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Reid v. Waste Industries USA, Inc.

Court of Appeals of Georgia, First Division

March 15, 2018

REID
v.
WASTE INDUSTRIES USA, INC. et al.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          McMillian, Judge.

         After Hans G. Reid was acquitted of charges stemming from his alleged brandishing of a gun on his supervisor and co-workers after he was fired, Reid filed this civil action for malicious prosecution, conspiracy, and intentional and negligent infliction of emotional distress against his employer and the employees who made the charges against him.[1] Reid appeals from the trial court's orders granting defendants' motion for summary judgment on these claims and from the order denying his motion for sanctions. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

         "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. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant." (Citation omitted.) Elder v. Hayes, 337 Ga.App. 826, 827 (788 S.E.2d 915) (2016).

         So viewed in Reid's favor, the evidence shows that in June 2012, Reid was employed by appellee/defendant Waste Industries Atlanta, LLC ("Waste Atlanta") as a recycle waste truck driver at its Douglasville, Georgia plant ("Douglasville plant"). During this time, Reid and other employees were having discussions about forming a union, and management had allegedly become aware of those activities. Carlos Pichardo, who at that time was the Operations Manager at the Douglasville plant, averred that in May 2012, Waste Atlanta's General Manager Tony J. Gouldthorp and regional manager Richard Johnson, made it clear that Reid needed to be terminated immediately because of his union activities.[2]

          According to Pichardo, he then took a series of steps to find instances where Reid had violated company rules. These efforts were unsuccessful and, in fact, Pichardo discovered that Reid had received a satisfactory rating on his last performance evaluation, which had been conducted in April 2012, and had been given a pay increase as a result of his rating of 4.5 out of 5. Pichardo averred that he was eventually instructed by Gouldthorp to adjust the sensitivity of Reid's onboard dash camera so that it would be more likely to record mistakes, and approximately two weeks later, it was detected that the visor in Reid's truck was blocking the onboard camera. Pichardo said at that point he was directed to immediately terminate Reid and to fabricate two additional write-ups so it would appear that Reid had been given similar warnings in the past since company policy required three warnings prior to termination.

         At the end of Reid's shift on June 20, 2012, Pichardo escorted Reid to Gouldthorp's office, where Gouldthorp, Maintenance Manager Mike Harrington, and Winn Bearden, a manager from an affiliated entity, were waiting in Gouldthorp's office for Reid. Unbeknownst to the others, Harrington activated the audio on his cell phone and recorded what happened next. Gouldthorp told Reid that he was being terminated for violating the onboard camera policy, and when Reid began to question it said the decision was final. Ignoring instructions that he leave, Reid insisted on retrieving items from the company truck he had driven that day and can be heard saying that he knows he is being terminated because of his union activities.

         After he went to his truck, Reid went back into the building to get his personal effects out of his locker, at which time he was again advised to leave and further advised he was illegally breaking into the building and that the police would be called. Reid proceeded to his locker and then headed back out of the building. On his way out, Reid and Harrington exchanged words, and Reid pulled his fist as if to strike Harrington and made a remark about kicking Harrington's "fat ass." Even Harrington testified, [3] however, that he believed Reid's actions were meant to intimidate him and he did not intend to make contact.

         Reid continued walking to the employee parking lot, where he had parked in his usual spot near the surveillance cameras. What happened next is at the heart of the issues in this case. Reid then walked to the trunk of his car and retrieved several items out of the back, including a handgun, for which he had a permit and which he normally kept in his car during work. According to Reid, he had placed the gun in his trunk while he went back inside to talk to the managers, but he took it out to place it under his car seat because he was afraid it could accidentally discharge if it was unsecured in the trunk. Reid said that although he and Gouldthorp were still exchanging words, he kept his gun pointed down by his butt while he walked to the door on the driver's side, got in his car, placed his gun under his seat, and drove away.

         The defendant managers can be heard saying on the audio tape that Reid has a gun, and Harrington called 911. According to Pichardo, before the police arrived, the men talked about what they would tell the police when they arrived, and Gouldthorp told the men to be sure to say that Reid pointed the gun at them and threatened them. Deputy Charles Sharpe of the Douglas County Sheriff's Department responded to the 911 call. According to Deputy Sharpe, Gouldthorp informed him that Reid had been terminated but then refused to leave the premises and that after finally walking to his vehicle, Reid had retrieved a gun and pointed it at Gouldthorp's face, stating words to the effect that he had his number or had something for him. Deputy Sharpe also said that Gouldthorp told him that before leaving the premises, Reid had pointed the gun at the other three men, one at a time, and told them he had something for them too.

          Deputy Sharpe directed the men to write individual statements of the incident, and each of the men confirmed that Reid had pointed a gun at them, except for Pichardo who wrote in his statement that he saw Reid with a gun but did not say that he pointed it. Around the time the statements were being prepared, Harrington informed Deputy Sharpe that he had made a recording of the incident, and Deputy Sharpe inquired as to whether the recording was video or audio. Harrington replied that it was only audio and added that he wished he had a video of the incident. Deputy Sharpe told Harrington that next time he made an audio recording he should also make a video and instructed him to save the recording. According to Deputy Sharpe, Gouldthorp was "present and engaged" in this conversation.

         Based on the information provided to him, Deputy Sharpe issued a "be on the lookout" for Reid and gave police dispatch Reid's home address. Reid was arrested later that evening at his residence, and he was subsequently charged with four counts of aggravated assault based on "pointing a handgun" at each of the defendant managers and four counts of terroristic threats.[4] The State ultimately nolle prossed the terroristic threat charges, and in late September 2013, Reid was tried on the four counts of aggravated assault.

         During Reid's criminal trial, Gouldthorp, Harrington, and Bearden testified for the State that Reid had pointed a gun at them or in their direction while making threatening remarks. Harrington's audio recording of the incident was also played for the jury at trial.

         Deputy Charles Sharpe testified that his entire knowledge of the incident was based on what the managers told him about Reid pointing the gun. Deputy Sharpe testified that approximately a week before trial, he learned that the incident would have been recorded by a surveillance camera in the lot where Reid was parked and that he wished he had asked about the video because if he had, he might not be sitting at the trial.[5] Gouldthorp testified that he knew there was a surveillance video directed toward the parking lot, but he did not think about pulling the video at the time of the incident. He said the video was requested about three weeks later, but by that time it had been recorded over in the regular course of business.

         Following the presentation of the State's case, Reid made a motion for directed verdict, which the trial court denied.

          Pichardo testified on Reid's behalf.[6] Pichardo testified that he saw Reid with a gun after he went to his truck, that everyone panicked and said to call 911 but that he never saw Reid point the gun at anyone and although he heard him yell at Gouldthorp as he was driving away, he could not hear what he said. He also said they rehearsed what they would say after they called 911 and that Gouldthorp told them to be sure they wrote in their statements that Reid pointed a gun at them and threatened them.

         Pichardo was questioned about the surveillance video on cross-examination. He conceded that he did not tell the officer that there was a camera in the area that would have recorded the incident, but he said he did not bring it up earlier because he was never asked. He also testified that he saw Gouldthorp looking at the video after the incident, but he personally did not view it.

         Reid testified in his own defense at trial. He admitted he was upset by the firing, which he believed was because of his union activities. He admitted to throwing a fake punch at Harrington and telling him he wanted to beat his "fat ass, " but said he was steadily walking away as he said it. Reid also admitted that he took the gun out of his trunk but said that he was just putting it back under his seat and that he never pointed the gun at anyone.

         Based on this and other evidence presented at the criminal trial, the jury returned a not guilty verdict on all counts.

         Subsequently, Reid complained to the National Labor Relations Board ("NLRB") about his firing, and in January 2013, the NLRB asserted a complaint alleging Waste Atlanta violated 29 USC § 158 based on discrimination against Reid and his termination for engaging in union activities. Pursuant to a settlement agreement ...


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