BARNES, P. J., MCMILLIAN and MERCIER, JJ.
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
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.
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).
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.
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.
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.
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,
however, that he believed Reid's actions were meant to
intimidate him and he did not intend to make contact.
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
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.
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.
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. The State ultimately nolle prossed the
terroristic threat charges, and in late September 2013, Reid
was tried on the four counts of aggravated assault.
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.
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. 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.
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. 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.
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.
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.
on this and other evidence presented at the criminal trial,
the jury returned a not guilty verdict on all counts.
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 ...