Coleman v. Housing Authority of Americus

Citation191 Ga.App. 166,381 S.E.2d 303
PartiesCOLEMAN v. HOUSING AUTHORITY OF AMERICUS et al. HOUSING AUTHORITY OF AMERICUS v. COLEMAN. ROBINSON v. COLEMAN. 77913-77915.
Decision Date09 March 1989
CourtUnited States Court of Appeals (Georgia)

Bensonetta Tipton Lane, Atlanta, for Coleman.

Mary Mendel Katz, Macon, for Housing Authority.

Thomas S. Chambless, Dawn G. Benson, Albany, for Robinson.

BEASLEY, Judge.

This main appeal and the two cross-appeals arise from an action brought by Lodenia Coleman alleging on-the-job sexual harassment. Coleman was employed by the Housing Authority of the City of Americus, first from 1972 until 1978 as a clerk-typist and subsequently from 1981 to 1987. In 1984 she became an occupancy supervisor. Defendant James Robinson was the Executive Director of the Housing Authority, hired in March 1984. As director he was Coleman's superior and supervisor. The other two defendants are the Housing Authority and Arthur Cheokas, Chairman of its Board of Commissioners.

In 1987 Coleman filed a letter with the Board complaining that Robinson mishandled personnel management functions and engaged in sexual harassment. During the course of an ongoing investigation and on the day Robinson was to appear before the Board, he resigned as of March 31, 1987. Shortly thereafter, on May 13, Coleman also resigned because of the prolonged effect of the trauma she suffered and because when she tried to talk with Cheokas about the prior problems he "embarrassed me by laughing in my face."

This lawsuit followed. It alleged that Robinson sexually harassed Coleman over the course of three years, that his conduct amounted to the intentional infliction of mental, physical, and emotional distress, and that the defendants Cheokas and Housing Authority negligently hired Robinson and negligently retained him after they knew or should have known of his propensities.

After discovery, defendants moved for summary judgment. The trial court granted the motion as to defendants Cheokas and the Housing Authority on Coleman's allegations of negligent hiring. This is the subject of the main appeal 77913. The trial court denied Cheokas and the Housing Authority's motion on the theory of negligent retention from which they cross-appeal (77914). The trial court also denied Robinson's motion on the basis that there remained genuine issues of fact concerning whether he intentionally inflicted harm on Coleman through the use of language, citing Tuggle v. Wilson, 248 Ga. 335, 282 S.E.2d 110 (1981).

1. The first issue is whether there is sufficient evidence to support an action for intentional infliction of emotional distress by Robinson upon Coleman (cross-appeal 77915). If not, then the causes of action against the other defendants, which are essentially derivative, must fall.

Title VII of the Civil Rights Act of 1964 is not implicated and our analysis proceeds along traditional common law lines. Favors v. Alco Mfg. Co., 186 Ga.App. 480, 482(1), 367 S.E.2d 328 (1988). Compare the Title VII case of Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), where for the purpose of that Act the Court analyzes instances of workplace sexual harassment as constituting two basic types: conditioning favorable treatment upon the granting of sexual favors, and creating a hostile work environment. In that context, the activity here would involve the second category. See 45 AmJur2d 725, Job Discrimination, § 801.

Of course, the common-law principles in Georgia to which we refer are not narrowly limited to the common law and statutes of England as they existed prior to May 14, 1776. See Hannah v. State, 212 Ga. 313, 322, 92 S.E.2d 89 (1956). They include the progression of law that has developed by construction of the statutes and legal maxims since that time. See Davis v. Atlanta Gas Light Co., 82 Ga.App. 460, 463, 61 S.E.2d 510 (1950). See particularly Moses v. Prudential Ins. Co., 187 Ga.App. 222, 224, 369 S.E.2d 541 (1988). The common law is a living, growing body, cautiously flexible enough to meet new conditions but firmly tied to the precepts of the past. See 15A AmJur2d 594-599, Common Law, § 1-3, and cases cited.

Thus the Georgia Supreme Court, in Tuggle v. Wilson, supra, 248 Ga. at 337, 282 S.E.2d 110, recognized that already in Georgia a plaintiff could recover in tort "where the defendant has wilfully and wantonly caused emotional upset to the plaintiff through the use of abusive or obscene language." See also the cases and principles for which they are cited in Moses, supra.

Ms. Coleman, it is noted, presented evidence of physical manifestations (headaches, crying, chest pains) as well as mental and emotional symptoms (upset, despondency, depression). She also testified that in addition to language, Robinson used other means of communication such as stares, laughter, and the showing of written and pictorial material to cause distress. The type of wilful and wanton injury-causing behavior which she claims was a breach of duty is sexual harassment. What is more, she alleges it was intentional.

Even applying the stringent test enunciated in the holding in Moses, Coleman's evidence is not deficient as a matter of law.

In deposition, Coleman testified that although she was promoted shortly after Robinson became her superior, he began at the same time a pattern of sexual communication with her that lasted during most of the time he worked there. She freely conceded that he never touched or made physical contact with her. However, she related a number of examples which she contended amounted to sexual harassment through conversation, innuendo and body language.

According to her, Robinson would call her into his office on business and then inexplicably veer off into personal matters involving sex. He showed her cartoons of a sexual nature, inquired of her as to how she and her husband had sex and if they had tried an act depicted in one of the cartoons. He often sought to engage her in conversation about masturbation and the sexual practices of black women. He proffered her a video about black women engaging in sex together and offered to exchange movies having pornographic content. He told her sexual and racist jokes. The compliments he paid her were of a sexual nature. Once he told her the way she wore a dress "made him crawl all over," and on other occasions he inquired if she knew what her walk did to him. He gave her "funny looks" and often seemed to stare "straight through" her, "looking up and down and just smiling evil." He also spread rumors that she, a married woman, had a "crush" on a co-worker. When they were to have a business conference at a motel, he remarked to her that "you can meet me there a little bit earlier if you want to," with what Mrs. Coleman believed to be an implication of an assignation. He discussed the sexual practices of the former director.

Throughout, she constantly remonstrated with him to stop, protested, left his office and told him to leave her desk. She talked of bringing these matters to the attention of others, but Robinson warned her of the consequences if she accused him of something she could not prove. Some practices stopped, but only temporarily, after she was particularly vehement in rebuffing him.

During this time, in 1985 and 1987, she was hospitalized for pain in her back and neck and recurring headaches. She also endured spells of crying and depression. Her doctor testified that, in retrospect and at that time, he believed that job-related tension or stress was primarily the cause of her headaches and certainly could have been a factor in all the medical problems she suffered.

Standing alone, some of the incidents she related would not amount to actionable infliction of emotional distress by way of sexual harassment. But the repetition, over her protests, could be found to have had a cumulative effect. This can be particularly acute in an employment setting. The court has recognized that "the existence of a special relationship in which one person has control over another, as in the employer-employee relationship, may produce a character of outrageousness that otherwise might not exist." Bridges v. Winn-Dixie Atlanta, 176 Ga.App. 227, 230(1), 335 S.E.2d 445 (1985). See also Tuggle, supra, 248 Ga. at 337, 282 S.E.2d 110. The argument that such remarks were insignificant and not sufficient to cause harm belittle but do not defeat the claim.

The workplace is not a free zone in which the duty not to engage in wilfully and wantonly causing emotional distress through the use of abusive or obscene language does not exist. Actually, by its very nature, it provides an environment more prone to such occurrences because it provides a captive victim who may fear reprisal for complaining, so that the injury is exacerbated by repetition, and it presents a hierarchy of structured relationships which cannot easily be avoided. The opportunity for commission of the tort is more frequently presented in the workplace than in casual circumstances involving temporary relationships. This court acknowledged by its decision in Bridges, supra, that the tort could occur in the employment setting, although the complained-of actions there did not rise to...

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