now appeals.

Discussion and Decision
[6] When reviewing the grant of summary judgment, our standard of review is the

same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d
Court of Appeals of Indiana | Memorandum Decision 45A03-1704-MI-808 | August 23, 2017 Page 3 of 8
 1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of

Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We stand in

the shoes of the trial court and apply a de novo standard of review. Id. (citing

Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)). Our

review of a summary judgment motion is limited to those materials designated

to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d

461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is appropriate

only where the designated evidence shows there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law.

T.R. 56(C). We view the pleadings and designated materials in the light most

favorable to the non-moving party. Id. Additionally, all facts and reasonable

inferences from those facts are construed in favor of the non-moving party. Id.

(citing Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct.

App. 2005), trans. denied). A trial court’s grant of summary judgment is clothed

with a presumption of validity, and the party who lost in the trial court has the

burden of demonstrating that the grant of summary judgment was erroneous.

FLM, 973 N.E.2d at 1173. We will affirm upon any theory or basis supported

by the designated materials. Id.

[7] Hairston argues that the trial court erred in denying his motion for summary

judgment because the Commission’s decision to terminate him was arbitrary

and capricious and not in accordance with the law. Specifically, Hairston

contends that Thomas did not file a timely complaint under the Commission’s

Rules of Procedure, and because Thomas’s complaint violated time constraints,

Court of Appeals of Indiana | Memorandum Decision 45A03-1704-MI-808 | August 23, 2017 Page 4 of 8
 the complaint was barred by the Commission’s Rules of Procedure. He asserts

that the Commission’s decision not to dismiss Thomas’s complaint was

“patently unreasonable and lacked a basis which might lead a reasonable

person to the same conclusion.” Appellant’s Br. at 12. Hairston further claims

that, in making the decision to terminate him, the Commission disregarded the

law and acted not in accordance with the law. Therefore, the trial court’s order

to affirm the Commission’s decision should be reversed.

[8] Judicial review of administrative decisions is very limited. Winters v. City of

Evansville, 29 N.E.3d 773, 778 (Ind. Ct. App. 2015) (citing City of Indianapolis v.

Woods, 703 N.E.2d 1087, 1090 (Ind. Ct. App. 1998), trans. denied), trans. denied.

“Discretionary decisions of administrative bodies, including those of police

merit commissions, are entitled to deference absent a showing that the decision

was arbitrary and capricious, or an abuse of discretion, or otherwise not in

accordance with law.” Id. Review of administrative decisions is limited to

determining whether the administrative body adhered to proper legal procedure

and made a finding based upon substantial evidence in accordance with

appropriate constitutional and statutory provisions. Id. “The reviewing court

may not substitute its judgment for that of the administrative body or modify a

penalty imposed by that body in a disciplinary action, without a showing that

such action was arbitrary and capricious.” Id.

[9] The party challenging the administrative decision has the burden of proving

that the decision was arbitrary and capricious. Id. An arbitrary and capricious

decision is one which is patently unreasonable, made without consideration of

Court of Appeals of Indiana | Memorandum Decision 45A03-1704-MI-808 | August 23, 2017 Page 5 of 8
 the facts and in total disregard of the circumstances, and lacks any basis which

might lead a reasonable person to the same conclusion. Id. Substantial

evidence is that relevant evidence which a reasonable mind might accept as

adequate to support a conclusion. Id.

[10] Pursuant to the Commission’s Rule of Procedure Rule 7(A):

Except as otherwise provided, disciplinary proceedings must be
commenced within one-hundred and twenty (120) days from the
date the alleged misconduct is discovered. Disciplinary
proceedings against a police officer are barred after the expiration
of two (2) years from the date of the occurrence of the alleged
misconduct, unless the misconduct would, if proved in a court of
law, constitute a felony or a Class A misdemeanor in which case
disciplinary proceedings may be commenced at any time.

Appellant’s App. Vol. II at 51. In the Hearing Officer’s “Recommended Finding

and Determination,” he found that:

Although, the case was heard beyond 2 years from the date of the
occurrence of the alleged misconduct, [Thomas] did take the
proper steps to commence disciplinary proceedings against
[Hairston] within the 120 days from the date the alleged
misconduct was discovered. He also continued to request
updates, and discovery for his case throughout the process. Due
to multiple turnovers in the Police Department, his case was lost
or out on hold in the system.

Appellant’s App. Vol. III at 226.

[11] The evidence presented at the hearing showed that the incident from which

Thomas’s allegations of misconduct by Hairston stemmed occurred on

Court of Appeals of Indiana | Memorandum Decision 45A03-1704-MI-808 | August 23, 2017 Page 6 of 8
 December 22, 2010. Thomas filed his complaint alleging police harassment

against Hairston with the City of Gary Police Department Internal Affairs

Division on January 7, 2011. The City of Gary Police Department filed a

Verified Complaint with the Commission against Hairston on April 12, 2011.

On August 30, 2011, unbeknownst to Thomas, the City of Gary Police

Department withdrew its Verified Complaint with the Commission and never

notified Thomas of this withdrawal. After filing his complaint, Thomas

regularly inquired of the City of Gary Police Department about the status of his

complaint, but due to “multiple turnovers in the Police Department, his case

was lost or out on hold in the system.” Id. On September 22, 2014, Thomas

filed his own Verified Complaint with the Commission alleging misconduct by

Hairston. The Hearing Officer found Thomas’s complaint to be timely filed,

and the Commission affirmed this determination.

[12] The evidence supported the Commission’s decision to affirm the Hearing

Officer’s determination. The incident precipitating these proceedings occurred

on December 22, 2010. Thomas promptly filed a complaint with the City of

Gary Police Department Internal Affairs Division on January 7, 2011, and the

City of Gary Police Department filed a Verified Complaint with the

Commission against Hairston on April 12, 2011, which dates were all within

the 120 days required by the Commission’s Rules. Although the City of Gary

Police Department’s complaint was later withdrawn from the Commission,

Thomas was never notified, and he, thereafter, consistently inquired as to the

status of the complaint, but was still not informed that the complaint had been

Court of Appeals of Indiana | Memorandum Decision 45A03-1704-MI-808 | August 23, 2017 Page 7 of 8
 withdrawn. Therefore, although Thomas’s later complaint was not filed until

well after the 120-day time period set out in the Commission’s Rules, it was not

through his own lack of diligence. We find that the evidence supported the

determination that Thomas’s complaint was timely filed and that the

Commission’s decision was not arbitrary and capricious and was in accordance

with the law. Accordingly, we conclude that the trial court properly denied

Hairston’s motion for summary judgment.1

[13] Affirmed.

Najam, J., and Brown, J., concur.

1
To the extent that Hairston raises an argument as to the merits of the Commission’s decision to terminate
and whether it was arbitrary and capricious, we conclude that he has waived any such argument for failure to
make a cogent argument. See Ind. Appellate Rule 46(A)(8)(a); Countrywide Home Loans, Inc. v. Holland, 993
N.E.2d 184, 186 n.2 (Ind. Ct. App. 2013).

Court of Appeals of Indiana | Memorandum Decision 45A03-1704-MI-808 | August 23, 2017 Page 8 of 8