MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                            May 31 2016, 10:15 am
this Memorandum Decision shall not be
                                                                       CLERK
regarded as precedent or cited before any                          Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew R. Lemme                                         Alan L. McLaughlin
New Albany, Indiana                                      Brian L. Mosby
                                                         Mark J. Plantan
                                                         Littler Mendelson, P.C.
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jennifer Ansari,                                         May 31, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         29A05-1509-PL-1435
        v.                                               Appeal from the Hamilton
                                                         Superior Court
Sirius Satellite Radio (Sirius                           The Honorable Steven R. Nation,
XM),                                                     Judge
Appellee-Defendant.                                      Trial Court Cause No.
                                                         29D01-1306-PL-5259



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A05-1509-PL-1435 | May 31, 2016        Page 1 of 9
                                   STATEMENT OF THE CASE

[1]   Appellant-Plaintiff, Jennifer Ansari (Ansari), appeals the trial court’s summary

      judgment in favor of Appellee-Defendant, Sirius XM Radio, Inc. (Sirius XM),

      concluding that Sirius XM is not liable to Ansari under respondeat superior for

      certain communications sent to her by Sirius XM’s employee.


[2]   We affirm.


                                                    ISSUE

[3]   Ansari raises one issue on appeal, which we restate as: Whether the trial court

      erred by concluding that there is no genuine issue of material fact that Sirius

      XM’s employee acted outside the scope of his employment when he sent Ansari

      certain messages.


                           FACTS AND PROCEDURAL HISTORY

[4]   Aaron Snow (Snow) began working as a Sourcing Manager for Sirius XM,

      effective June 5, 2006. In his position, Snow worked with manufacturers and

      suppliers; he did not interact with Sirius XM subscribers. During his work

      hours, Snow sent numerous hostile communications by text and email to

      Ansari from his personal cellphone. Ansari and Snow have a minor child

      together and, at the time of the communications, were engaged in an ongoing

      custody litigation.


[5]   On June 10, 2013, Ansari filed a Complaint against Sirius XM, seeking to hold

      Sirius XM liable for Snow’s ongoing harassment based on a theory of respondeat

      Court of Appeals of Indiana | Memorandum Decision 29A05-1509-PL-1435 | May 31, 2016   Page 2 of 9
      superior. On July 29, 2013, Ansari filed an “Amended Complaint for Employer

      Liability.” (Appellee’s App. p. 13). On December 23, 2014, Sirius XM filed its

      motion for summary judgment, to which Ansari responded on March 5, 2015.

      After a hearing on April 8, 2015, the trial court granted Sirius XM’s motion on

      June 1, 2015, concluding in pertinent part that:

              [Ansari] concedes that [Sirius XM] is not in the business of
              “transmitting harassing communications for profit.” The
              designated evidence shows the employee’s acts at issue were his
              own initiative, and he had no intention to perform a service for
              the employer while engaged in his acts. Further, the designated
              evidence shows that communications fall outside the scope of
              Snow’s employment because they did not advance [Sirius XM’s]
              business interest or relate to employee’s job duties. Unlike Doe
              [v. Lafayette Sch. Corp., 846 N.E.2d 691 (Ind. Ct. App. 2006)], the
              designated evidence shows that [Sirius XM] did not even own the
              phone that was used for the phone calls and/or texts.


      (Appellant’s App. p. 10). Ansari filed a motion to correct error on June 30,

      2015, which was denied by the trial court on August 14, 2015.


[6]   Ansari now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION


                                            I. Standard of Review


[7]   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). “A fact is material if its resolution would affect the


      Court of Appeals of Indiana | Memorandum Decision 29A05-1509-PL-1435 | May 31, 2016   Page 3 of 9
      outcome of the case, and an issue is genuine if a trier of fact is required to

      resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts

      support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756,

      761 (Ind. 2009).


[8]   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. First Farmers Bank & Trust Co. v. Whorley,

      891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. 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. Id. at 607-08. In doing so, we

      consider all of the designated evidence in the light most favorable to the non-

      moving party. Id. at 608. The party appealing the grant of summary judgment

      has the burden of persuading this court that the trial court’s ruling was

      improper. Id. When the defendant is the moving party, the defendant must

      show that the undisputed facts negate at least one element of the plaintiff’s

      cause of action or that the defendant has a factually unchallenged affirmative

      defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary

      judgment must be reversed if the record discloses an incorrect application of the

      law to the facts. Id.


[9]   We observe that in the present case, the trial court entered findings of fact and

      conclusions of law in support of its judgment. Special findings are not required

      in summary judgment proceedings and are not binding on appeal.

      AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

      Court of Appeals of Indiana | Memorandum Decision 29A05-1509-PL-1435 | May 31, 2016   Page 4 of 9
       App. 2004). However, such findings offer this court valuable insight into the

       trial court’s rationale and facilitate appellate review. Id.


                                                   II. Analysis


[10]   Ansari contends that the trial court erred in granting summary judgment to

       Sirius XM after concluding that Snow’s communications fell outside the scope

       of employment. She asserts that “Sirius XM had been notified of its employee’s

       actions of repeatedly harassing [Ansari] by telephone and no action” was taken

       to make Snow stop. (Appellant’s Br. p. 2). Ansari maintains that the inaction

       of Sirius XM, with actual knowledge of Snow’s conduct, “raises a question of

       fact for a jury of whether the inaction . . . constitutes authorization under

       respondeat superior liability[.]” (Appellant’s App. p. 3).


[11]   Under the doctrine of respondeat superior, an employer, who is not liable because

       of his own acts, can be held liable “for the wrongful acts of his employee which

       are committed within the scope of employment.” Southport Little League v.

       Vaughan, 734 N.E.2d 261, 268 (Ind. Ct. App. 2000), trans. denied. An employee

       is acting within the scope of his employment when he is acting, at least in part,

       to further the interests of his employer. City of Fort Wayne v. Moore, 706 N.E.2d

       604, 607 (Ind. Ct. App. 1999), trans. denied. When an employee acts partially in

       self-interest but is still “partially serving his employer’s interests,” liability will

       attach. Id. However, simply because an act could not have occurred without

       access to the employer’s facilities does not bring it within the scope of

       employment. Id.


       Court of Appeals of Indiana | Memorandum Decision 29A05-1509-PL-1435 | May 31, 2016   Page 5 of 9
[12]   Additionally, while our courts have established that an employer can be

       vicariously liable for the criminal acts of an employee, the determination

       depends upon whether the employee’s actions were at least for a time

       authorized by the employer. Doe v. Lafayette School Corp., 846 N.E.2d 691, 702

       (Ind. Ct. App. 2006) abrogated on other grounds by State Farm Mut. Auto Ins. Co. v.

       Jakupko, 881 N.E.2d 654 (Ind. 2008). If it is determined that none of the

       employee’s acts were authorized, there is no respondeat superior liability. Id.

       Furthermore, acts for which the employer is not responsible are those done “on

       the employee’s own initiative, [] with no intention to perform it as part of or

       incident to the service for which he is employed.” Id. (quoting City of Fort

       Wayne, 706 N.E.2d at 607).


[13]   In Doe, the plaintiff’s teacher obtained student email addresses to communicate

       with them regarding school matters. Doe, 846 N.E.2d at 695. Although the

       teacher used his personal email address to communicate with the plaintiff about

       personal matters, he still sent the emails by way of a laptop provided by the

       school. Id. Some of these emails were sent during school hours. Id. After a

       while, the interaction between the teacher and the plaintiff took on a romantic

       tone and the email exchanges became sexually charged. Id. A concern was

       raised by the school that the teacher was “being too friendly” with students, and

       the teacher promised to be more careful about his contact with students. Id.

       The school did not investigate further, even though the plaintiff’s name was

       specifically raised. Id. Two months later, the email exchanges led to two

       sexual encounters at the teacher’s residence. Id. The plaintiff sued both the

       Court of Appeals of Indiana | Memorandum Decision 29A05-1509-PL-1435 | May 31, 2016   Page 6 of 9
       teacher and the school, arguing the school was responsible under a theory of

       respondeat superior because the teacher’s use of school equipment and some of

       his activity having occurred during school hours. Id. We rejected the

       argument, concluding that “simply because the teacher used the school’s

       equipment and facilities to initiate a relationship with the plaintiff, his acts did

       not necessarily fall within his scope of employment. Id. at 702. We held that

       the teacher “on his own initiative and unrelated to any school function

       instigated an intimate relationship with Doe” and “his actions were not incident

       to any service provided by [the school], but rather were fueled entirely by self-

       interest in a romantic relationship with” the plaintiff. Id.


[14]   We reach the same conclusion under the facts before us. The designated

       evidence reflects that Sirius XM employed Snow to control costs related to the

       sourcing of components used in Sirius XM’s business. Snow negotiated

       contracts and visited supplier sites. He communicated with Sirius XM

       employees and suppliers but did not interact with Sirius XM subscribers.

       During work hours, Snow sent messages from his personal cellphone 1 to Ansari

       which contained insults and taunting references to the ongoing custody battle

       between him and Ansari. These communications were not incident to any

       service provided to Sirius XM and were not pertinent or subordinate to




       1
        The record includes references that Snow might have used his personal cellphone to not only conduct
       personal communications, but also to make some business calls. However, in line with Doe, we find the
       combined nature of calls made from Snow’s personal device not decisive of the issue before us. See Doe, 846
       N.E.2d at 702.

       Court of Appeals of Indiana | Memorandum Decision 29A05-1509-PL-1435 | May 31, 2016              Page 7 of 9
       controlling costs and monitoring relationships with Sirius XM suppliers.

       Rather, Snow engaged in personal communication for a personal purpose.

       Although Ansari formulates the generalized allegation that she “notified Sirius

       [XM] of the employee conduct, . . . and Sirius XM allowed it to continue,” she

       fails to provide us with actual evidence to establish that Sirius XM was aware of

       the “hundreds of harassing communications from [Snow’s] workplace.”

       (Appellant’s Br. pp. 5, 6).


[15]   Accordingly, as there is no connection between Snow’s conduct and his

       employment, the continued harassment falls outside the scope of his

       employment and did not further Sirius XM’s business. See Stropes v. Heritage

       House Children’s Center of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind. 1989) (“[A]n

       employee’s wrongful act may still fall within the scope of his employment if his

       purpose was, to an appreciable extent, to further his employer’s business, even

       if the act was predominantly motivated by an intention to benefit the employee

       himself.”). Rather, as Snow, on his own initiative and unrelated to any

       business function, sent harassing communications to Ansari, his actions were

       fueled entirely by his own self-interest and no respondeat superior is established.

       We affirm the trial court’s summary judgment.


                                               CONCLUSION

[16]   Based on the foregoing, we conclude that there is no genuine issue of material

       fact that Sirius XM’s employee acted outside the scope of his employment when




       Court of Appeals of Indiana | Memorandum Decision 29A05-1509-PL-1435 | May 31, 2016   Page 8 of 9
       he sent Ansari certain messages and therefore respondeat superior is not

       applicable.


[17]   Affirmed.


[18]   Kirsch, J. and Pyle, J. concur




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