Hennly v. Richardson

• Decision Date: 27 June 1994
• Docket Number: Nos. S93G1813,S93G1841,s. S93G1813
• Citation: 444 S.E.2d 317,264 Ga. 355
• Parties: , 63 USLW 2030, 10 IER Cases 1780, 3 A.D. Cases 617, 5 NDLR P 158 HENNLY v. RICHARDSON et al. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF VALDOSTA, INC. v. RICHARDSON et al.
• Court: Georgia Supreme Court

Page 317

444 S.E.2d 317

264 Ga. 355, 63 USLW 2030, 10 IER

Cases 1780, 3 A.D. Cases 617,

5 NDLR P 158

HENNLY v. RICHARDSON et al.

FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF VALDOSTA, INC. v. RICHARDSON et al.

Nos. S93G1813, S93G1841.

Supreme Court of Georgia.

June 27, 1994.

Reconsideration Denied July 14, 1994.

Robert M. Clyatt, Daniel C. Hoffman, Young, Clyatt, Turner, Thagard & Hoffman, Valdosta, for J.R. Hennly, Jr.

Jonathan A. Zimring, Zimring, Ellin & Miller, Atlanta, for Bonnie K. Richardson.

C. George Newbern, Edward F. Preston, Tillman, McTier, Coleman, Talley, Newbern & Kurrie, Valdosta, for First Fed. Sav. & Loan Ass'n of Valdosta, Inc.

HUNT, Chief Justice.

We granted certiorari to the Court of Appeals to decide whether Richardson's claims are barred under the Workers' Compensation Act (the Act) and whether Richardson fails to meet the definition of "handicapped individual" under the Georgia Equal Employment for the Handicapped Code (GEEHC). We answer both questions in the affirmative and reverse.

In 1987, Jim Hennly, the vice president of First Federal Savings and Loan Association (First Federal) and a pipe smoker, began working in an office close to the desk of Bonnie Richardson, a receptionist/switchboard operator at First Federal. Richardson has severe reactions to pipe smoke, and while the frequency and intensity of her exposure to Hennly's pipe smoke are disputed, it is undeniable that at the time of her termination by First Federal Richardson was experiencing physical illness because of the smoke.

Subsequently, Richardson filed suit against First Federal, challenging her termination under the GEEHC; in addition, she sued First Federal and Hennly for battery and intentional infliction of emotional distress, and sued Hennly for interference with contractual relations. Hennly's motion for summary judgment was granted with respect to the claims of battery and intentional infliction of emotional distress, and denied with respect to the claim of interference with contractual relations. First Federal's motion for summary judgment was denied. The Court of Appeals consolidated the two cases on appeal and held that Richardson's claims were not barred under the Act, that Hennly was not entitled to summary judgment on the claims of battery and intentional infliction of emotional distress, and that Richardson met the definition of "handicapped individual" under the GEEHC, 209 Ga.App. 868, 434 S.E.2d 772.

1. The Workers' Compensation Act in Georgia is intended to have broad application so as to cover a wide variety of injuries and the pain and suffering incident to such injuries. Southern Wire & Iron, Inc. v. Fowler, 217 Ga. 727, 729, 124 S.E.2d 738 (1962). There are, however, exceptions to this broad coverage. Injuries "caused by the willful act of a third person directed against an employee for reasons personal to such employee" are excluded. OCGA § 34-9-1(4). We agree with Hennly and First Federal that the Court of Appeals erred in holding the foregoing exclusion applies in this case.

Whether an injury occurred due to "reasons personal to" Richardson depends on whether her injury arose out of and in the course of her employment by First Federal. Murphy v. ARA Services, Inc., 164 Ga.App. 859, 861, 298 S.E.2d 528 (1982). An injury arises "in the course of" employment when it occurs within the period of the employment, at a place where the employee may be in performance of her duties and while she is fulfilling or doing something incidental to those duties. Id. An injury arises "out of" the employment when a reasonable person, after considering the circumstances of the employment, would perceive a causal connection between the conditions under which the employee must work and the resulting injury. Id. at 861-62, 298 S.E.2d 528. The injuries of which Richardson complains began and occurred while she was at her place of employment during the regular work day and were the result of the conditions under which she worked. First Federal did not have a policy restricting or prohibiting smoking. Thus, Richardson, while working at First Federal, was in a "smoking" rather than a "smoke-free" environment. Hennly's smoking was a part of that work environment, rather than an act directed at Richardson personally. ¹ Accordingly, we find that the injury to Richardson arose in the course of and out of her employment and that the exclusive remedies for her claims of battery and intentional infliction of emotional distress are under the Georgia Workers' Compensation Act.

2. First Federal also maintains that it was entitled to summary judgment on Richardson's claim that it violated the GEEHC, OCGA § 34-6A-1 et seq., because Richardson does not meet the definition of "handicapped" under that statute. We agree.

OCGA § 34-6A-2(3) defines "handicapped individual" as "any person who has a physical or mental impairment which substantially limits one or more of such person's major life activities, and who has a record of such impairment." OCGA § 34-6A-2(8) defines "substantially limits" as meaning "that the impairment so affects a person as to create a likelihood that such person will experience difficulty in securing, retaining, or advancing in employment because of a handicap." The language of the GEEHC is similar to that of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. ² In dealing with the issue of whether an impairment "substantially limits" an individual's ability to secure or retain employment, the federal courts have stated that "[t]he inquiry is ... whether the particular impairment constitutes for the particular person a significant barrier to employment." Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir.1986). The courts look to several factors to determine if the individual's ability to secure employment has been substantially limited, including the number and types of jobs from which the impaired individual is excluded, to what geographical area the applicant has reasonable access, and the individual's own job expectations and training. E.E. Black, Ltd. v. Marshall, 497 F.Supp. 1088 (D.Hawaii 1980); Jasany v. United States Postal Service, 755 F.2d 1244 (6th Cir.1985). It is well-settled that an inability to perform a particular job for a particular employer is insufficient to establish a handicap; the impairment must substantially limit employment generally. Byrne v. Board of Educ., School of West Allis, 979 F.2d 560, 565 (7th Cir.1992). ³

Though we are not bound by the federal cases in our resolution of this issue, Reynolds v. Reynolds, 217 Ga. 234, 243, 123 S.E.2d 115 (1961), we find the reasoning of those cases persuasive and hold that Richardson is not a "handicapped individual" under the GEEHC. There is no evidence that Richardson's sensitivity to pipe smoke will create a likelihood that she will have difficulty securing, retaining or advancing in employment with employers other than First Federal, and Richardson has admitted that she does not expect that to be the case. As Richardson's impairment does not affect her ability generally to secure employment, she does not meet the statutory definition of a "handicapped individual."

Judgment reversed.

All the Justices concur, except SEARS-COLLINS, J., who dissents.

SEARS-COLLINS, Justice, dissenting in part.

While I concur in Division 2, I do not agree with Division 1 of the majority opinion. The majority concludes that "Hennly's smoking was a part of [Richardson's] work environment, rather than...