Garcia v. Shaw Industries, Inc.

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 SE2d 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.” — 49 — 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 claim2 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 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 — 50 — 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, — 51 — 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 SE2d 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 arrest is belied by the fact that the arrest was the result of a truthful complaint, an investigation by the fraud unit, and a warrant authorized by a magistrate court judge. Not even the dissent disputes that the charges against Garcia were authorized based on her conduct. Thus, we are tempted to conclude that Garcia failed to carry her burden of showing that there was a genuine issue for trial regarding Shaw’s alleged malice. — 52 — (b) But pretermitting whether Shaw could be protected from liability by OCGA § 34-9-24 or other immunity law,3 a claim of intentional infliction of emotional distress requires a showing of “extreme and outrageous conduct,”4 which means much more than malice: It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. (Punctuation omitted; emphasis supplied.) Bowers v. Estep, 204 Ga. App. 615, 618 (2) (420 SE2d 336) (1992), citing Restatement (Second) of Torts, § 46, comment d. In this case, as a matter of law Shaw’s actions do not amount to extreme and outrageous conduct. “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” (Citation and punctuation omitted.) Frank v. Fleet Finance, Inc. of Ga., 238 Ga. App. 316, 318 (518 SE2d 717) (1999). See also Racette v. Bank of America, 318 Ga. App. 171, 179 (3) (733 SE2d 457) (2012) (same). When Shaw filed an administrative fraud complaint with the Georgia State Board of Workers’ Compensation, it truthfully and accurately related the facts, as Garcia has admitted. Garcia had been discharged from Shaw a year earlier, and there is no evidence that — 53 — Shaw had any continuing contact with Garcia or any animus or ill will. Instead, Shaw had reason to believe that Garcia was falsifying her identity and lying about her authorization to work in the United States. Shaw may have also desired to shed a light on Garcia’s fraudulent behavior in the hopes that it might affect its liability for continuing workers’ compensation benefits, but the fact remains that when it made its report to the Board, Shaw had a well-formed basis to believe that Garcia was engaging in illegal conduct. In light of its fully accurate report of Garcia’s misconduct, Shaw’s decision to report a suspected crime, even if motivated by a desire to limit its future workers’ compensation exposure, cannot be said to be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” The case of Fleming v. U-Haul Co. of Ga., 246 Ga. App. 681 (541 SE2d 75) (2000), is distinguishable because in that case the plaintiff presented some evidence that the defendant lacked a good faith basis for swearing out an arrest warrant. In Fleming, the plaintiff made two telephone calls to U-Haul to report that his rented truck had broken down on Interstate 20 and to give his name, location, and the contract number. Id. Despite being told in each call that someone was coming to assist, no one showed up for one hour and forty minutes, whereupon the plaintiff left the keys in the truck (not in the ignition), hitchhiked home, and had no further contact with U-Haul. Id. Sometime thereafter, U-Haul swore out a warrant for the plaintiff’s arrest, and the plaintiff was eventually arrested and spent eight days in j ail. Id. at 682. The plaintiff was indicted for theft by conversion, but U-Haul later dismissed the charge because the truck had been recovered and U-Haul did not wish to pursue the case. Id. This Court held that the dismissal of the case was some evidence that probable cause was lacking; that the jury would be authorized to find that U-Haul “negligently failed to ascertain the complete state of facts or recklessly failed to present them fully and fairly to the magistrate who issued the arrest warrant”; and that a jury could conclude that U-Haul “wantonly disregarded [the plaintiff’s] rights in swearing out an arrest warrant. . . [after the plaintiff] informed U-Haul’s agents [the truck] was stalled, after the twice-promised roadside assistance never materialized.” Fleming, supra at 683-684. Here, it is undisputed that Shaw provided fully accurate information in the complaint, and there is no suggestion that probable cause for Garcia’s arrest was lacking. For the reasons discussed in Division 1 (b), a rational jury could not reasonably conclude that Shaw acted in an extreme and outrageous manner when it filed a complaint with the Board that led a — 54 — government agency to investigate and, eventually, arrest Garcia. Accordingly Garcia’s claim of intentional infliction of emotional distress must fail. 2. Garcia next argues that the trial court erred in granting summary judgment to Shaw on its allegation that her defamation claim was barred by a one-year statute of limitation. Shaw filed the fraud complaint with the Board on March 19, 2009. On September 9, 2010, Garcia filed her defamation claim alleging that Shaw wrongfully accused her of “forgery” and “stated this to multiple other people in order to provoke these criminal charges.” Garcia’s complaint was filed about 18 months after Shaw’s complaint to the Board. OCGA § 9-3-33 provides that actions for “injuries to the reputation ... shall be brought within one year after the right of action accrues.” Statute of limitation is an affirmative defense pursuant to OCGA § 9-11-8 (c). Thus, Shaw bore the burden on summary judgment to come forward with evidence demonstrating as a matter of law that Garcia’s alleged defamation occurred more than a year prior to the filing of her defamation action.5 Once Shaw did this, by pointing to the 18-month time lapse between the filing of its fraud complaint with the Board and Garcia’s filing of her defamation action, and by pointing to an absence of evidence of other defamatory acts, the burden shifted to Garcia either to show that her case fell under the continuing tort doctrine, or that the statute of limitation was tolled.6 This she has failed to do. Garcia first argues that the statute of limitation had not run because she was not “fully harmed” until she was arrested on April 8, 2010, and that neither she nor her workers’ compensation attorney knew about the fraud complaint until after that arrest. This argument is unavailing. It is well established that “[a]ctions for injuries to the reputation . .. must be brought within one year from the date of the alleged defamatory acts regardless of whether or not plaintiff had knowledge of the act or acts at the time of their occurrence.”7 Garcia also alleges that there is evidence that Shaw and its agents continued to defame her in the period between the submission — 55 — of the fraud complaint and her arrest, but points us to no evidence in the record on this point. Rather, she alleges that she is entitled to a negative inference because Shaw’s attorney, Ryan, cited attorney-client privilege and the work-product doctrine in declining to answer deposition questions regarding Shaw’s communications with the Board and with law enforcement. Although Garcia initially filed a motion to compel Ryan’s testimony, she voluntarily withdrew it. Pretermitting whether a negative inference could obtain here, we decline to permit Garcia to pursue on appeal that which she abandoned in the trial court.8 Thus, Garcia’s arguments that Shaw’s actions constituted a continuing injury are unavailing. In an analogous situation involving a defamation case related to a series of newspaper articles, we determined that the statute of limitation began to run on the last date that the news source spoke to reporters, rather than on the first date that an article in a series was published.9 Here, the facts do not support a claim that the purported injury was inflicted over a period of time, as the alleged defamatory publication to the Board of the fraud complaint constituted a completed act.10 We find no error, and affirm. Judgment affirmed. Andrews, P. J., Doyle, P. J., and Boggs, J., concur. Miller, P. J., Phipps, P. J., and Ray, J., concur in part and dissent in part. Footnotes [1] But Garcia deposed that the Shaw employee who helped her fill out the application told her to apply using the Sanchez name, rather than her real name. [2] Garcia filed multiple WC-14 forms, and it is unclear to which, one Ryan was referring. [3] OCGA § 51-5-7 provides in part: The following communications are deemed privileged: (1) Statements made in good faith in the performance of a public duty; (2) Statements made in good faith in the performance of a legal or moral private duty; (3) Statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned; (4) Statements made in good faith as part of an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern, as defined in subsection (c) of Code Section 9-11-11.1;. . . [4] “The elements of a cause of action for intentional infliction of emotional distress are: (1) intentional or reckless conduct; (2) that is extreme and outrageous; (3) a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress.” Ferrell v. Mikula, 295 Ga. App. 326, 333 (3) (672 SE2d 7) (2008). [5] Realty World-Druid Realty v. Hooper Properties, 191 Ga. App. 773, 774 (1) (b) (383 SE2d 164) (1989). [6] Id. [7] (Citation and punctuation omitted.) Brewer v. Schacht, 235 Ga. App. 313, 317 (4) (a) (509 SE2d 378) (1998) (statute of limitation began to run when allegedly defamatory report was submitted at an open meeting, rather than when plaintiff’s injury occurred). Accord Cunningham v. John J. Harte Assocs., Inc., 158 Ga. App. 774, 775 (282 SE2d 219) (1981) (statute of limitation began to run when written report was submitted to county, not from date of injury). [8] See, e.g., Peterson v. Baumwell, 202 Ga. App. 283, 285 (2) (414 SE2d 278) (1991) (failure to oppose motion to compel amounts to “acquiescence by silence” and waives right to appeal, as a party may not complain of a judgment or ruling his own conduct aided in causing). [9] Torrance v. Morris Publishing Group, 281 Ga. App. 563, 566 (1) (636 SE2d 740) (2006) (libel is published when it is communicated to any person other than the party libeled); Scouten v. Amerisave Mtg. Corp., 283 Ga. 12, 73 (1) (656 SE2d 820) (2008) (publication of slander or oral defamation occurs upon communication to anyone other than the person slandered). [10] See Cunningham, supra at 774.