Haysman v. Food Lion, Inc.

• Decision Date: 18 July 1995
• Docket Number: Civ. A. No. 494-175.
• Citation: 893 F. Supp. 1092
• Parties: Neil HAYSMAN, Plaintiff, v. FOOD LION, INC. Defendant.
• Court: U.S. District Court — Southern District of Georgia

893 F. Supp. 1092

Neil HAYSMAN, Plaintiff, v. FOOD LION, INC. Defendant.

Civ. A. No. 494-175.

United States District Court, S.D. Georgia, Savannah Division.

July 18, 1995.

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Noble Louis Boykin, Jr., Jones, Boykin & Associates, Savannah, GA, for plaintiff.

Charles M. Dalziel, Jr., Daniel N. Meyer, Atlanta, GA, for defendant.

Kirby Clarice Gould, Lee Carter Mundell, Hunter, Maclean, Exley & Dunn, Savannah, GA, for interested party.

ORDER

EDENFIELD, Chief Judge.

Plaintiff Haysman brought suit against Defendant Food Lion for discrimination on the basis of disability, intentional infliction of emotional distress, and battery. Food Lion moves for summary judgment on the disability claims, arguing that Haysman does not meet the requirements of the ADA or the Georgia Equal Employment for the Handicapped Code (GEEHC). Food Lion moves for summary judgment on the emotional distress and battery claims, arguing that if Haysman was battered or emotionally abused by a Food Lion employee, that employee either acted outside the scope of his employment and cannot bind Food Lion, or acted in the course of his employment and workers' compensation is the plaintiff's exclusive remedy. For the reasons discussed below, Food Lion's motion on the disability claims is granted in part and denied in part, and Food Lion's motion on the intentional tort claims is granted.

I. Background

As this case is before the Court on Food Lion's motion for summary judgment, the facts stated are either undisputed or cast in a light most favorable to the Plaintiff Haysman.

Haysman was hired by Food Lion as an assistant store manager in September, 1989. About four months later, on January 3, 1990, Haysman suffered an on the job injury when a pallet fell and struck him, injuring his knee and back. Subsequently, Haysman underwent knee surgery and a laminectomy to remove disc material in his back.

According to Haysman's neurologist, Dr. William Clary, M.D., Haysman was then limited to sedentary work, with indefinite and possibly permanent lifting restrictions of 10-15 pounds. (Clary Deposition at 32, 45). Additionally, Haysman has limitations on his ability to walk for distances, bending, standing and sitting. According to Dr. Clary, Haysman can sit for a maximum of sixty minutes, stand for a maximum of thirty minutes, and walk continuously for only three minutes. (Clary Deposition at 45). Dr. Clary gave Haysman a permanent disability rating of 7% based on the injury to his back. (Clary deposition at 47).

According to Dr. William Dickinson, Haysman's psychologist, Haysman also suffers from a pre-existing emotional disorder which was aggravated by the accident. (Dickinson Affidavit ¶ 10). Dr. Dickinson began treating Haysman on January 22, 1992, and initially diagnosed him as suffering from Post Traumatic Stress Disorder, depression and somatization. (Id. at ¶ 8). Dr. Dickinson opines that Haysman is impaired with regard to certain psychological functions, including: thinking, perception, judgment, affect and behavior. Additionally, Haysman had trouble sleeping and had nightmares during the time period covered in his complaint. (Id. at ¶ 6, 26). Dr. Dickinson gives Haysman a 20% permanent partial disability rating based on the above psychological factors. (Id. at ¶ 21).

Following the January 1990 accident, Haysman was out of work until May 18, 1992, collecting workers' compensation benefits for temporary total disability. On May 18, 1992, Haysman returned to work for Food Lion in a temporary light duty job created especially for him and within the restrictions established by his doctors. Initially, Haysman was to work no more than 5 hours per day and 20 hours per week, and would not be required to lift more than 10 pounds. The position created for Haysman required him to do various things such as greet customers and dust shelves. This position was not a management level job as Haysman's previous assistant manager position had been. Food Lion continued to pay partial workers' compensation benefits after Haysman's return in order to make up the difference between his salary before and after his return to work.

Over the next 18 months the situation between Haysman and Food Lion was not a pleasant one. Since the parties agree that Dr. Dickinson's records are a reliable memorial of Haysman's version of events, (Haysman Deposition at 83-84, Defendant's Brief at 13), we will quote from those records extensively in setting forth the factual background and chronology of Haysman's unhappy relationship with Food Lion.

From the outset, Haysman was apprehensive concerning his return to work and found this return difficult. After his first few days of work he told Dr. Dickinson that his new duties were causing him pain, that he could not stand for 20 minutes without screaming, and that he would like to be put back on disability and to begin a vocational rehabilitation program in order to teach him a trade which he could do more effectively. (Defendant's exhibit B — Dr. Dickinson's Affidavit & accompanying records at 44-47).

In June 1992, Haysman told Dr. Dickinson that Food Lion had him doing "more than he should be doing", thus increasing his pain, and that he wanted to stop working because the pain was too much for him. (Id. at 50-51). When Food Lion and Haysman's doctors attempted to increase Haysman's hours to 25 per week, he told Dr. Dickinson that he could not work the extra 5 hours per week. (Id. at 53). In July 1992, Haysman indicated to Dr. Dickinson that he could not work 20 hours per week, (much less 25), and that he was not getting along with people at work. (Id. at 56). In August 1992, after falling out of a chair at work, Haysman told Dr. Dickinson that working 5 hours per day was "hell." (Id. at 62). Throughout the fall of 1992, Haysman claims he was still unable to consistently work the hours scheduled for him and allowed by his physicians. In September 1992, Haysman expressed to Dr. Dickinson a desire to explore other occupational alternatives, because he felt that he needed to "make a better living and work full time." (Id. at 63-64).

In January 1993, Haysman told Dr. Dickinson that he had only been putting in 10-15 hours over the last several weeks and that he had yet to be able to put in the 25 hours then authorized by Dr. Clary. (Id. at 75). However, by late January 1993 Haysman had gradually progressed to the point where he was able to do some light stocking of paper products and began to feel better about work. (Id. at 76). Haysman was able to increase the hours he actually worked to 25 per week, even though he was still suffering from pain. (Id. at 81). Around this time Haysman approached his supervisors about a "strengthening program" and working his way back to full-time employment and his former assistant manager position. (Id. at 77). Haysman alleges that it was also about this time that the friction between he and his supervisors increased and that his fellow employees began to ridicule him concerning his chances of returning to management. (Id. at 79-80, Haysman Deposition 57-72).

Haysman's relationship with his supervisors and co-workers continued to deteriorate over the next few months. Haysman alleges that in April 1993 the store manager, Doug Gertzweiler, berated him in front of other employees. (Haysman deposition at 67-68). During this time Gertzweiler accused Haysman of "snowballing" the company with his disability. (Gertzweiler Deposition at 48). The assistant manager, Robert Reynolds, told Haysman that he "would break him" and was going to "ride him" until he quit. (Haysman Deposition at 168-170, Harris Deposition at 24). Haysman also claims that Reynolds told him to work every minute of his shift regardless of whether he was hurting. (Haysman Deposition at 159). Haysman alleges that he was further harassed because his hours were changed to the night shift, even though his job as a greeter could be done at any time since it was not a regularly scheduled position. He alleges that Reynolds used rather extreme profanity towards him (the specifics are omitted here, but are available in vivid detail in Haysman's Deposition). (Id. at 132, 137-144, 149, 213). However, there are no witnesses to the alleged profanity. Haysman also alleges that Reynolds would strike or kick him on injured portions of his body when he would walk by. (Id. at 86-93). However, there are also no witnesses to the alleged battery, nor is there any physical or medical evidence of such, nor has Haysman alleged any physical injury resulting from such battery. Haysman did not report these allegations of physical abuse to anyone at Food Lion.

Food Lion does not deny that friction developed between Haysman and his supervisors, although they do deny many of the specific incidents alleged. Haysman's supervisors apparently doubted that Haysman was injured to the extent that he claimed. The store manager, Mr. Gertzweiler, stated that Haysman was "so called hurt," (Gertzweiler Deposition at 50), and that he did not want to hear what Haysman's psychologist had to say, (id. at 50-51), and that he thought Haysman was a "joke," (id. at 53), and that he did not always believe that Haysman was hurting when Haysman said that he was. (Id. at 46). However, Gertzweiler never inquired of Food Lion as to Haysman's medical status or records. (Id. at 46, 48-50).

Dr. Dickinson is of the opinion that this alleged harassment exacerbated Haysman's psychological problems and symptoms. He states that Haysman's symptoms worsened over the spring and early summer of 1993 and he attributes this to what he believed was harassment by Haysman's supervisors. (Dickinson Affidavit at ¶ 32-40). Finally, on November 3, 1993, Dr. Dickinson totally disabled Haysman from working at Food Lion because of Haysman's deteriorating mental and emotional state and what Dr. Dickinson perceived to be on the job...