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Bah v. Mac's Convenience Stores, LLC

Court of Appeals of Indiana

June 30, 2015

Tikidanke Bah, Appellant-Plaintiff,
v.
Mac's Convenience Stores, LLC d/b/a Circle K and David Ruffin, Appellees-Defendants

Page 540

Appeal from the Marion Circuit Court. The Honorable Louis Rosenberg, Judge. Case No. 49C01-1004-CT-16980.

ATTORNEY FOR APPELLANT: Swaray Edward Conteh, The Law Office of Swaray Conteh, LLC, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEES: Craig M. Borowski, Rozlyn M. Fulgoni-Britton, Faegre Baker Daniels LLP, Indianapolis, Indiana.

Crone, Judge. Pyle, J., concurs. Brown, J., dissents with opinion. Brown, Judge, concurring in part and dissenting in part.

OPINION

Page 541

Crone, Judge.

Case Summary

[¶1] Tikidanke Bah was a store manager for Mac's Convenience Stores, LLC d/b/a Circle K (" Circle K" ). Bah's supervisor, David Ruffin, suspected that she had stolen money from the store, which she denied. Ruffin terminated Bah's employment and contacted the police. The prosecutor charged Bah with theft. After a trial, the jury found her not guilty.

[¶2] Bah filed a complaint against Circle K and Ruffin (collectively " Appellees" ) asserting eight counts: false imprisonment, two counts of defamation, malicious prosecution, negligent supervision, vicarious liability, intentional infliction of emotional distress, and negligent infliction of emotional distress. Appellees filed a motion for summary judgment as to all eight counts as well as a motion to strike certain evidence designated by Bah.

[¶3] The trial court granted Appellees' motion to strike and motion for summary judgment. Bah filed a motion to correct error asserting that the trial court erred in granting the motion to strike and the motion for summary judgment. The trial court denied Bah's motion to correct error.

[¶4] On appeal, Bah first contends that the trial court erred in granting Appellees' motion to strike on procedural and substantive grounds. We conclude that Bah has waived these arguments because she failed to object on either basis and in fact consented to the procedure.

[¶5] Bah also contends that the trial court erred in granting Appellees' summary judgment motion. Bah has withdrawn her negligent supervision claim, and we conclude that her negligent infliction of emotional distress claim fails as a matter of law; therefore, we affirm the trial court's grant of summary judgment in Appellees' favor on those claims. We also affirm the trial court's grant of summary judgment on Bah's malicious prosecution claim. But we conclude that Appellees are not entitled to summary judgment on Bah's remaining claims based on defenses requiring state-of-mind and credibility determinations. Therefore, we affirm in

Page 542

part, reverse in part, and remand for further proceedings.

Facts and Procedural History

[¶6] The relevant facts most favorable to Bah as the nonmoving party on summary judgment are as follows. In 2006, Bah started working for Circle K as a cashier. In 2007, she was promoted to manager of a store at 82nd Street and Allisonville Road in Indianapolis. Bah reported to Ruffin, the market manager. In 2008, over Bah's objection, Ruffin transferred her to a smaller store at 86th Street and Ditch Road.

[¶7] In June 2008, Ruffin received a job performance evaluation from Circle K stating that he needed " significant improvement" in implementing " loss prevention techniques." Appellant's App. at 126. Around the beginning of September 2008, Ruffin asked Bah if she would resign because he thought that Circle K was going to close her store. Bah said that she would prefer to assist other managers with their stores. Ruffin said that Bah " should instead resign and that the option [she] proposed was not viable." Id. at 108 (Bah's affidavit).

[¶8] At that time, Bah was having problems with some of her employees " error correcting cigarettes" and, she believed, " stealing money." Id. Bah informed Ruffin and asked him to come to her store. Ruffin refused. Since Bah " needed immediate action and [Ruffin] was not helping, [she] bypassed him and contacted [Ruffin's] boss" on September 12, 2008. Id.

[¶9] Ruffin received weekly sales reports from the stores that he managed and reviewed them for financial " irregularities that required investigation." Appellees' App. at 4 (Ruffin's affidavit). In mid-September 2008, Ruffin " noticed a negative number for grocery/C-store sales" in a report from Bah's store, which was " very unusual." Id. He also " found that refunds totaling $1,500 were issued" at Bah's store on September 12. Id.

[¶10] On September 18, Ruffin went to Bah's store to investigate, but she was not there. He looked for various " store financial reports" for September 12 but was unable to locate them, which he found " odd." Id. [1] Ruffin used the store's cash register to print the cashier's report from September 12. " Each store employee who has access to the cash register and store funds has a unique cashier number that they [sic] are not to share with others." Id. at 5. Sometimes, however, Bah " would give her code to the cashiers" to allow them to unlock the register if she was unavailable. Appellant's App. at 109 (Bah's affidavit). Ruffin also " had the codes for everyone in the store." Id. The cashier's report indicated that Bah's

cashier number was used to enter a total of $1,500.00 in refunds for non-tax grocery items on September 12, 2008, between 5:53 a.m. and 6:07 a.m., and [Bah] was one of the employees on duty at this time. There was no grocery item for sale in the store at the time that cost $1,500.00. The majority of the items for sale in the store are grocery items, drinks, food items, and other miscellaneous goods that are far less expensive.

Appellees' App. at 5 (Ruffin's affidavit).

[¶11] The store's cash register never had $1500 in it. Id. at 22 (Bah's deposition). Refunding that amount would require opening the safe, and Bah was the only store-level employee with a key to the safe. Id. Ruffin also had a key. Id. Ruffin

Page 543

reviewed the store's bank deposit slip from September 12, which was for $2047. According to Ruffin, this was " a much smaller amount than the store's average deposits." Id. at 5 (Ruffin's affidavit). According to Bah, this amount was " normal" for the store. Appellant's App. at 109 (Bah's affidavit). Notably, the designated evidence does not indicate that Ruffin (or anyone else) determined that $1500 had actually been taken from the store's safe.

[¶12] Ruffin also reviewed " recorded footage from security video cameras that were positioned around the store." Appellees' App. at 4. He discovered a ten-minute period " when the camera was not recording," due to either a power surge or someone pressing " the camera's reset button, which is located in the store office." Id. at 5. " The camera footage showed that [Bah] had entered the office immediately before the camera stopped recording." Id. [2]

[¶13] Ruffin met with Bah and asked her " whether she knew why the grocery/C-store sales results were negative, and she said no." Id. at 6. He also asked her " about the $1,500.00 in refunds that were done using her cashier number, and she denied any involvement in the refunds." Id. Ruffin terminated Bah's employment.

[¶14] " It is Circle K's practice when discovering suspected theft of this level from its stores to report the suspected theft to the police." Id. Ruffin contacted the Indianapolis Metropolitan Police Department (" IMPD" ) and told them what he had found during his investigation. Ruffin was later " contacted by IMPD and the prosecutor and asked for additional information." Id. He " cooperated with the IMPD and prosecutor's office and answered their questions and requests for information[.]" Id.

[¶15] The prosecutor charged Bah with theft. She received a warrant in the mail instructing her to report to the City-County Building for a mug shot and fingerprinting, which she did. She was not arrested or jailed pending trial. In March 2010, a jury found her not guilty of theft.

[¶16] In April 2010, Bah filed a complaint against Appellees asserting eight counts: false imprisonment, two counts of defamation (slander per se and slander per quod),[3] malicious prosecution, negligent supervision, vicarious liability/respondeat superior, intentional infliction of emotional distress, and negligent infliction of emotional distress. Bah's complaint contains the following allegations:

8. Slightly more than two (2) months after Plaintiff began managing the Ditch Road Store, [Ruffin] falsely accused Plaintiff of stealing $1500 from the Ditch Road Store sales for September 11,

Page 544

2008. Ruffin informed individuals with the corporate office of Circle K and others not associated with management of Circle K and others not associated with Circle K that Plaintiff stole money from the company.
9. On September 18, 2008, Ruffin reported to Officer Raymond Robinson, Jr. of the Indianapolis Metropolitan Police Department (IMPD) that on September 12, 2008, Plaintiff turned off an in-store security camera for approximately thirteen (13) minutes and stole money from the store. Around the same [sic] Ruffin also told detective Janice Aikman of IMPD that Plaintiff rebooted the security camera system and logged into the registers and performed three (3) refunds totaling $1500 and then took the money from the company safe for personal use. Ruffin further ...

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