Marta v. Mosley, No. A06A0207.

• Decision Date: 13 July 2006
• Docket Number: No. A06A0207.,No. A06A0208.
• Citation: 634 S.E.2d 466,280 Ga. App. 486
• Parties: METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. MOSLEY. Metropolitan Atlanta Rapid Transit Authority et al. v. Mosley.
• Court: Georgia Court of Appeals

280 Ga. App. 486

Page 466

634 S.E.2d 466

METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. MOSLEY.

Metropolitan Atlanta Rapid Transit Authority et al. v. Mosley.

No. A06A0207.

No. A06A0208.

Court of Appeals of Georgia.

July 13, 2006.

Elizabeth McGrath O'Neill, Atlanta, Gay M. Reid, Robert J. Routman, for Metropolitan Atlanta Rapid Transit Authority.

Diana Y. McDonald, Duluth, for Mosley.

Pursley, Lowery & Meeks, John R Lowery, Atlanta, Norah M. White, for Richards.

BERNES, Judge.

Davetta L. Mosley sued her former employer, Metropolitan Atlanta Rapid Transit Authority ("MARTA"), and her former supervisor, Billy Richards, to recover actual and punitive damages based upon an alleged improper touch by Richards during her employment. She asserted a claim of battery against Richards, claims of negligent and wrongful retention and failure to provide a safe work environment against MARTA, and a claim of intentional infliction of emotional distress against both defendants.¹ The trial court denied the defendants' motions for summary judgment, from which they both appeal. For the reasons set forth below, we affirm the denial of summary judgment on Mosley's battery claim against Richards and her claim for negligent retention against MARTA, but we reverse the trial court's denial of summary judgment on the intentional infliction of emotional distress and failure to provide a safe work environment claims.

The standard of review of the denial of a defendant's motion for summary judgment is a de novo review of the evidence of record with all reasonable inferences therefrom viewed in the light most favorable to the nonmoving party. The purpose of the review is to determine whether there remains a question for jury determination as to at least one material fact upon which plaintiff's case rests. . . . If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.

(Citations, punctuation and emphasis omitted.) Hillcrest Foods v. Kiritsy, 227 Ga.App. 554, 554-555, 489 S.E.2d 547 (1997).

So viewed, the facts show that Mosley began working for MARTA as a part-time bus operator in October 1998. She was one of 600 bus operators supervised by Richards, and she had only come into contact with Richards on two occasions prior to the incident in question. According to Mosley, on December 3, 1998, Richards allegedly reached out as though he was going to shake her hand as she entered the dispatch office. They were in the narrow doorway of the office and in the presence of several people. As she took his hand, Richards allegedly spun her toward him so that her backside was compressed against the front of his body, rubbed his hand along her side between her waist and underarm, squeezed her waist, "moaned" and then smiled.² The interaction lasted for approximately two seconds, after which she immediately went outside and called her husband. She then drove her scheduled bus route.

The day after the alleged incident, Mosley filed a complaint with MARTA's Office of Equal Opportunity ("OEO") on the basis that she had been sexually harassed and assaulted by Richards. MARTA's affirmative action administrator conducted an investigation and ultimately found that Richards acknowledged placing his arm around Mosley's shoulders so as to hug her, but denied the remaining allegations. There were no witnesses to the event.³

The then-director of the OEO issued a Determination in which she found that Richards had acted improperly by placing his arm around Mosley and recommended the following corrective action: (1) Richards was ordered to cease from demonstrating inappropriate behavior in the workplace; (2) Richards was ordered to be counseled by management as to those behaviors and comments that are unacceptable in the workplace and informed that any further substantiated allegations of sexual misconduct against him would result in termination; (3) Richards was ordered to receive a written reprimand; and (4) Richards was advised to seek counseling through MARTA's Employee Assistance Program. While the first three corrective actions were taken, Richards was directed by his superiors to seek counseling but never actually did. Richards was subsequently transferred to a different garage, and Mosley had no further contact with him after the incident described above.

1. Battery. Richards contends that the trial court erred when it denied him summary judgment on Mosley's battery claim. We cannot agree.

In the interest of one's right of inviolability of one's person, any unlawful touching is a physical injury to the person and is actionable. Generally speaking, an "unlawful" touching is one which is "offensive," and an "offensive" touching is one which proceeds from anger, rudeness, or lust. The test . . . is what would be offensive to an ordinary person not unduly sensitive as to his dignity.

(Citations and punctuation omitted.) Newsome v. Cooper-Wiss, 179 Ga.App. 670, 672(1), 347 S.E.2d 619 (1986). A cause of action for battery "can be supported by even minimal touching." (Citations omitted.) Darnell v. Houston County Bd. of Ed., 234 Ga.App. 488, 490(1), 506 S.E.2d 385 (1998).

Although Richards contends that the interaction between him and Mosley was a brief and isolated incident, we cannot say as a matter of law that the alleged touching did not constitute a battery. See OCGA § 51-1-13; Jarrett v. Butts, 190 Ga.App. 703, 705(4), 379 S.E.2d 583 (1989). Given the relatively low threshold required to prove battery, to hold otherwise would run contrary to our mandate to view all evidence in the light most favorable to Mosley. The trial court did not err in denying Richards' motion for summary judgment on this claim.

2. Negligent and Wrongful Retention. MARTA contends that it is entitled to summary judgment on Mosley's claim for negligent and wrongful retention. We must disagree.

In a cause of action for negligent retention, "an employer may be held liable only where there is sufficient evidence to establish that the employer reasonably knew or should have known of an employee's `tendencies' to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff." (Punctuation and footnote omitted.) Poole v. North Ga. Conference of the Methodist Church, 273 Ga.App. 536, 538, 615 S.E.2d 604 (2005). A claim for negligent retention is necessarily derivative and can only survive summary judgment to the extent that the underlying substantive claims survive the same. See Phinazee v. Interstate Nationalease, 237 Ga.App. 39, 41, 514 S.E.2d 843 (1999); Coleman v. Housing Auth. of Americus, 191 Ga.App. 166, 167(1) S.E.2d 303 (1989).

As stated in Division 1, Mosley has set forth sufficient evidence for her claim of battery to survive summary judgment. It is undisputed that in 1980, a grievance had been filed against Richards by a different employee, Mary E. Ray, based upon Richards' "sexist and demeaning conduct." Richards was apparently counseled at that time and warned that unprofessional behavior would not be tolerated by MARTA. Nonetheless, the record contains an affidavit from Ms. Ray wherein she contends that she met with Richards' supervisor⁴ in July 1998 and reported to him that "Billy Richards continued to engage in lewd and offensive conduct towards me, including making offensive comments, touching my breasts and groping my body and making comments about sex all the time."⁵

Finally, the record contains an affidavit from Patrice Johnson-Pennington, the former affirmative action administrator in MARTA's Office of Equal Opportunity, who stated that she had been contacted by Ms. Ray sometime after 1995 and advised that "she had been subjected to inappropriate comments of a sexual nature by Billy Richards."⁶ Ms. Johnson-Pennington stated that she met with Richards in response to the allegations, reviewed with him MARTA's sexual harassment policies and counseled him about the inappropriate nature of his comments, and advised him that further inappropriate comments would result in disciplinary action, up to and including termination.

Faced with this evidence, we cannot hold as a matter of law that Mosley failed to put forth evidence countering MARTA's assertion that it had no knowledge of Richards' alleged misbehavior. See Coleman, 191 Ga. App. at 171-172(3), 381 S.E.2d 303. In light of the allegations of continued harassment by Ms. Ray, a jury question has been presented as to whether MARTA responded sufficiently to Ray's complaint and/or whether additional action should have been taken in response to Mosley's accusations. The trial court did not err in denying MARTA's motion for summary judgment on the claim for negligent retention.

3. Intentional Infliction of Emotional Distress. Both defendants contend that the trial court erred when it denied them summary judgment on Mosley's claim that they intentionally subjected her to serious emotional distress. We agree.

Georgia law recognizes the tort of intentional infliction of emotional distress. The burden which the plaintiff must meet in order to prevail in this cause of action is a stringent one, however. Four elements must be present to support a claim of intentional infliction of emotional distress: (1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the plaintiff's emotional distress; and (4) the emotional distress must be severe.

(Citations and punctuation omitted.) Mangrum v. Republic Indus., 260 F.Supp.2d 1229, 1256(III)(D) (N.D.Ga.2003) (applying Georgia law). See also Bridges v. Winn-Dixie Atlanta, 176 Ga.App. 227, 229-230(1), 335 S.E.2d 445 (1985).

"Liability for intentional infliction of emotional distress has been found . . . only when a defendant's conduct is so extreme in degree, as to go beyond all...