                      IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE



JOHN DAVIS,                           )
                                                                       FILED
                                      )                                  September 29, 1999
       Plaintiff/Appellant,           )      Davidson Circuit No. 97C-1823
                                      )                                Cecil Crowson, Jr.
v.                                    )                               Appellate Court Clerk
                                      )
COMPUTER MAINTENANCE                  )      Appeal No. 01A01-9809-CV-00459
SERVICE, INC.,                        )
                                      )
       Defendant/Appellee.            )


          APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                        AT NASHVILLE, TENNESSEE


                       THE HONORABLE WALTER C. KURTZ, JUDGE



For the Plaintiff/Appellant:          For the Defendant/Appellee:

B. Keith Williams                     James D. Kay, Jr.
Brody N. Kane                         John B. Enkema
Lebanon, Tennessee                    Nashville, Tennessee




                                      AFFIRMED


                                      HOLLY KIRBY LILLARD, J.



CONCURS:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
                                             OPINION

       This is an employment disability discrimination case. The plaintiff employee filed suit

against the defendant employer, alleging that he was wrongfully terminated shortly after he was

hired because of his diabetes, in violation the Tennessee Handicap Act. The trial court granted

summary judgment in favor of the defendant employer, finding that the plaintiff proffered

insufficient evidence that his termination was wrongfully based on his handicap.          We affirm,

finding that the plaintiff’s condition does not constitute a “handicap” under the Tennessee Act, based

on Sutton v. United Airlines, Inc., 527 U.S. _____, 119 S. Ct. 2139 (1999), decided after the trial

court’s decision in this case.

       Plaintiff/Appellant, John Davis (“Davis”), was hired as a purchasing agent by

Defendant/Appellee, Computer Maintenance Service, Inc. (“CMS”), on June 24, 1996. The job for

which Davis was hired required him to order and price parts over the phone, return defective

merchandise to manufacturers, receive incoming parts, issue parts, and lift heavy equipment such

as computer monitors. Davis is an insulin dependent diabetic and must take multiple daily insulin

injections. He also takes an oral medication to aid in digestion. A side effect of the oral medication

is a frequent dry cough. At the June 24 interview, Davis told CMS about his medical condition.

       Davis began work on July 1, 1996. He stored his insulin in the refrigerator located in the

CMS break room. On July 3, 1996, after a meeting with a CMS supervisor, CMS fired Davis. Davis

contends that CMS terminated him because of his diabetes, based on comments made to him about

his medical condition by the CMS supervisor at the meeting at which he was terminated.

       Davis filed a lawsuit on June 9, 1997 naming CMS as the sole defendant. The complaint

alleged that at the meeting at which Davis was terminated, the CMS supervisor who terminated

Davis, David Bender (“Bender”), voiced concerns about Davis’ diabetes. Bender also allegedly had

concerns about other employees sharing the same work area with Davis and did not believe that

Davis could perform the tasks required for his position. Davis maintained that CMS violated the

Tennessee Handicap Act (“THA”), codified at Tennessee Code Annotated § 8-50-103. Davis also

asserted claims for negligent hiring or supervision, intentional and negligent infliction of emotional

distress, retaliatory discharge, and outrageous conduct. In the complaint, Davis sought $500,000 in

compensation for impairment of his earning capacity, loss of future income, loss of back pay, loss

of medical insurance benefits, loss of life insurance coverage, loss of opportunity for advancement

and “serious humiliation and embarrassment causing severe mental anguish.” The complaint sought
$1,000,000 in punitive damages for the alleged intentional, willful, and malicious actions of CMS,

as well as attorney’s fees.

        The answer filed by CMS admitted that any statements made by a CMS supervisor would

be imputed to CMS through the doctrine of respondeat superior, but denied that Bender made any

discriminatory remarks to Davis. CMS denied all other claims asserted in Davis’ complaint. In

addition, CMS raised several defenses, including failure to state a claim upon which relief may be

granted, and asserted that Davis was unable to adequately perform the duties of the job for which

he was hired.

        After discovery was conducted, CMS filed a motion for summary judgment. The summary

judgment motion asserted that Davis was fired because he “had problems lifting and moving the

computer inventory and was insubordinate and arrogant.” CMS denied that it terminated Davis

solely because of his diabetes. In the alternative, CMS claimed that it was entitled to summary

judgment because Davis was not “handicapped” and because CMS did not regard Davis as having

an impairment that substantially limited a major life activity. CMS asserted that there were no facts

to support Davis’ claims for negligent hiring and supervision, retaliatory discharge, intentional and

negligent infliction of emotional distress or punitive damages. In support of its motion, CMS filed

the depositions of Davis, Bender and several CMS employees.

        In CMS’ memorandum of law filed in support of its motion for summary judgment, CMS

argued that, under the Tennessee handicap discrimination statute, a plaintiff has to prove he or she

was fired solely because of a handicap. CMS maintained that the proof showed that it fired Davis

because of lifting problems and insubordination, and therefore did not violate the Tennessee statute.

Second, CMS asserted that Davis could not be considered “handicapped” under the Tennessee

statute because he had submitted no proof that his condition substantially limits a major life activity,

nor had he submitted evidence that CMS regarded him as having an impairment that substantially

limits a major life activity.

        In response to CMS’ summary judgment motion, Davis asserted that CMS’ proffered

reasons for his termination were not legitimate since he was not told these reasons at the time of

termination. Davis also asserted that he adequately performed the required job duties, including




                                                   2
lifting, and was not arrogant or disrespectful. Accordingly, Davis argued that there was a genuine

issue of material fact regarding whether he was terminated solely because of his diabetes.

       Davis asserted that he is “handicapped” under the Tennessee statute because he must

administer daily insulin shots and must comply with a proper diet and exercise program. He also

asserted that the alleged statements made by Bender at the meeting at which he was fired

demonstrated that CMS regarded him as impaired.

       In opposition to CMS’ motion for summary judgment, Davis filed his affidavit, in which he

stated that his diabetes did not interfere with the performance of his job duties. He denied being

disrespectful or having trouble taking direction from CMS supervisors.

       In Davis’ deposition, he testified about his initial interview with CMS employee Janet Baxter

(“Baxter”). Davis testified that he told Baxter about his diabetes, and that, because of the diabetes,

he would need insurance coverage. Davis said that Baxter assured him that, if he currently had

insurance, there would be no problem with CMS insuring him. Davis understood from Baxter that

he would be eligible for health insurance immediately, and was not told of any waiting period. He

also understood that CMS had a 120 day probation period in which he could be fired for performance

reasons. Davis testified that, at the time he was hired, he did not feel that his diabetes was a

handicap or that his condition prohibited him from performing any of the job duties.

       In his deposition, Davis testified that after working two and one-half days, Bender called

Davis into the conference room to talk. Davis and Bender were the only persons present. Davis said

that Bender commented on Davis’ insulin in the refrigerator and asked him if he was a diabetic.

Bender also questioned Davis about his cough. Davis testified that when he told Bender about the

cough, Bender told him that it was not acceptable and that he was going to terminate Davis. Davis

said that Bender felt that he could not perform the functions of his position, expressed concern about

the well being of other employees, and said it was necessary to terminate Davis. Davis then left the

meeting and went home. Davis claimed that he was never told of any dissatisfaction about his job

performance, nor was he told that his diabetes interfered with his job performance. Davis denied




                                                  3
that he almost dropped a monitor. When asked why he thought he was discriminated against, Davis

stated,

                 The reason I think I was discriminated against was because the folks in this
          company when they contacted their insurance company found out how much it was
          going to cost to insure an insulin-dependent diabetic and they decided they weren’t
          going to invest that kind of money in a new employee.

When asked about proof to support this assertion, Davis replied, “That’s what I feel, because I gave

them no reason to fire me.”

          Davis testified in his deposition that, after he was terminated by CMS, he had no health

insurance until the summer of 1997 when he obtained insurance through TennCare. During the time

in which he was uninsured, Davis calculated that he incurred approximately $12,000 in medical bills.

          In support of its motion for summary judgment, CMS relied on the depositions of CMS

employees allegedly showing that it had legitimate non-discriminatory reasons for firing Davis.

Bender, the shop manager and CMS supervisor who terminated Davis, testified that he knew that

Davis was a diabetic at the meeting at which Davis was terminated because Davis told him when

Bender questioned Davis about his cough. Bender said that, on Davis’ second day of work, someone

mentioned to him Davis’ frequent cough and he became concerned. Bender denied asking Davis

about insulin in the refrigerator. He stated that he saw Davis falter on two separate occasions while

lifting monitors. He conceded that Davis succeeded in placing the monitors in boxes as was

required, but felt that Davis looked unsteady. Bender said it was immediately obvious to him that

“lifting was going to be a very serious limitation there.” Bender stated, however, that “[t]o the best

of my knowledge, . . . he was performing the tasks that we hired him to do.”

          Bender testified that when he asked Davis to meet with him, he originally intended only to

ask Davis about the cough, but when Davis became defensive, agitated, and disrespectful, he fired

him. Bender said that the meeting:

          ended very abruptly. [Davis] said, well, what, you going to release me? You know,
          and at this point -- and he -- and I’m already mad. I don’t need these -- you know,
          I’m, I’m your boss, I don’t need you talking to me this way, yes, I’m going to release
          you, you know. He got up, left.

Bender stated that it was his decision to fire Davis and that no one at CMS directed him to fire

Davis.




                                                    4
         Stephen Vire, the President of CMS, said that he also saw Davis almost drop a monitor. He

also noticed that Davis’ cough “impeded him being able to carry on phone conversations, which is

a lot of that job.” When Bender asked Mr. Vire his opinion of Davis, Mr. Vire told Bender about

both of these concerns. Mr. Vire also testified that Davis had trouble taking direction from his

direct supervisor, Pom Norris. However, Mr. Vire did not believe that Davis failed to do any job

duties that he was asked to do. Mr. Vire maintained that he did not know Davis was a diabetic until

he was interviewed by the EEOC.

         Dianne Vire, the CEO of CMS and Stephen Vire’s spouse, testified that Pom Norris, the

employee who trained Davis, told her that Davis “was very argumentative, opinionated, and did not

want to do things by the company policy.” Mrs. Vire was told by both Pom Norris and Bender that

Davis was having trouble lifting equipment. Mrs. Vire stated that neither she nor any other CMS

employee checked on insurance premiums for Davis. Mrs. Vire filled out Davis’ separation notice.

On the separation notice, she listed the reasons for termination as: “Argumentative with trainer, he

knew it all, caught CMS on fire, smoking and throwing cigarettes in mulch, CMS is a nonsmoking

environment, not capable of job duties as led to believe during the interview process.”

         Manaswee (Pom) Norris (“Norris”), was an accountant for CMS who sometimes performed

purchasing duties. Norris trained Davis. Norris testified in her deposition that Davis coughed often.

On a loudness scale of one to ten, Norris rated the cough at an eight. She testified that Davis failed

to properly tag incoming parts, and that, on Davis’ second day of work, he did not receive the

incoming parts in a timely manner as the job required. She thought Davis seemed like a “know-it-

all” because he did not take notes when she was training him. She did not think he was capable of

doing the job at CMS because he spent all his time ordering parts instead of receiving them. She

also noted that Davis “fussed” a lot about noise levels and about people failing to put parts back.

She testified that Davis was a slow worker and did not follow the CMS procedures for the job. As

a result, Norris said that she had to receive parts, which was not her job. She did not remember any

occasions on which Davis had trouble talking on the phone or had to stop in mid-sentence to cough

while talking on the phone. Norris did not see Davis struggle and almost drop a monitor. Norris

testified that she did not call CMS’ insurance agent to determine the cost of health insurance for

Davis.

         Based on this record, the trial court considered CMS’ motion for summary judgment. The


                                                  5
trial court found that the record contained no evidence to support Davis’ claims for retaliatory

discharge, outrageous conduct, intentional or negligent infliction of emotional distress, negligent

hiring or supervision, or punitive damages. Therefore, the trial court granted CMS’ motion for

summary judgment on these claims.

       On Davis’ handicap discrimination claim, the trial court found that Davis was handicapped

as defined by Tennessee Code Annotated, but that Davis proffered insufficient evidence that CMS

fired him because of his handicap. The trial court reasoned that, under St. Mary’s Honor Center v.

Hicks, 509 U.S. 508, 113 S. Ct. 2742 (1993), Davis was required to “show evidence sufficient for

the fact finder reasonably to conclude that the employer’s decision to discharge him or her was

wrongfully based on the handicap . . . the plaintiff cannot avert summary judgment if the record is

devoid of adequate direct or circumstantial evidence of discriminatory animus on the part of the

employer.” Citing Pruett v. Wal-Mart Stores, Inc., No. 02A01-9610-CH-00266, 1997 WL 729260

(Tenn. App. No. 25, 1997), the trial court found that Davis could not survive summary judgment by

asserting that he must have been fired due to his handicap simply because the reasons given for his

termination were untrue. Consequently, the trial court granted CMS’ motion for summary judgment

on the handicap discrimination claim as well.

       On appeal, Davis argues that summary judgment was inappropriate because there is a

genuine issue of material fact as to whether he is handicapped and whether he has sufficient evidence

to support his cause of action under the Tennessee Handicap Act. He also asserts on appeal that he

submitted sufficient proof to survive summary judgment on his claims for retaliatory discharge,

outrageous conduct, intentional or negligent infliction of emotional distress, negligent hiring or

supervision of employees, and punitive damages.

       A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter

of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of

demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622

(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view

of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.

1993), our Supreme Court stated:

                                                  6
        Once it is shown by the moving party that there is no genuine issue of material fact,
        the nonmoving party must then demonstrate, by affidavits or discovery materials, that
        there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05
        [now Rule 56.06] provides that the nonmoving party cannot simply rely upon his
        pleadings but must set forth specific facts showing that there is a genuine issue of
        material fact for trial.

Id. at 211 (citations omitted).

        Summary judgment is only appropriate when the facts and the legal conclusions drawn from

the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.

1995). Since only questions of law are involved, there is no presumption of correctness regarding

a trial court's grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of

the trial court’s grant of summary judgment is de novo on the record before this Court. See Warren

v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

        In this case, the trial court found that Davis was handicapped within the meaning of the

Tennessee Handicap Act (“THA”), Tennessee Code Annotated § 8-50-103 (1993). However, since

the trial court rendered its decision in this case, the United States Supreme Court issued a decision

clarifying the definition of “disability” under the comparable federal disability discrimination

statutes.   See Sutton v. United Air Lines, Inc., 527 U.S. _____, 119 S.Ct. 2139 (1999).

Consequently, in light of Sutton, we must examine whether Davis would be considered

“handicapped” under the Tennessee statute.

        The pertinent provision of the THA provides:

                 There shall be no discrimination in the hiring, firing and other terms and
        conditions of employment of the state of Tennessee or any department, agency,
        institution or political subdivision of the state, or of any private employer, against
        any applicant for employment based solely upon any physical, mental or visual
        handicap of the applicant, unless such handicap to some degree prevents the
        applicant from performing the duties required by the employment sought or impairs
        the performance of the work involved.

Tenn. Code Ann. § 8-50-103(a) (1993). The THA does not define “handicap.” Therefore,

Tennessee courts look to three sources for interpretation of this term: (1) the Tennessee Human

Rights Act definition of handicap, codified at Tennessee Code Annotated § 4-21-102(9); (2) the

comparable federal statutes, the American with Disabilities Act, 42 U.S.C.A. § 12102(2), and the

Rehabilitation Act, 29 U.S.C.A. § 706(8); and (3) federal and state case law interpreting these

statutes. See Barnes v. Goodyear Tire & Rubber Co., No. 02A01-9707-CH-00157, 1998 WL

345449 (June 30, 1998) (perm to app granted Jan. 11, 1999).


                                                   7
        Davis argues that his diabetes constitutes a “handicap” under the definition of “handicap”

in the Tennessee Human Rights Act (“THRA”), Tennessee Code Annotated § 4-21-102(9). Under

this definition, "handicap" means:

        (i) A physical or mental impairment which substantially limits one (1) or more of
        such person's major life activities;
        (ii) A record of having such an impairment; or
        (iii) Being regarded as having such an impairment;

Tenn. Code Ann. § 4-21-102(9) (1998). “Major life activities” are defined as “[F]unctions such as

caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working.” Cecil v. Gibson, 820 S.W.2d 361, 364 (Tenn. App. 1991) (quoting 29

C.F.R. § 1613, 702 (c) (1990)). The definition of handicap in the THRA is virtually identical to the

federal definitions of disability found in the ADA and the Rehabilitation Act. Thus, cases

interpreting the federal statutes are particularly helpful to Tennessee courts interpreting the state’s

definition of handicap. Id.

        Davis asserts that he satisfies all three prongs of the handicap definition. Davis argues that

the first prong is satisfied because his diabetes is “a physical condition which substantially limits

major life activities,” noting that he must administer insulin shots, take oral medication, monitor his

condition, and comply with a strict diet and exercise program. Davis does not name the “major life

activity” which is substantially limited by his diabetes, and asserts that his diabetes did not prevent

him from performing his job duties. Davis maintains that the second prong is satisfied because he

has been diabetic for twenty years and thus has “a record” of having an impairment that substantially

limits a major life activity.

        Davis also argues that the evidence shows that he satisfies the third prong of the definition,

because CMS “regarded” him as having an impairment that substantially limits a major life activity.

Davis maintains that Bender’s comments about his diabetes showed that he “perceived that his

diabetic condition may have limited his work performance.”

        In response, CMS asserts that Davis has presented no proof that he is substantially limited

in a major life activity, but simply requests the Court to take judicial notice that diabetes

substantially limits a major life activity. Thus, CMS argues that Davis does not satisfy the definition

of “handicap.” We will consider this issue in light of Sutton v. United Airlines, Inc.




                                                  8
        In Sutton, two visually impaired twins with identical uncorrected vision of 20/200 or worse

filed suit against a commercial airline under the American with Disabilities Act (“ADA”). The

airline had rejected the twins for employment as pilots because they did not meet the airline’s

minimum vision requirements, which required uncorrected visual acuity of 20/100 or better. Both

the district court and the Tenth Circuit dismissed the plaintiffs’ complaint, finding that the plaintiffs

could not prove that they had a “disability” because they failed to show that they were substantially

limited in a major life activity such as working. The plaintiffs appealed to the United States

Supreme Court.

        On appeal, the pivotal issue in Sutton was “whether disability is to be determined with or

without reference to corrective measures” such as glasses or contact lenses. Sutton, 119 S. Ct. at

2146. The plaintiffs argued that the issue of whether a litigant’s impairment substantially limits a

major life activity should be determined without regard to corrective measures. They noted

regulations and interpretive guidelines promulgated by the Equal Employment Opportunity

Commission (“EEOC”) which stated that disability should be determined “without regard to

mitigating measures such as medicines, or assistive or prosthetic devices.” Id. at 2145 (quoting 29

C.F.R. pt. 1630, App. § 1630.2(j) (1998)).

        The Supreme Court rejected the approach in the EEOC Guidelines. Id. at 2146. It noted

that the Act requires a present, not a hypothetical, limitation on a major life activity, and found that

a person whose impairment is corrected by medication is not presently limited. Id. It also observed

that the determination of whether a person has a disability is an individualized inquiry. It found that

adopting the approach in the EEOC Guidelines ran counter to the required individualized inquiry,

and utilized diabetes as an example:

        For instance, under this view, courts would almost certainly find all diabetics to be
        disabled, because if they failed to monitor their blood sugar levels and administer
        insulin, they would almost certainly be substantially limited in one or more major life
        activities. A diabetic whose illness does not impair his or her daily activities would
        therefore be considered disabled simply because he or she has diabetes. Thus, the
        guidelines approach would create a system in which persons often must be treated




                                                   9
       as members of a group of people with similar impairments, rather than as individuals.
       This is contrary to both the letter and spirit of the ADA.

Id. at 2147. The Supreme Court also noted that the approach in the EEOC Guidelines would mean

that employers could not take into account negative side effects from the mitigating measures, such

as seizures from antipsychotic drugs. Id. The Court also found this “inconsistent with the

individualized approach of the ADA.” Id.

       The Court then described the appropriate inquiry to determine whether a person who uses

corrective measures has a “disability” under the first prong of the test, that is, a physical impairment

that substantially limits a major life activity. The Court stated that “one has a disability under

subsection A [the first prong] if, notwithstanding the use of a corrective device, that individual is

substantially limited in a major life activity.” Id. at 2149. Based on this analysis, the Court

concluded that the plaintiffs in Sutton were not disabled under the first prong of the definition of

“disability.” Id.

        The Court in Sutton then discussed the third prong of the definition of disability, under

which a person may be found disabled if he is “regarded as having” an impairment that substantially

limits a major life activity. The Court observed that a disability may be found if an employer

“mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major

life activities.” Id. at 2150. In Sutton, the plaintiffs argued that the defendant airline mistakenly

believed that their visual impairment, remedied with corrective measures, substantially limited them

in the major life activity of working, specifically, working as a global airline pilot. Id.

        The Court in Sutton observed that “there may be some conceptual difficulty in defining

‘major life activities’ to include work” because it leads to circular reasoning that if a person is

excluded because of an impairment from working with others, “ ‘then that exclusion constitutes an

impairment. . . .” Id. at 2151 (quoting Tr. of Oral Arg. in School Board of Nassau Co. v. Arline,

O. T. 1986 No. 85-1277, p. 15 (argument of Solicitor General)). The Court assumed, without

deciding, that working is a major life activity, but found nevertheless that the plaintiffs did not meet

the “regarded as” prong of the definition of disability. Id. It noted that even if “working” is

considered one of the major life activities, “[t]o be substantially limited in the major life activity of

working, . . . one must be precluded from more than one type of job, a specialized job, or a particular

job of choice.” Id. The Court found that the Sutton plaintiffs had alleged only that the airline



                                                  10
regarded their poor vision as precluding them from a position as “global airline pilot.” Id. The

Court stated: “Because the position of global airline pilot is a single job, this allegation does not

support the claim that respondent regards petitioners as having a substantially limiting impairment.”

Id. Therefore, the Court affirmed the dismissal of the plaintiffs’ claims. Id. at 2152.

       As noted above, Tennessee courts have found that federal case law construing the federal

discrimination statutes is “an important source of guidance.” Cecil v. Gibson, 820 S.W.2d 361, 364

(Tenn. App. 1991). Indeed, Tennessee courts “utilize[] federal decisions construing parallel

employment law. . . .” Pruett, 1997 WL 729260 at *12 (Tenn. App. Nov. 25, 1997). The reasoning

in Sutton is in line with the Tennessee Handicap Act and it is therefore appropriate to adopt its

analysis of the federal definition of disability in construing the THA.

       Utilizing the reasoning in Sutton, Davis would clearly not meet the first prong of the

definition of “handicap” set forth in the THRA. Davis notes that he must utilize corrective measures,

such as insulin shots and oral medication, but identifies no major life activity which is substantially

limited by his diabetes. As noted in Sutton, a “diabetic whose illness does not impair his . . . daily

activities” should not be considered disabled “simply because he . . . has diabetes.” Sutton, 119

S.Ct. at 2147. Under this analysis, Davis meets neither the first nor the second (“record of an

impairment”) prong of the definition of “handicap.”

       Davis argues that he meets the third prong of the definition of “handicap,” because CMS

“regarded” him as handicapped, that is, CMS regarded him as having an impairment that

substantially limited the major life activity of working. See Cecil, 820 S.W.2d at 366; Barnes v.

Goodyear Tire and Rubber Co., No. 02A01-9707-CH-00157, 1998 WL 345449 (Tenn App. June

20, 1998).

       As did the Court in Sutton, we acknowledge some conceptual difficulty in recognizing

“working” as a major life activity under the definition of “handicap,” in that it tends to lead to

circular reasoning. Sutton, 119 S. Ct. at 2151. However, even assuming that “working” is a major

life activity under Tennessee’s definition of “handicap,” Davis identifies no broad class of job that

he is “regarded as” being unable to perform. “When the major life activity under consideration is

that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs

allege that they are unable to work in a broad class of jobs.” Id. The Equal Employment




                                                  11
Commission has explained that “substantially limits” in reference to the major life activity of

working means:

        . . . significantly restricted in the ability to perform either a class of jobs or a broad
        range of jobs in various classes as compared to the average person having
        comparable training, skills, and abilities. The inability to perform a single, particular
        job does not constitute a substantial limitation in the major life activity of working.

Id. (quoting C.F.R. § 1630.2(j)(3)(i)). Accordingly, Davis must show that CMS regarded his

diabetes as an impairment that substantially limits him in “more than one type of job, a specialized

job, or a particular job choice.” Id. Davis must show that (1) CMS perceived Davis as having an

impairment, and that (2) CMS perceived the impairment as substantially limiting a major life

activity.

        Since this is an appeal from a grant of summary judgment, we must take the strongest

legitimate view of the evidence in favor of Davis. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.

1993). Davis disputes CMS’ assertion that he had trouble lifting computer monitors, that he had

trouble taking directions, that he was argumentative, opinionated, “know-it-all,” defensive or

disrespectful, or that he “did not want to do things by company policy.” Viewing the evidence in

the light most favorable to Davis, he asserts that Bender asked him about the persistent cough that

resulted from the oral medication Davis takes to aid his digestion. Davis acknowledges that Bender

told him that he did not feel that Davis could perform the requirements of the job for which he was

hired. Davis asserts, without factual foundation, his belief that CMS fired him because it was

concerned about the cost of insurance for a diabetic employee.

        Under the analysis in Sutton, CMS could legitimately consider negative side effects resulting

from the use of corrective measures, such as the side effects from medication. Sutton, 119 S. Ct.

at 2147. Davis acknowledges that his medication resulted in his having a persistent dry cough. It

is undisputed that talking on the telephone was a substantial part of the job duties of the position for

which Davis was hired.

        Moreover, while Davis asserts that the evidence demonstrates that CMS regarded his diabetes

as substantially limiting him in the major life activity of working, he identifies no broad class of jobs

in which he was regarded as unable to work. Viewing the evidence as a whole, in the light most

favorable to Davis, the fact-finder could not reasonably infer that CMS “mistakenly believe[d] that




                                                   12
an actual, nonlimiting impairment substantially limit[ed]” Davis, rendering him “unable to work in

a broad class of jobs.” Id. at 2150-51.

        Thus, Davis fails to meet any of the three prongs of the definition of “handicap” applicable

to claims under the Tennessee Handicap Act. On this basis, the trial court’s grant of summary

judgment to CMS on Davis’ claim of handicap discrimination was appropriate. This holding

pretermits the issue of whether Davis was fired solely because of his diabetes.

        Davis also contends that the trial court erred in granting summary judgment in favor of CMS

on his claims for negligent hiring or supervision of employees, retaliatory discharge, intentional and

negligent infliction of emotional distress and outrageous conduct. The trial court found that Davis

presented no evidence to support a cause of action for these claims. Other than conclusory

allegations that CMS’ conduct provides sufficient basis for these causes of action, Davis presents

no facts that would support a cause of action on any of these claims. The trial court is affirmed on

this issue.

        The decision of the trial court is affirmed. Costs are taxed to Appellant, for which execution

may issue if necessary.




                                       HOLLY KIRBY LILLARD, J.

CONCUR:



W. FRANK CRAWFORD, P. J., W.S.



DAVID R. FARMER, J.




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