Garcia v. Shaw Indus., Inc.

• Decision Date: 29 March 2013
• Docket Number: No. A12A1667.,A12A1667.
• Citation: 741 S.E.2d 285,321 Ga.App. 48
• Parties: GARCIA v. SHAW INDUSTRIES, INC.
• Court: Georgia Court of Appeals

321 Ga.App. 48

741 S.E.2d 285

GARCIA

v.SHAW INDUSTRIES, INC.

No. A12A1667.

Court of Appeals of Georgia.

March 29, 2013.

Brent J. Savage, Savannah, Brent Jamieson Savage, Jr., for Appellant.

Amy Snell Auffant, Elarbee, Thompson, Sapp & Wilson, Stanford G. Wilson, Porsche D'Janet Leonce, William Drummond Deveney, Atlanta, for Appellee.

BRANCH, Judge.

Karina Garcia appeals from the trial court's grant of summary judgment to her former employer, Shaw Industries, Inc. She contends the trial court erred in granting summary judgment because genuine issues of material fact remain as to her claim for intentional infliction of emotional distress, and she argues that her defamation claim is not barred by the statute of limitation. For the reasons that follow, we affirm.

On appeal from a grant of summary judgment, this Court reviews the evidence de novo, viewing it in the light most favorable to the nonmoving party, to discern whether a genuine issue of material fact remains or whether the moving party is entitled to judgment as a matter of law. Smith v. Lott, 317 Ga.App. 37, 37, 730 S.E.2d 663 (2012).

Garcia is not a United States citizen, but she entered the country legally with a border-crossing card. She was not authorized to work in the United States, but she obtained employment at a company called Modern Fibers using the name, Social Security number, and other personal information of Cristal Sanchez, a United States citizen whose identity Garcia paid $400 to use. When Shaw purchased Modern Fibers, Garcia reapplied for her job, again under the Sanchez name. She consistently indicated on all applicable employment forms that her name was Sanchez.¹

In March 2007, Garcia slipped and fell at work, injuring her back and knees. After treatment, she returned to light-duty work with some restrictions, and Shaw's third-party administrator, Gallagher Bassett, filed an initial claim with the Georgia State Board of Workers' Compensation (the “Board”). Garcia later retained a lawyer because she thought she had to wait too long for doctors' appointments, and this attorney on July 26, 2007, filed a Form WC–14 notice of claim with the Board and copied Shaw and Gallagher Bassett at that time; that form gives Garcia's first name as “Karina” and her last name as “Garcia aka Cristal Sanchez.” The Board then opened a separate claim file.

Garcia became eligible for temporary partial disability (“TPD”) benefits because she was earning less at her light-duty job, and Gallagher Bassett began paying those benefits in checks made out to “Cristal Sanchez.”

In December 2007, without challenging Garcia's back injury, Shaw requested a hearing regarding benefits for Garcia's other injuries, and Shaw hired attorney Robert Ryan to handle that dispute. Ryan saw that on a WC–14 notice of claim ² Garcia gave her name as “Karen Garcia a/k/a Cristal Sanchez” and that she had requested that she be assigned a Social Security number; he therefore served discovery on her asking if she was a United States citizen and if she was authorized to work in the United States. Garcia refused to respond and invoked the Fifth Amendment. Ryan arranged a follow-up deposition, which was held on February 26, 2008, at which Garcia revealed that the name and Social Security number she provided to Shaw were not hers; she refused to provide additional clarification.

Consequently, on March 5, 2008, Shaw discharged Garcia, following which Ryan told Garcia's attorney that Shaw would continue to provide medical benefits and TPD income benefits, but would not provide temporary total disability (“TTD”) income benefits, because Shaw believed that Garcia's inability to work was due to her immigration status rather than to her injury. Garcia later admitted that after her discharge, she continued to tell potential employers that she was authorized to work in the United States despite the fact that she had never been authorized to do so and that her authority to be in the United States had expired. Garcia also admitted that after her termination she continued to identify herself under the assumed identity when applying for jobs.

In December 2008, Ryan heard the director of the Enforcement Division of the Workers' Compensation Board speak at a seminar about the issue of the use of false identity by illegal aliens, following which Ryan spoke to Shaw about Garcia's case. In March 2009, one year after discharging Garcia, Shaw filed a complaint with the fraud and compliance unit of the Board. See OCGA § 34–9–24 (establishing the fraud and compliance unit). The complaint states that “this is a case of suspected identity theft and a case of suspected misrepresentation” and that Garcia had “willfully made false and misleading representation[s] for the purpose of obtaining workers' compensation benefits.” Shaw “respectfully request[ed] that the Board review this matter to determine if the Claimant has committed workers' compensation fraud.” The complaint stated the history of Garcia's employment as Cristal Sanchez and how Shaw was paying her workers' compensation benefits under that name. The complaint also mentioned a WC–14 dated December 20, 2007 and highlighted how the plaintiff gave her name as “Karina Garcia a/k/a Cristal Sanchez” on that form. At her deposition in this lawsuit Garcia admitted that all the factual assertions in the complaint that Shaw filed were true.

At some point, Shaw, on request from the Board's fraud unit, provided the division with a copy of Garcia's file. And approximately one year after Ryan filed the complaint for Shaw, someone from the Board's fraud unit contacted Ryan to say that she had warrants for Garcia's arrest. She asked Ryan if there were any upcoming hearings or depositions so that they could locate Garcia, and Ryan told her about the upcoming April 8, 2010 deposition. Garcia was arrested on warrants signed by a magistrate judge for forgery and possession of a fraudulent document on April 8, 2010, as she was leaving her attorney's office after the deposition. On September 9, 2010, Garcia filed the action that led to this appeal.

1. Garcia contends the trial court erred in granting summary judgment to Shaw as to Garcia's claim for intentional infliction of emotional distress. Specifically, she argues that there is evidence from which a reasonable person could find that Shaw set her up for arrest causing her severe emotional distress sufficient to create a claim of intentional infliction of emotional distress. Although we do not condone Shaw's conduct, we conclude that it does not rise to the level of extreme and outrageous conduct necessary to sustain a claim of intentional infliction of emotional distress.

(a) We first address Shaw's contention that its actions in filing the fraud complaint were protected from liability under OCGA § 34–9–24, a provision of the Workers' Compensation Act that provides a safe harbor for persons who “[i]n the absence of fraud or malice” furnish the Board with information regarding suspected fraud:

In the absence of fraud or malice, no person or entity who furnishes to the board information relevant and material to suspected fraud under or noncompliance with the workers' compensation laws of this state shall be liable for damages in a civil action or subject to criminal prosecution for the furnishing of such information.

OCGA § 34–9–24(d).

Here, Garcia admits that the allegations contained in Shaw's complaint are true, and therefore it is undisputed that Shaw did not commit fraud when it filed its complaint. And both Ryan, the attorney Shaw hired in connection with Garcia's workers' compensation issues, and Melinda Majors, the workers' compensation analyst in Shaw's risk management department, testified that they were not motivated to file the complaint by malice or ill will against Garcia. Rather, although Shaw made clear that it would continue to provide medical benefits and TPD income benefits to Garcia, it was concerned about Garcia's future eligibility for TTD income benefits because Shaw believed that her inability to work was due to her immigration status rather than to her injury. When “sworn testimony evidences [a party's] good faith in filing [a] complaint” the opposing party “cannot rest upon his allegations or denials but is cast with the burden of showing there was a genuine issue for trial.” (Citation and punctuation omitted.) Farrar v. Macie, 297 Ga.App. 192, 195(3), 676 S.E.2d 840 (2009). Garcia has offered little more than rhetoric in her attempt to carry that burden.

Garcia describes her case of intentional infliction of emotional distress as being based on the following assertions: that Shaw knew well before it filed the complaint that Garcia was operating under an assumed identity; that Shaw continued to pay Garcia workers' compensation benefits payments under the Sanchez name, anyway; that Shaw filed the complaint days after Garcia found out she might need back surgery; that Shaw failed to disclose to the Board that it possessed a copy of the earliest WC–14 showing Garcia had an alias; that Shaw's attorney lured her into a deposition so that she could be arrested, and perhaps, deported; and that the arrest was “set up” at Shaw's request.

First, even if it is true that Shaw knew that Garcia had an alias and that Shaw was paying Garcia under the wrong name, it is not malice for Shaw to want to bring Garcia's possible illegal behavior to an end. Second, Garcia offers no evidence to show that Shaw knew at the time it filed the complaint that Garcia's medical condition had worsened. Third, the fact that Shaw's counsel may have told the investigator from the workers' compensation fraud unit where Garcia could be found in order that she be arrested is not evidence of malice. The investigator could have found Garcia's whereabouts in many other ways. Assisting law enforcement by providing readily available information does not amount to malice. And finally, Garcia's rhetoric that Shaw “set up” her...