      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
