Kairys v. Douglas Stereo Inc.

WILNER, Judge. Appellant, Craig Kairys, sued his former employer, Douglas Stereo Incorporated (Douglas), Douglas’s general manager Lewis Rosenfeld, and a polygraph operator named ⁶⁷¹ Thomas Moore in the Circuit Court for Prince George’s County. The action arose from the aftermath of a theft that occurred at the Douglas store in the Iverson Mall on April 12, 1987. On April 30, 1987, Mr. Kairys was arrested and charged with that theft.

The charge was nol prossed by the State on November 19, 1987, because the prosecutor felt she had insufficient evidence. Two months later, Kairys filed this action. In an amended and second amended complaint, he charged Douglas with malicious prosecution (Count I), abuse of process (Count III), and wrongful discharge (Count IV); he charged Douglas and Rosenfeld together with defamation (Count II) and false imprisonment (Count VI); and he charged all three defendants with civil conspiracy (Count V). Eventually, the court entered summary judgment in favor of the respective defendants on all counts but Count IV, which Kairys then voluntarily dismissed.

In this appeal, Kairys contends that there was a genuine dispute of material fact as to each count ruled upon by the court and that summary judgment was therefore inappropriate. BACKGROUND Douglas is in the business of selling tapes, records, and stereo equipment. In 1987, it had eight stores, one of which was located in the Iverson Mall. Mr. Rosenfeld was the general manager of Douglas; Mr. Kairys was the acting manager of the Iverson Mall store.

On the evening of Sunday, April 12, 1987, Mr. Kairys called Mr. Rosenfeld to inform him that a bag of money was missing from the store. There apparently was a shortage in the deposit of Saturday’s receipts and Kairys was unable to find the missing bag. Eventually, it turned out that approximately $3,800 in cash and $1,500 in checks and credit card receipts were missing. What occurred thereafter, as reflected in the record before us, comes from the deposition testimony of Mr. Rosenfeld, Mr. Kairys, Mr. Moore, Glen Clark, the head of security at Iverson Mall, and ⁶⁷² Detective Michael Brady, of the Prince George’s County Police Department.

There was a floor safe in the back of the store to which the store managers had the combination. Someone had written the combination on a piece of wood located about two feet from the safe, however. When Kairys initially reported the bag missing, he told Rosenfeld that he was “almost sure” that he had put the bag in the safe and that a former employee, one Gerald Warfield, had been in the store on Saturday, that Warfield had used the bathroom, which was right next to the room where the safe was located, and that Warfield could have gotten the combination from the piece of wood. The next day (Monday, April 13), Rosenfeld went to the store, had another search made for the missing bag, and spoke with Kairys, another employee, Richard Walls, and Mr. Clark.

According to Rosenfeld, Mr. Walls told him that “he did not see the money go into the safe. He saw the money in the manila envelope in a folder alongside the counter on the floor,” that “[ajfter [Kairys] had gone through the money, he put it down in an envelope alongside the counter on the floor.” Rosenfeld said further that, during his second conversation with Kairys on April 12, Kairys volunteered, indeed “wanted” to take a polygraph test. He said that Walls also indicated a willingness to submit to such an examination. He thereupon arranged to have Kairys, Walls-, and three other employees examined by Mr. Moore.

Kairys had undergone a pre-employment polygraph examination by Moore in January, 1987. He underwent two more as a result of this incident, one on April 14 and one on April 21, 1987. On each of these occasions, he signed a consent form acknowledging that he requested the examination without duress, coercion, or promise of reward, that he understood that, under State law, an employer could not require any person to take a polygraph examination as a condition of employment or continued employment, and that “the taking of this polygraph examination is not a condition of my continuing in the employ of [Douglas]____” Accord ⁶⁷³ ing to Mr. Moore, when Kairys appeared on the 14th, he said that he “was anxious to get to the bottom of this and to take the test.” Following the April 14 examination, Moore said that he probably called either Mr. Rosenfeld or Douglas Jemal, an owner of Douglas. In a subsequent written report to Jemal, he opined that “Mr. Kairys displayed physiological responses indicative of the established criteria for a subject PRACTICING DECEPTION when affirmatively replying to the following relevant question: 9.A. ‘Do you know for sure that you placed that missing deposit into the safe on Sunday, April 12th, 1987?’ It is the undersigned examiner’s opinion that Mr. Kairys DID PRACTICE DECEPTION and was UNTRUTHFUL when answering ‘yes’ to the aforementioned relevant question.” It appears that Mr. Rosenfeld was informed of Moore’s opinion and that he relayed it to Kairys, who thought “it was full of crap.” That led to the follow-up examination of April 21.

As to that, Mr. Moore reported to Mr. Jemal on April 23 that: “Mr. Kairys displayed deception to the following relevant questions: 3. ‘Did you unlawfully take any of that missing money from that $5,299.00 deposit?’ 5. ‘Did you unlawfully take any of that missing money from that $5,299.00 deposit that is missing from the Iverson Wiz since April 11th or 12th, 1987?’ 8. ‘Do you know for sure who took any of that missing money from that $5,299.00 deposit?’ 9. ‘Do you know for sure how any of that missing money from that $5,299.00 deposit was spent?’ It is the undersigned examiner’s opinion that Mr. Kairys DID PRACTICE DECEPTION and was UNTRUTHFUL when answering ‘no’ to the aforementioned relevant questions.” ⁶⁷⁴ Mr. Rosenfeld had reported the theft to the county police on April 13, but he had no significant contact with the police until the 23rd, when he met with Detective Brady. Rosenfeld said that he did not suspect Kairys of having committed the theft until he learned of the results of the polygraph examinations, in which the only deceptions reported were with respect to Kairys. When he met with Detective Brady, he then suspected Kairys and told Brady so. He also gave Brady Mr. Moore’s telephone number.

According to Rosenfeld, Detective Brady expressed the belief that Kairys should be arrested. Detective Brady stated that Rosenfeld had told him that only Kairys had access to the safe and that, based on the results of the polygraph examinations, he believed that Kairys was responsible for the theft. Rosenfeld did not disclose that the combination to the safe was written on a piece of wood near the safe or Kairys’s statement that Mr. Warfield had been in the store and in proximity to the safe. Brady said that he relied on Rosenfeld’s investigation of the matter and asked whether Rosenfeld wanted Kairys arrested — a question Brady said he asks any victim — and Rosenfeld said that he did.

Rosenfeld denied making any request that Kairys be arrested. Brady made no further investigation, other than to leave word for Mr. Moore to call. He said that he made no investigation of anyone else because the other persons subjected to a polygraph examination showed no deception, according to Mr. Moore’s report. On April 29, Brady applied for a warrant and filed a Statement of Charges against Kairys.

A warrant was issued and Kairys was arrested the next day. Some sort of pre-trial proceeding was conducted on August 12, 1987. Mr. Rosenfeld, who was present, instructed his attorney to offer to drop the criminal charge in return for a release. According to Rosenfeld, “I didn’t want to see anybody get in any trouble, and I just told [the attorney] to try to get the whole thing ended then.” Kairys refused to sign a release, and so the case was not dropped at that point.

It was dropped on the day of trial, November 19, ⁶⁷⁵ 1987, however, because, as we stated, the prosecutor felt that there was not enough evidence to proceed. DISCUSSION Because the case was disposed of on summary judgment, we need to view the relevant facts, and all inferences that can properly be drawn from those facts, in a light most favorable to Mr. Kairys. Only if, in so doing, we find that there was no genuine dispute of material fact and that the defendants were entitled to judgment as a matter of law may we affirm. Malicious Prosecution To establish a case of malicious prosecution of a criminal charge, the plaintiff must show: (1) that a criminal proceeding was instituted or continued by the defendant against the plaintiff; (2) that it terminated in favor of the plaintiff; (3) the absence of probable cause for the proceeding; and (4) malice, i.e., that a primary purpose in bringing the proceeding was other than that of bringing an offender to justice.

Exxon Corp. v. Kelly, 281 Md. 689, 693 , 381 A.2d 1146 (1978). Certainly, the evidence here sufficed, for summary judgment purposes, to establish the first two elements. The fourth, for summary judgment purposes, depends on the third, for it seems to be settled law that, if the plaintiff establishes the lack of probable cause, “malice may be inferred.” Owens v. Graetzel, 149 Md. 689, 696 , 132 A. 265 (1926); Exxon Corp. v. Kelly, supra, 281 Md. at 699 , 381 A.2d 1146 . The issue, then, is whether the “evidence” before the court sufficed to show a lack of probable cause on the part of Douglas.

In this context, probable cause means “a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious [person] in believing that the accused is guilty.” Banks v. Montgomery Ward & Co., 212 Md. 31, 39 , 128 A.2d 600 (1957); Palmer Ford, Inc. v. Wood, 298 Md. 484, 493 , 471 A.2d 297 ⁶⁷⁶ (1984). The focus, said the Palmer Ford Court, at 495, 471 A.2d 297 , “is on those facts known to, and genuinely believed by, the one initiating or continuing the prosecution when it is initiated or continued.” In this instance, that means Mr. Rosenfeld. Rosenfeld had essentially four pieces of information indicating Kairys’s possible culpability at the time he “requested,” in Brady’s words, Kairys’s arrest. First, he knew that Kairys, as acting manager of the store, had control of the money and access to the safe.

Second, he knew that another employee, Walls, had reported seeing Kairys with an envelope of money that he put on the floor rather than in the safe. Third, he knew that, of all the employees in the store on April 12, including Walls, only Kairys was reported to have been deceptive in a polygraph examination. And fourth, he knew that the alleged deception bore on questions relating to whether Kairys took the money. Against this, he was aware that (1) Kairys had initially reported the missing bag, (2) the combination to the safe was written on a board near the safe and may have been visible to other people, and (3) Kairys had placed another person, Warfield, in the general vicinity of the safe.

In reaching the conclusion that Kairys was probably the culprit, Rosenfeld relied principally on the results of the polygraph tests. That raises the interesting and hitherto unexplored question of whether he had a right to rely on those results. Both the Court of Appeals and this Court have held on a number of occasions that the results of polygraph examinations are inadmissible as evidence because the reliability of the technique itself has not been satisfactorily established. See Lusby v. State, 217 Md. 191 , 141 A.2d 893 (1958); Kelley v. State, 288 Md. 298 , 418 A.2d 217 (1980); Guesfeird v. State, 300 Md. 653 , 480 A.2d 800 (1984); Johnson v. State, 303 Md. 487 , 495 A.2d 1 (1985), cert. denied 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986); Department of Public Safety v. Scruggs, 79 Md.App. 312 , 556 A.2d 736 ⁶⁷⁷ (1989).

This evidence is rejected, in other words, because it has not been shown to have judicially cognizable probative value. It may not be received even at an administrative hearing, where the rules of evidence are relaxed, Department of Public Safety, supra, or upon stipulation. Akonom v. State, 40 Md.App. 676 , 394 A.2d 1213 (1978), cert. denied 284 Md. 741 (1979). In reaching these conclusions, we have recognized, as have other courts, that polygraph examinations are often used for investigative purposes both by police agencies and in general commerce.

See Akonom and Department of Public Safety , both supra. But there is a limit to that as well. Detective Brady, for example, acknowledged that, although the Prince George’s County police use polygraph examination results, “[w]e use it just to assist. It is not probable cause.

It is just another tool.” More important, Md.Ann.Code art. 100, § 95, with exceptions not relevant here, prohibits employers from requiring their employees to submit to a polygraph examination as a condition of continued employment. Although there was substantial evidence here that Kairys was not “required” to submit to the examinations but indeed did so at his own suggestion, there was also evidence to the