      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                 FILED
      regarded as precedent or cited before any                         Jul 13 2017, 9:11 am
      court except for the purpose of establishing
                                                                            CLERK
      the defense of res judicata, collateral                           Indiana Supreme Court
                                                                           Court of Appeals
      estoppel, or the law of the case.                                      and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Donald E. Morgan                                         Michael D. Head
      Elise C.L. Bowling                                       Reichel Stohry L.L.P.
      Office of Corporation Counsel                            Indianapolis, Indiana
      Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      City of Indianapolis,                                    July 13, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1612-CT-2898
              v.                                               Appeal from the Marion Superior
                                                               Court
      Rosalynn West,                                           The Honorable Thomas J. Carroll,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               49D06-0803-CT-10163



      Mathias, Judge.


[1]   The Marion Superior Court ruled that genuine issues of material fact existed as

      to whether a police detective acted within the scope of her employment when

      she forwarded an e-mail concerning the internal governance of her church to

      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017      Page 1 of 16
      other church members using her work-issued computer and e-mail address

      while on duty. From that ruling, her employer now takes this interlocutory

      appeal, claiming it was entitled to judgment as a matter of law.


[2]   We reverse.


                                 Facts and Procedural Posture
[3]   In October 2007, Rosalynn West (“West”), Betty Wadlington (“Wadlington”),

      and Jeanette Larkins (“Larkins”) were all members of Mt. Olive Missionary

      Baptist Church in Indianapolis, Indiana. West headed the church’s Christian

      Education Committee and served on its Pastoral Search Committee.


[4]   Wadlington thought West unsuited for those positions and sent a letter to the

      church’s governing bodies urging them to remove her:


              I hesitated to write this at first, and then something in my spirit
              would not let it rest. I need to reveal this information to you, so
              that, hopefully, you will make spirit-led decisions in this regard.

              . . . It may or may not surprise you to know that Sis. West’s
              behavior has been the subject of much discussion among the
              membership lately, and everyone has the same opinion - SHE
              NEEDS TO BE DEALT WITH!!!

              This is a woman who is the head of Christian Education and on
              the Pastoral Search Committee - yet her actions/words have been
              anything but Christ-like. . . .

              I used to be on the Christian Education Committee - I
              respectfully stopped attending the meetings after I witnessed Sis.
              West SCREAM at an elder member of our church who in no
              way deserved such a level of disrespect. . . .

      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017   Page 2 of 16
              Sis. West made it no secret that she “could not stand” [a former
              interim pastor]. She provoked him in to the behavior he
              displayed. . . . She had to know that if she “attacked” his child
              and wife that he was going to respond - which was exactly what
              she was hoping for. . . .

              Removing Sis. West from chairmanship of the CHRISTIAN
              Education Committee is a change that needs to be made.
              Removing her from the pastoral search committee is a change
              that needs to be made. . . .

              You don’t need to respond to me and this memo - but you do
              need to respond to the actions of Sis. West - and do it soon or I
              believe our church will live to regret it.

              Sincerely, . . . .


      Appellant’s App. pp. 23-24 (sic passim). On Sunday, October 14, 2007,

      Wadlington e-mailed a copy of her letter to Larkins and two other church

      members so that “if [they] hear[d] about this situation again - [they’d] know

      what’s going down.” Id. at 22.


[5]   At the time, Larkins was a detective employed by the Indianapolis

      Metropolitan Police Department (“IMPD”) and the City of Indianapolis (“the

      City”) to investigate sex crimes, specifically sexual assault on victims at least

      fourteen years old. With IMPD1 approval, she had also occasionally worked as

      a part-time security guard for the church since 1996. Wadlington’s e-mail was




      1
        Before City and county law enforcement were consolidated in 2007, creating IMPD, Larkins was employed
      in the same position by the now-defunct Marion County Sheriff’s Department. For the sake of simplicity, we
      refer only to IMPD.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017          Page 3 of 16
      sent to Larkins’s “indygov.org” e-mail address, a City-issued address for City

      business, which Larkins could access only from her City-issued desktop

      computer at her office. Larkins, therefore, did not receive Wadlington’s e-mail

      until she went to work the next day, Monday, October 15, 2007. That evening,

      Larkins read the e-mail and forwarded it without comment to eighty-eight

      church members and one former member. None were City employees.


[6]   In February 2008, West sued Larkins, Wadlington, and the City for defamation

      and invasion of privacy. By early 2015, Larkins and Wadlington had declared

      bankruptcy and were dismissed from the suit in February and March of that

      year, respectively. The City as the sole remaining defendant moved for

      summary judgment on April 19, 2016. The trial court denied the City’s motion

      on October 26, 2016, without entering findings or conclusions. The trial court

      certified its ruling for interlocutory appeal on November 28, 2016. We accepted

      the appeal on January 27, 2017.


                                         Standard of Review
[7]   Summary judgment is appropriate where there are no genuine issues of material

      fact and the movant is entitled to judgment as a matter of law. Ind. Trial Rule

      56(C); Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). The

      movant’s burden is to show that its designated evidence, with all conflicts,

      doubts, and reasonable inferences resolved in the nonmovant’s favor,

      affirmatively negates the nonmovant’s claim. Hughley v. State, 15 N.E.3d 1000,

      1003 (Ind. 2014). The burden then shifts to the nonmovant to show an issue of

      fact affecting the outcome of the case that requires resolution by the fact-finder.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017   Page 4 of 16
      Id. We review the trial court’s ruling de novo as a question of law, taking care

      that the nonmovant is not improperly denied her day in court. Id. We may

      affirm denial of summary judgment on any theory or basis found in the

      designated evidence. Chang v. Purdue Univ., 985 N.E.2d 35, 45 (Ind. Ct. App.

      2013), trans. denied.


                                     Discussion and Decision
[8]   West seeks to hold the City vicariously liable for the torts of its employee

      Larkins under the doctrine of respondeat superior. The City responds that

      Larkins’s conduct in forwarding Wadlington’s e-mail was not done within the

      scope of her employment with the City as a matter of law, and that it is

      therefore entitled to judgment. West replies that whether Larkins was acting

      within the scope of her employment is a question of fact for the jury. We agree

      with the City.


                I. The Law of Respondeat Superior and Scope of Employment

[9]   Under the doctrine of respondeat superior, an employer may be held vicariously

      liable for the wrongful acts of its employee done within the scope of her

      employment. Barnett v. Clark, 889 N.E.2d 281, 283 (Ind. 2008). Generally, if the

      employee’s act was authorized by the employer, “incidental to the conduct

      authorized [by the employer,] or . . . to an appreciable extent[] further[ed] the

      employer’s business[,]” it was done within the scope of employment. Id.

      (citations omitted). If the act was instead part of “an independent course of

      conduct not intended by the employee to serve any purpose of the employer[,]”


      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017   Page 5 of 16
       it was outside the scope of employment. Id. at 284 (quotations and citation

       omitted).


[10]   However, many egregious or otherwise criminal acts, and many intentional

       torts generally, can hardly be said to be “authorized” by an employer or to be

       “intended . . . to serve [a] purpose of the employer.” Id. at 283-84. Nevertheless,

       that fact is not, in itself, a defense to vicarious liability. Warner Trucking, Inc. v.

       Carolina Cas. Ins. Co., 686 N.E.2d 102, 105 (Ind. 1997) (drunk driving); Stropes

       by Taylor v. Heritage House Childrens Cent., Inc., 547 N.E.2d 244 (Ind. 1989)

       (sexual assault); Southport Little League v. Vaughan, 734 N.E.2d 261 (Ind. Ct.

       App. 2000) (child molesting), trans. denied; Gomez v. Adams, 462 N.E.2d 212

       (Ind. Ct. App. 1984) (conversion). The employer is still liable for the natural

       and predictable consequences of the conduct of its business by its agents.2


[11]   For vicarious liability to attach in such cases, there must be “some minimal

       nexus between the employee's work and the facts of the case.” Harrison Cnty.




       2
         Not to say foreseeable consequences. “[W]hat is reasonably foreseeable in this context of respondeat superior
       is quite a different thing from the foreseeably unreasonable risk of harm that spells negligence. The foresight
       that should impel the prudent man to take precautions is not the same measure as that by which he should
       perceive the harm likely to flow from his long-run activity in spite of all reasonable precautions on his own part.”
       Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167, 171 (2d Cir. 1968) (Friendly, J.) (original alterations,
       quotations omitted; emphasis added). The necessity of this latter foresight, and the imposition of liability on
       the employer in such cases generally, flows not from traditional concepts of fault or efficient cost allocation,
       but from “a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for
       accidents which may fairly be said to be characteristic of its activities.” Id. (emphasis added); see also Carr v. Wm.
       C. Crowell Co., 171 P.2d 5, 7 (Cal. 1946) (Traynor, J.) (“The employer’s responsibility for the tortious conduct
       of his employee extends far beyond his actual or possible control over the conduct of the servant. It rests on
       the broader ground that every man who prefers to manage his affairs through others remains bound to so
       manage them that third persons are not injured by any breach of legal duty on the part of such others[] . . . .”
       (original quotations omitted)).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017                     Page 6 of 16
       Sherriff’s Dep’t v. Ayers, 70 N.E.3d 414, 418 (Ind. Ct. App. 2017), trans. denied.

       “[T]he focus must be on how the employment relates to the context in which

       the commission of the wrongful act arose,” Barnett, 889 N.E.2d at 285 (quoting

       Stropes, 547 N.E.2d at 249), and on the degree to which the employee’s acts

       were associated with her employment duties. Id. (discussing Stropes, 547 N.E.2d

       at 250); Gomez, 464 N.E.2d at 223 (no vicarious liability for acts “outside the

       line of [the servant’s] duty and not connected with his master’s business”). “The

       critical inquiry is not whether an employee violates his employer’s rules[,]” but

       whether the “employee’s act originated in activities so closely associated with

       the employment relationship as to fall within its scope.” Warner Trucking, 686

       N.E.2d at 105. If so, the act “further[s] [the] employer’s business” and may

       subject the employer to vicarious liability. Barnett, 889 N.E.2d at 285

       (discussing Stropes, 547 N.E.2d at 249-50).


[12]   In this inquiry, we ask how closely the acts complained of resemble acts the

       employee was employed to do, and whether the latter tend naturally or

       predictably to “melt[]” or “ripen[]” into the former, City of Fort Wayne v. Moore,

       706 N.E.2d 604, 608 (Ind. Ct. App. 1999), trans. denied, such that the employer

       may properly be charged with the resulting injury as characteristic of

       conducting its business through others. Where, for example, a children’s

       baseball league engaged an equipment manager to “fit[] youths with baseball

       uniforms behind locked doors in an equipment shed” as the “only adult

       present” and to “assist the youths in dressing and undressing,” the manager’s

       tortious acts of leering at and fondling the children closely resembled the acts of

       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017   Page 7 of 16
       supervision and fitting he was engaged to perform, and under the circumstances

       it was predictable that the latter will in some instances melt or ripen into the

       former. Vaughan, 734 N.E. at 266, 271 (affirming denial of defendant’s motions

       for summary judgment and for judgment on the evidence).3


[13]   Importantly, especially in the case before us, whether an act was within the

       scope of employment may be decided as a matter of law. In Konkle v. Henson,

       672 N.E.2d 450 (Ind. Ct. App. 1996), we opined that,


                [i]f some of the employee’s actions were authorized [but others
                were unauthorized], the question of whether the unauthorized
                acts were within the scope of employment is one for the jury.
                However, if none of the employee’s acts were authorized, there is
                no respondeat superior liability and summary judgment is proper.


       Id. at 457 (citations omitted). Barnett rejected this rule because it improperly

       focuses on the employer’s permission rather than on the association between

       the employee’s wrongful acts and the acts the employee is employed to do, the

       question at the heart of Stropes. See Barnett, 889 N.E.2d at 285. The question is

       not whether an unauthorized act followed an authorized act or vice versa, but




       3
         Further, where a home for severely handicapped children employs a nurse’s aide to “minister to residents in
       their beds, remove their clothing, and touch and handle their bodies,” the analysis and result are the same
       with respect to the aide’s sexual assault of a fourteen-year-old resident lacking “the verbal or motor skills
       necessary to perform . . . even the simplest tasks . . . .” Stropes, 547 N.E.2d at 245 (reversing grant of
       defendant’s motion for summary judgment). They are the same again where a private security company
       employs a guard to “request, receive[,] and retain personal identification while investigating disturbances or
       in effecting arrests” and to “retain confiscated personal effects until they were turned over” to supervisors
       with respect to the guard’s conversion of property seized from an arrestee. Gomez, 462 N.E.2d at 223
       (remanding for trial on employer’s vicarious liability).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017             Page 8 of 16
       whether a reasonable fact-finder could conclude that the “employee’s act

       originated in activities so closely associated with the employment relationship

       as to fall within its scope.” Warner Trucking, 686 N.E.2d at 105.


[14]   Judgment for the employer as a matter of law is appropriate where “there is not

       even a slight nexus” between the employee’s wrongful acts and her employment

       duties. Ayers, 70 N.E.3d at 418. It has long been settled that mere use of the

       employer’s facilities to commit a wrongful act, Louisville & Nashville R.R. Co. v.

       Gillen, 166 Ind. 321, 76 N.E. 1058, 1059 (1906) (sustaining defendant’s

       demurrer to complaint), cited in Gomez, 462 N.E.2d at 213, or mere access to a

       victim afforded by employment, Eagle Mach. Co., Inc. v. Am. Dist. Tel. Co., 127

       Ind. App. 403, 140 N.E.2d 756 (1957) (affirming directed verdict for

       defendant), discussed in Gomez, 462 N.E.2d at 224-25, do not without more

       present a sufficient nexus to merit decision by the fact-finder.


       II. Larkins Did Not Act Within the Scope of Her Employment As a Matter of
                                          Law

[15]   In this case, it is undisputed that Larkins was not authorized by her employer to

       send personal e-mails from her City e-mail address and City computer while on

       duty, nor to commit defamation by such means. Appellant’s App. pp. 126, 128

       (IMPD general order on employee computer use). However, that is not the end

       of the inquiry. The question, rather, is whether a reasonable jury could find that

       Larkins’s act of forwarding Wadlington’s e-mail was sufficiently associated

       with the acts Larkins was employed to perform as a sex-crimes detective, such



       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017   Page 9 of 16
       that the City may properly be charged with the resulting injury as characteristic

       of employing sex-crimes detectives. We conclude it could not.


[16]   The City’s designated evidence revealed that in October 2007, Larkins’s

       employment duties were to investigate incidents of sexual assault on victims age

       fourteen or older. Id. at 120. She would investigate cases as assigned by a

       sergeant or as necessary when called into the field. Id. Cases would originate

       from the reports of victims or uniformed officers at the scene, or from health

       care professionals, school staff, or the Department of Child Services. Id. Larkins

       worked from her office unless she was called into the field. Id. In the field,

       Larkins would seek out and interview witnesses, seek out and interview victims,

       canvass neighborhoods for information, and attempt to identify unknown

       persons. Id. At her office, Larkins’s use of her City-issued computer was a

       “crucial function” of her job. Id. at 122.


[17]   Larkins’s act of forwarding Wadlington’s e-mail about West’s role in the

       governance of their church did not appear to resemble or be associated in any

       degree with any Larkins was employed to perform as an IMPD sex-crimes

       detective in that it did not appear to be part of or incidental to an investigation

       into sexual assault. Larkins understood the recipients of her e-mail all to belong

       to a “women’s ministry” at the church, id. at 102, called “Women of Faith.” Id.

       at 131. Larkins never showed Wadlington’s e-mail to anyone at her office or

       discussed it with anyone there. Id. at 101. Nothing in Wadlington’s e-mail was

       related to or suggested sexual assault on the part of any church member or



       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017   Page 10 of 16
       against any church member. No church member was suggested to be under

       investigation for sexual assault or a witness in a sexual-assault investigation.


[18]   It is true that Larkins’s use of her City-issued computer and e-mail address was

       central to the performance of her employment duties. However, the mere use of

       her employer’s facilities did not bring her act within the scope of her

       employment. See Doe v. Lafayette Sch. Corp., 846 N.E.2d 691, 702 (Ind. Ct. App.

       2006) (use of employer’s computer and e-mail account), abrogated in nonrelevant

       part by State Farm Mut. Auto. Ins. Co. v. Jakupko, 881 N.E.2d 654 (Ind. 2008);4

       Gomez, 462 N.E.2d at 213 (generally). The question is not whether the

       employer’s facilities were used, but what the facilities were used for, and

       whether such use was sufficiently associated with the employee’s ordinary

       employment use. As the City suggests, “Modern offices could not function

       without [e-mail]. [To hold] employers vicariously liable for every e-mail their

       employees send from a work e-mail account — whether job-related or not —

       would risk an avalanche of litigation against employers without” serving the

       policies underlying vicarious liability. Appellant’s Br. at 14-15. We agree.


[19]   The City’s designations sufficiently discharged its initial burden as a summary

       judgment movant by showing that Larkins’s forwarding Wadlington’s e-mail




       4
         In Doe, we held a school teacher’s sex acts with a minor former student were not within the scope of
       employment as a matter of law where the teacher solicited the student’s baby-sitting services by means of a
       school-owned computer and school-issued e-mail address and then engaged in personal communication with
       the student for over a year before doing the acts complained of, because such conduct was far removed from
       the teacher’s employment duty to communicate with current students about school work. 846 N.E.2d at 702
       (affirming grant of defendant’s motion for summary judgment).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017          Page 11 of 16
       simply had nothing to do with her job as a sex-crimes detective. The burden

       then shifted to West to show a genuine dispute of material fact precluding

       judgment for the City. She did not.


[20]   Below, West argued that Larkins’s part-time employment with the church as an

       IMPD-authorized security guard brought her act within the scope of

       employment with the City, and that it was genuinely disputed whether Larkins

       still worked as a security guard for the church in October 2007. West has

       abandoned this position on appeal, arguing instead that a genuine dispute

       existed as to whether Larkin forwarded Wadlington’s e-mail “as a purely

       personal act . . . or, at least in part, as a police officer (intending to warn the

       recipients of [West’s] alleged criminal conduct so that they could be alert and

       stay out of perceived danger) in furtherance of her oath to protect and serve.”

       Appellee’s Br. at 9. By “alleged criminal conduct,” id., West means the

       allegations in Wadlington’s e-mail that West “scream[ed]” at a church member

       and “‘attacked’ [the] child and wife” of the church’s former interim pastor.

       Appellant’s App. p. 23 (original scare quotes). Neither argument is sufficient to

       resist summary judgment.

[21]   As an initial matter, neither party, below or on appeal, presented cogent

       argument as to whether the acts of an IMPD officer while moonlighting as a

       private security guard may give rise to vicarious liability for the City. 5 We




       5
        The City dismisses this possibility in its opening brief on appeal in a footnote without citation. Appellant’s
       Br. at 13 n.4; but see generally Farr v. Laidig Concrete, Inc., 810 N.E.2d 1104, 1106-07 (Ind. Ct. App. 2004), trans.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017                  Page 12 of 16
       therefore assume for summary judgment purposes that Larkins’s acts within the

       scope of her employment as an IMPD-authorized church security guard could

       give rise to such liability as a matter of law.


[22]   We have held before that a law enforcement officer’s abstract duties to enforce

       the law and protect the public — stated at the highest level of generality, outside

       a concrete employment context, and unconnected to particular acts performed

       in the course of employment — could not sustain vicarious liability for the

       public employer. Ayers, 70 N.E.3d at 418 (reversing denial of defendant’s

       motion to correct error after judgment on jury verdict where sheriff’s deputy

       recklessly allowed spouse to commit suicide with deputy’s department-issued

       firearm); see also Moore, 706 N.E.2d at 608 (reversing denial of defendant’s

       motion for judgment on the evidence where police officer committed battery on

       driver following traffic stop and it appeared officer not employed to “make

       traffic stops outside the [c]ity’s corporate boundaries, out-of-uniform, or in

       unmarked police car”). Thus, here, to the extent that Larkins’s forwarding

       Wadlington’s e-mail was outside the scope of her particularized duties as a sex-




       denied (discussing vicarious liability for borrowed servants); Johnson v. Motors Dispatch, Inc., 172 IndApp. 285,
       360 N.E.2d 224, 292 (1977) (discussing vicarious liability for dual masters). Though no court of this state
       appears recently to have confronted the question, this court has held before that an off-duty police officer
       working for a private car auction acted within the scope of his public employment when chasing a car thief
       from the auction. Gentry v. Hockett, 498 N.E.2d 405, 406 (Ind. Ct. App. 1986) (citing Sports, Inc. v. Gilbert, 431
       N.E.2d 534, 539 (Ind. Ct. App. 1982) (“The employer does not ‘rent’ the state’s police power . . . .”); Tapp v.
       State, 406 N.E.2d 296, 302 (Ind. Ct. App. 1980) (“[I]t is the nature of the acts performed [that controls] . . .
       .”)). Courts of our sister states have reached opposite conclusions. Compare, e.g., White v. Revco Disc. Drug
       Ctrs., Inc., 33 S.W.3d 713 (Tenn. 2000) (vicarious liability may lie for public employer) with Melendez v. City of
       Los Angeles, 73 Cal. Rptr. 2d 469 (Cal. Ct. App. 1998) (no vicarious liability will lie for public employer). It is
       clear at least that the City would not be entitled to summary judgment on these grounds without further
       factual development and argument.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017                 Page 13 of 16
       crimes detective as discussed above, West cannot resist summary judgment by

       resorting to IMPD’s generalized interest in public safety or Larkins’s purported

       generalized duty to warn the public of any and every instance of “alleged

       criminal conduct . . . .” Appellee’s Br. at 9.


[23]   Nor can West successfully rely on Larkins’s duties as a part-time security guard

       for the church. West’s own designations reveal that Larkins’s duties as such

       were to protect “the security of the church” by patrolling the church parking lot

       to prevent car break-ins and by guarding the collections after church services

       until deposited by a church official. Appellant’s App. p. 166. In this capacity,

       Larkins worked Sundays and Wednesdays. Id. at 165. Larkins stated, without

       contradiction by other evidence, that she never worked for the church while on

       duty with IMPD. Id. at 166.


[24]   Nothing in Wadlington’s e-mail had any connection with Larkins’s duties as a

       church security guard. West’s designations reveal that Larkins’s duties were to

       protect church property and church members’ property during church services,

       not continuously to keep the peace between church members, warn church

       members of another member’s potentially or arguably hostile conduct, or

       initiate investigations into such conduct. Nothing in West’s designations

       suggests that Larkins was expected to or did perform any work for the church

       outside the church on days other than Sundays and Wednesdays, or while she

       was at her office and on-duty with IMPD.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017   Page 14 of 16
[25]   West essentially seeks a trial on Larkins’s intent or motivation at the time she

       forwarded Wadlington’s e-mail. Our supreme court has questioned the

       relevance of an employee’s purely subjective motivation in such cases. See

       Stropes, 547 N.E.2d at 249 (quoting with approval Marston v. Minneapolis Clinic of

       Psychiatry, 329 N.W.2d 306, 311 (Minn. 1982) (“[T]he employee’s motivation

       should not be a consideration[.]”)). Even assuming an employee’s motivation

       could furnish freestanding grounds for trial in the absence of any nexus or

       association of the employee’s acts with the employee’s duties, there is simply no

       evidence or rational inference that Larkins had the motivation ascribed to her

       by West: “to warn the recipients [of Larkins’s e-mail] of [West’s] alleged

       criminal conduct so that they could be alert and stay out of perceived danger[]

       in furtherance of her oath to protect and serve.” Appellant’s Br. at 9.


[26]   There is no reasonable inference that Wadlington’s allegation that West

       “scream[ed]” at a church member was an allegation of criminal conduct.

       Appellant’s App. p. 23. Also, Larkins never witnessed West “screaming” at

       anyone. Id. at 167. Nor had Larkins witnessed West “attacking” the former

       interim pastor’s child and wife. Id. at 169. The latter allegation “was just one of

       those things that was buzzing around the church.” Id. It is thus difficult to infer

       on Larkins’s part a need or motivation to warn the church membership of an

       incident she thought was already widely known. Larkins never tried to look

       into the allegations more closely or to find out more details. Id. at 170. Larkins

       never spoke with anyone about the allegations or undertook to discover

       whether they were true. Id. at 171. In fact, “[Larkins] didn’t undertake


       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017   Page 15 of 16
       anything. People would send [her] e-mails in reference to the church . . . ,

       whether it was encouraging people or relating things that were going on at the

       church[,] and [Larkins] forwarded the e-mails to the group[,]” id., the women’s

       ministry at the church called “Women of Faith.” Id. at 131. This casualness,

       incuriosity, and total lack of urgency on Larkins’s part with respect to the

       incidents described in Wadlington’s e-mail give rise to no reasonable inference

       that Larkins was motivated by a desire “to warn the recipients [of Larkins’s e-

       mail] of [West’s] alleged criminal conduct so that they could be alert and stay

       out of perceived danger[] in furtherance of her oath to protect and serve.”

       Appellant’s Br. at 9.


                                                 Conclusion
[27]   The City was entitled to judgment as a matter of law because no reasonable jury

       could conclude that Larkins’s forwarding Wadlington’s e-mail was sufficiently

       associated with Larkins’s employment duties as a sex-crimes detective to come

       within the scope of her employment with the City. The trial court therefore

       erred in denying the City’s April 19, 2016, motion for summary judgment. We

       reverse that denial and remand with instructions to grant the City’s motion.

[28]   Reversed and remanded for proceedings consistent with this opinion.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CT-2898 | July 13, 2017   Page 16 of 16
