Johnson v. Lindsay Pope Brayfield & Assocs., A22A0189

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtRickman, Chief Judge.
Docket NumberA22A0189
Decision Date01 July 2022



No. A22A0189

Court of Appeals of Georgia, Second Division

July 1, 2022


Rickman, Chief Judge.

Appellant Gary W. Johnson brought this action for discrimination, wrongful discharge and defamation against his former employer, Lindsay Pope Brayfield & Associates, Inc. (LPB), and others. On appeal from the grant of summary judgment to defendants, Johnson argues that the trial court erred because the Georgia Equal Employment for Persons with Disabilities Code (OCGA § 34-6A-1 et seq. [the "Georgia Act"]) required defendants to make reasonable accommodation for his hearing loss and because questions of material fact also remain concerning his wrongful discharge and defamation claims. We find no error and affirm.


"Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant." (Citations omitted.) McRae v. Hogan, 317 Ga.App. 813, 815 (1) (732 S.E.2d 853) (2012).

So viewed, the record shows that LPB, an architectural firm, employs more than 30 people. Johnson, a licensed architect, began working with the firm in 2016. He suffers from hearing loss and tinnitus and informed the company on an emergency information form that he was hearing-impaired. In 2017, Johnson obtained hearing aids, which pick up sound in his vicinity as well as ambient sounds in the distance, but he can neither adjust them nor control frequencies or volume. Without them, Johnson can engage in conversation only by reading lips. Johnson's workstation was on the third floor next to another employee, Jim Lord. LPB's president, Winford Lindsay, was Johnson's supervisor, and Lindsay also supervised Lord. Johnson never received a written performance evaluation, but he received a bonus at the end of each calendar year.

In November 2017, Lindsay told Johnson that Lord had complained about the "noise [Johnson] generated" and had asked to be relocated. Lindsay asked Johnson


to "cut back" on his noisemaking and to try not to speak loudly, suggesting that his tendency to do so may have been linked to his use of hearing aids. Two days later, Lindsay told Johnson that due to a "reorganization," Johnson should consider moving to a workstation on the first floor. Johnson visited that location and found that it had a glass wall, was close to the street, and had exposed metal and duct work with no acoustic panels and wood and ceramic floors, and lacked rugs or carpets. Johnson also observed other sources of noise, including street traffic, and noted that he would be seated across from the elevator and two restrooms, with frequent deliveries and visitors via the front door. Another employee on the first floor described the location as "a lot louder" than the third and "a distracting place to work," and said that Johnson would likely not be able to "tune out" the noise or to perform his job properly there.

Johnson told Lindsay that he could not work on the first floor because of the noise there and remained on the third floor for a while. In December 2018, however, Lindsay again proposed that Johnson relocate to the first floor. In an email dated January 4, 2019, Johnson responded with a request that he remain on the third floor. Lindsay responded that he was not "happy with [Johnson's] reply" and asked that Johnson let him know if the proposed move was "a deal breaker." In an email sent to


the print room manager, however, Lindsay characterized Johnson's response as "grumbling" and asked the manager to move Johnson's items to the first floor work station on January 5.

On arriving on the third floor of the office that day, Johnson discovered that many of his items had been moved, went down to the first floor, and yelled at the manager, who was still in the process of moving Johnson's things. In the course of this altercation, Johnson told the manager that he was going to resign and that "he was done working here." Shortly afterward, Johnson apologized and asked for some boxes. The manager contacted another employee, who called Lindsay. Lindsay emailed the other principals at LPB to inform them that Johnson "[s]aid he was quitting" and directed the IT manager to "unplug [Johnson] asap." A few minutes later, Lindsay sent another email stating, "No two weeks/severance. He quit, or if he equivocates on that, he is fired for cause." After a series of emails as to whether Johnson had quit or had been fired, Lindsay noted that he "was happy to hear [Johnson] was quitting (no severance required), so [I] enacted the departing employee protocol."

On the following day, Lord emailed the principals as follows:

In light of the events at the office yesterday with Gary Johnson[,] I will work from home tomorrow, Monday[,] and perhaps longer. His behavior yesterday was described to me as a RAMPAGE. I don't feel the office is a secure environment. Gary Johnson is clearly mentally ill, aggressive[,] and a strong proponent of the NRA. He has brought firearms (plural) to the office previously, and he has an active key fob in his possession. I was told that he threatened some unpleasant interaction with [Lindsay for] Monday morning. Don't be fooled if he cools down and apologizes. Gary Johnson is unstable and a strong candidate for a mass shooting.

On January 7, Lindsay informed Johnson that he had accepted his resignation in accordance with Johnson's "public notice" and gave Johnson additional instructions as to the end of his employment.

Johnson filed suit against LPB, Lord, and others, alleging discrimination under the Georgia Act, wrongful discharge, libel, and tortious interference with an employment relationship. Defendants moved for summary judgment. After a hearing, the trial court granted the motion on the grounds that the Act did not require LPB to make reasonable accommodation for Johnson, who was an at-will employee, and that the statements in Lord's email were hyperbolic expressions of opinion not published to a third party and thus not actionable. This appeal followed.


1. Johnson first argues that because the Georgia Act prohibits discrimination on the basis of a disability, defendants were obligated to provide reasonable accommodation for his disability. We disagree.

Although the federal Americans with Disabilities Act ("ADA"), 42 USC § 12101 et seq., contains a provision requiring an employer to make reasonable accommodation for an employee with a disability, see id. at § 12112 (b) (5) (A), the Georgia Act contains no such requirement.

The principles governing our analysis of the relevant statutory provision, OCGA § 34-6A-4, are familiar:

When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. . . Applying these principles, if the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.

(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 S.E.2d 337) (2013). Specifically, and consistent with the fundamental separation


of powers between legislative and judicial branches of government, a court "cannot add language to a statute by judicial decree." Moosa Co. v. Commr. of Ga. Dept. of Revenue, 353 Ga.App. 429, 432 (838 S.E.2d 108) (2020). Expert commentators have noted, moreover, that the Georgia Act is "unique," with "[n]o other state law or regulation" defining disabilities in the same way. James Wimberly, Georgia Employment Law (4th ed. 2008), § 7:18, p. 396; see also Bowers v. Estep, 204 Ga.App. 615, 619 (3) (420 S.E.2d 336) (1992) (given the unambiguous exclusion of disorders such as claustrophobia and depression from OCGA § 34-6A-2 (2)'s definition of "mental impairment," a plaintiff could not maintain his discrimination claim under the Georgia Act arising from those conditions).

With these principles in mind, we turn to OCGA § 34-6A-4, which provides in relevant part:

(a) No employer shall fail or refuse to hire nor shall any employer discharge or discriminate against any individual with disabilities with respect to wages, rates of pay, hours, or other terms and conditions of employment because of such person's disability unless such disability restricts that individual's ability to engage in the particular job or occupation for which he or she is eligible; nor shall any employer limit, segregate, or classify individuals with disabilities in any way which would deprive or tend to deprive any individual with disabilities of employment opportunities or otherwise affect employee status because
of such person's disability, unless such disability constitutes a bona fide and necessary reason for such limitation, segregation, or classification.

(Emphasis supplied.) The same subsection also provides that it "shall not be construed to require any employer to modify his or her physical facilities or grounds in any way or exercise a higher degree of caution for an individual with disabilities than for any person who is not an individual with disabilities[.]" Id.

On its face, the statute does not require an employer to "accommodate" a disabled employee; rather, the statute requires only that the employer not "discriminate," nor "limit, segregate, or classify" a disabled person so as to "deprive [that person] of employment opportunities or otherwise affect employee status because of...

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