Ward v. Papa's Pizza To Go, Inc., Civ. A. No. 694-041.

• Court: United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
• Writing for the Court: EDENFIELD
• Citation: 907 F. Supp. 1535
• Parties: Debbie J. WARD, Plaintiff, v. PAPA'S PIZZA TO GO, INC., Defendant.
• Docket Number: Civ. A. No. 694-041.
• Decision Date: 10 January 1995

907 F. Supp. 1535

Debbie J. WARD, Plaintiff,
v.
PAPA'S PIZZA TO GO, INC., Defendant.

Civ. A. No. 694-041.

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

January 10, 1995.

907 F. Supp. 1536

COPYRIGHT MATERIAL OMITTED

907 F. Supp. 1537

Elizabeth F. Bunce, Franklin, Taulbee, Rushing & Bunce, Statesboro, GA, for plaintiff

David Timothy Whitworth, Donna Linn Crossland, Fendig, McLemore, Taylor & Whitworth, Brunswick, GA, David N. Levine, Atlanta, GA, for defendant.

ORDER

EDENFIELD, Chief Judge.

Plaintiff brought suit seeking compensatory and punitive damages for disability-based employment discrimination and intentional infliction of emotional distress. Defendant moves for partial summary judgment on the issues of tort liability, punitive damages, and front pay awards. For reasons discussed below, Defendant's motion is GRANTED.

I. Facts

The essential facts of this case are as follows; the Court notes material disputes.

Defendant opened a pizza establishment in Metter, Georgia in January of 1992, and was greeted by over a hundred employment applications from local residents. Among the applicants was Plaintiff, who visited the store just before its opening and submitted an application in person to Mike Oglesby, district supervisor of the Defendant company.

907 F. Supp. 1538

Mr. Oglesby does not remember the substance of his encounter with Plaintiff, but does know that he did not extend an offer of employment to her; he left those decisions to the local manager of that particular store. Plaintiff remembers a fifteen minute conversation with Oglesby, during which she told him that she had epilepsy. Oglesby "showed concern," and asked if the condition had affected her prior jobs. Plaintiff responded that it had not significantly affected her past employment. Oglesby then allegedly said that he would not hire Plaintiff at that time, preferring to wait and see if she could get her seizures "under control." Oglesby promised to "keep her in mind" for a job passing out flyers

In response to a newspaper advertisement, Plaintiff again applied to Defendant's Metter store in October, 1992. She submitted an application form to Wendy Sanders, the store manager, and reviewed with Ms. Sanders her previous work experience in "fast food" establishments. She also told Sanders that she had epilepsy. Ms. Sanders apparently responded that Plaintiff's epilepsy "shouldn't be a problem," or words to that effect,¹ and asked her to return at a later time.² Plaintiff did so, and was informed that in the interim another person had been hired to fill the available position.

Plaintiff testified that she applied a third time in November, 1992, again in response to a newspaper advertisement. In her Equal Employment Opportunity Commission ("EEOC") complaint, however, she stated that she met with Sanders in November to follow up on her initial interview in October. Regardless of the correct sequence of events, she did not submit another written application, but met with Sanders at the store. Ms. Sanders does not recall this third meeting with Plaintiff, stating that after their second October meeting, Sanders never saw Plaintiff again and discarded her application. Plaintiff claims that during the November meeting Sanders raised the issue of Plaintiff's epileptic seizures and concerns about Plaintiff cutting herself with automatic slicers used in the store. Sanders then allegedly "flat out said that she was not going to hire Plaintiff because of her seizures." D. Ward Dep. at 57. Plaintiff then claims that she offered to sign a written release of any claims arising from job-related injuries caused by seizures, but that Sanders declined. Plaintiff then left.

On December 1, 1992, Plaintiff filed a complaint with the EEOC, claiming that she "was refused employment three times because of my seizure disorder." See Def.Mtn. for Ptl.Sum.Judg., Exh. C. In November, 1993, Plaintiff's counsel requested and received a Notice of Right to Sue on Plaintiff's behalf. Id. This action was filed on February 9, 1994, seeking damages for violations of the Americans With Disabilities Act ("ADA") and the intentional infliction of emotional distress. On September 6, 1994, Defendant moved for partial summary judgment on Plaintiff's tort claim and various damages issues.

II. Summary Judgment Analysis

The "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citation omitted). Analysis ends "where there is no genuine issue of material fact and where the moving party is entitled to judgment as a matter of law." Great Lakes Dredge & Dock Co. v. Miller, 957 F.2d 1575, 1578 (11th Cir.1992); Real Estate Fin. v. Resolution Trust Corp., 950 F.2d 1540,

907 F. Supp. 1539

1543 (11th Cir.1992) (both citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). Thus, summary judgment is appropriate where the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552; Tidmore Oil Co. v. BP Oil Co., 932 F.2d 1384, 1387-88 (11th Cir.), cert. denied, 502 U.S. 925, 112 S.Ct. 339, 116 L.Ed.2d 279 (1991)

"A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. See Goree v. Winnebago Indus., Inc., 958 F.2d 1537, 1539 (11th Cir.1992). If the movant successfully discharges this initial burden, it shifts to the nonmovant, who must establish, by going beyond the pleadings, that there is a genuine issue as to facts material to the nonmovant's case. Thompson v. Metropolitan Multi-List, Inc., 934 F.2d 1566, 1583 n. 16 (11th Cir.1991). See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir.1991), cert. denied, 502 U.S. 1048, 112 S.Ct. 913, 116 L.Ed.2d 813 (1992).

The nonmovant "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986); United States v. Gilbert, 920 F.2d 878, 882 (11th Cir.1991). If the nonmovant's response to the summary judgment motion consists of nothing more than conclusory allegations, then the Court must enter summary judgment in the movant's favor. Peppers v. Coates, 887 F.2d 1493, 1498 (11th Cir.1989).

In assessing whether the movant is entitled to summary judgment, the district court must construe the evidence and all reasonable factual inferences arising from it in a manner most favorable to the nonmovant. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992). The Court must avoid weighing conflicting evidence, Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513-14, or making credibility determinations. Id. at 255, 106 S.Ct. at 2513-14; McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 934 (11th Cir.1987). A mere "scintilla" of evidence supporting the nonmovant's position, however, will not suffice. E.g., Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). Nevertheless, where a reasonable fact finder may "draw more than one inference from the facts, and that inference creates a general issue of material fact, then the court should refuse to grant summary judgment." Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir.1989) (citation omitted).

III. Intentional Infliction of Emotional Distress

Defendant first seeks summary judgment on Plaintiff's pendent state law claim of intentional infliction of emotional distress. See 28 U.S.C. § 1367 (on supplemental jurisdiction). A court appropriately screens the evidence supporting such a claim to determine if it warrants submission to a trier of fact. See Moses v. Prudential Ins. Co. of Amer., 187 Ga.App. 222, 226, 369 S.E.2d 541 (1988). In the instant case, even viewing all of Plaintiff's allegations as true, i.e., she applied to Defendant three times; was rejected three times; and was explicitly told that she was being denied employment because of her disability, her claim still fails as a matter of law.

A. Emotional Distress Basics

To recover for the intentional infliction of emotional distress, "the defendant's actions must have been so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff." Id. at 224-25, 369 S.E.2d 541; Sweeney v. Athens Regional Medical Center, 709 F.Supp. 1563, 1579 (M.D.Ga.1989). Georgia courts follow a three prong inquiry. Plaintiffs must show:

(1) that the defendant's behavior was willful and wanton and intentionally directed to harming the plaintiff; (2) that the actions of the defendant were such as would

907 F. Supp. 1540

naturally humiliate, embarrass, frighten, or outrage the plaintiff; and (3) that the conduct caused mental suffering or wounded feelings or emotional upset or distress to the plaintiff.

Coleman v. Housing Auth., 191 Ga.App. 166, 170, 381 S.E.2d 303 (1989). See also Yarbray v. Southern Bell Tel. & Tel. Co., 197 Ga.App. 846, 399 S.E.2d 718 (1990), aff'd in part, rev'd in part, 261 Ga. 703, 409 S.E.2d 835 (1991). The first prong of this test, the state of mind inquiry, is met when the defendant acts in "reckless disregard of the rights of others." Moses, 187 Ga.App. at 224, 369 S.E.2d 541. The second prong, the "outrageousness" inquiry, is resolved by reviewing the totality of the circumstances. Id. at 225, 369 S.E.2d 541. To rise to the required level of outrageousness, the acts complained of "must be sufficiently egregious or outrageous to...