Merely Providing Affidavit To Employer Cannot Give Rise to Malicious Prosecution Claim

In Thompson v. Hamm, No. W2015-00004-COA-R3-CV (Tenn. Ct. App. Nov. 17, 2015), the Tennessee Court of Appeals addressed the issue of whether an affidavit provided to the City of Memphis as an employer of both plaintiff and defendant was enough to establish that defendant “instituted a wrongful prosecution” of plaintiff, ultimately deciding that it was not in the circumstances at play.

Plaintiff was the maintenance manager at a water treatment plant for the city, and during his time as manager the city allegedly received several complaints that plaintiff discriminated on the basis of race. Defendant gave the city an affidavit detailing instances of racial discrimination by plaintiff. After receiving the affidavit, the City hired an independent firm to investigate the claims, and as a result of the investigation decided to charge plaintiff with violations of city policy. The city held a hearing and ultimately terminated plaintiff. Plaintiff appealed his termination to the Civil Service Commission, who found that there was “tension” between plaintiff and defendant and issued a decision setting aside the termination. The Chancery Court affirmed the Commission, and plaintiff was reinstated to his position.

Based on defendant’s affidavit, plaintiff filed suit for malicious prosecution against defendant. Defendant moved for summary judgment on several grounds, which the trial court granted, rulding that defendant’s “only involvement in the City’s internal investigation was providing the City information regarding Plaintiff’s conduct. Such action on the part of Defendant Hamm does not constitute the initiation of a lawsuit or judicial proceeding against Plaintiff as is required to succeed on a claim for malicious prosecution.” On appeal, plaintiff raised several issues, but the Court only analyzed one in affirming summary judgment, finding it dispositive of the case—defendant’s argument that “his provision of information to the City [was] insufficient to establish that [defendant] instituted a wrongful prosecution[.]”

To succeed on a malicious prosecution claim, a plaintiff must show that “a prior suit or judicial proceeding was instituted without probable cause[.]” Though liability can arise where a defendant “causes a third person to institute a wrongful prosecution,” such liability for a person who did not actually initiate the proceeding only exists where it “appear[s] that he or she was the proximate and efficient cause of putting the law in motion; some affirmative act in connection with the prosecution must be shown.” Further, simply providing information is not enough to give rise to malicious prosecution. “Before one can be liable for malicious prosecution, he must do something more than merely give information.” (internal citation omitted). “The person sought to be liable must take some active part in instigating or encouraging the prosecution.” (internal citation and quotations omitted).

Here, defendant provided an affidavit to the city describing allegedly discriminatory acts by plaintiff. The city made the “independent decision” to hire an investigatory firm and subsequently charge plaintiff. According to the Court, the record supported the conclusion that defendant simply provided information to the city and that he did not “urge[] or encourage[] the city to investigate [plaintiff],” nor did he have any “control over the decision of whether to pursue or abandon the charges against [plaintiff].” Accordingly, summary judgment for defendant was affirmed.

In affirming summary judgment, the Court rejected plaintiff’s argument that the analysis should change because the affidavit was the “key factor” leading to the investigation and hearing. The Court found this argument immaterial, as the decision to pursue the investigation and disciplinary hearing rested solely with the city. Further, the Court pointed out that policy considerations supported summary judgment for defendant, stating that the Court “decline[d] to extend the bounds of a malicious prosecution claim such that would potentially deter employees from making reports similar to Appellee’s because they are fearful of a retributory malicious prosecution action.”

Although this result leaves plaintiff with no retribution against a potentially false affidavit, it is likely the correct conclusion. Based on the record cited in the appellate opinion, it appears that plaintiff initially tried to bring an action for defamation, but that action was ultimately not pursued (likely because of statute of limitations problems). Malicious prosecution seems to have been plaintiff’s second choice for a cause of action, but the facts of this case simply did not support the elements of the claim.