                    United States Court of Appeals,

                           Eleventh Circuit.

                              No. 94-8413.

                Jesse J. LIGHTNING, Plaintiff-Appellee,

                                     v.

             ROADWAY EXPRESS, INC., Defendant-Appellant.

                             Aug. 16, 1995.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:91-00585-CV-JOF), J. Owen Forrester,
Judge.

Before HATCHETT and EDMONDSON, Circuit Judges, and GIBSON*, Senior
Circuit Judge.

     HATCHETT, Circuit Judge:

     The principal issue we discuss in this appeal is whether the

appellee's claim for intentional infliction of emotional distress,

a Georgia state law claim, is preempted under section 301 of the

Labor Management Relations Act.           We affirm the district court's

ruling that the claim is not preempted.

                                I. FACTS

     The district court made the findings of fact stated herein

after conducting a bench trial on appellee Jesse Lightning's claims

against   his   former   employer,   appellant    Roadway   Express,   Inc.

(Roadway).

     Lightning worked as a janitor for Roadway, a trucking company,

in its Atlanta terminal from February 1988 until his discharge in

August 1990.     Although Lightning initially served as an on-call

employee, he eventually received regular employee status.               The

     *
      Honorable John R. Gibson, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
International Brotherhood of Teamsters, Local Union No. 728 (the

Union) represents regular, non-management employees at Roadway's

Atlanta terminal.      The collective-bargaining agreement between

Roadway and the Union allows for progressive discipline, but it

also grants employees the right to grieve any discipline imposed

upon them.

     Lightning liked his job and earnestly tried to please his

superiors.   He worked slowly, however, and his job performance was

marginal.    In   attempting     to   document    Lightning's    poor   work

performance, Roadway supervisors photographed him from time to

time.   Roadway     management   counseled   or    disciplined   Lightning

several times for violating the collective-bargaining agreement and

company rules.    These violations included wasting time, failing to

follow instructions, and failing to wear steel-toed shoes.          Due to

these work-rule violations, Roadway discharged Lightning several

times following the progressive discipline process.         Until August

1990, Roadway reinstated Lightning after each discharge.

     Roadway supervisors subjected Lightning to verbal abuse on

numerous occasions.      For example, Roadway supervisors Mitchell

Lilly and Darrell Poole stood over Lightning while he cleaned under

a truck, and, in the presence of other employees, one of the

supervisors stated, "Look at that piece of shit down there."              On

another occasion, supervisor Buddy Looney called Lightning into his

office and stated, "We pay you really good for the shit you do,

which is nothing.    We hate you.     You don't belong here."      Another

supervisor told Lightning, "I don't know why you stay here;             none

of the managers like you."       Poole told Lightning that the company
needed to "get rid of his ass."        He also called Lightning a "sorry

son of a bitch" and told Lighting he did not know why Roadway had

hired him.      Lilly and another supervisor told Lightning to quit.

Lightning also received phone calls at home telling him to resign.

     Lightning endured two incidents where Roadway supervisors

acted even more egregiously.           One confrontation commenced when

supervisor Ike Franz told Lightning with regard to his sweeping:

"We pay you to do this?"     Lightning responded that he could perform

Franz and Poole's jobs better than those two men.               A few minutes

later, Poole arrived with other supervisors and, with his face six

inches   away    from   Lightning's,    spoke   to   Lighting    in   a   loud,

insulting manner.       Poole spat on Lightning.      He also stated, "Who

do you think you are?" and "You ain't no better than a janitor."

     On another occasion, Lightning told management employees that

Mark Keahon was the only supervisor who treated him with decency.

The following day, Keahon called Lightning into an office and

criticized him about work he had performed.            As the conversation

progressed, Lightning requested the presence of a union steward.

Keahon responded, "Fuck the union steward.           Get your sorry ass out

of here."    Lightning returned with a union steward and, during the

heated conversation that ensued, Keahon tried to hit Lightning.

     Toward the end of his employment, Lightning suffered from a

psychotic    episode     which   included   manifestations       of   paranoid

delusions.      This episode occurred on an evening when managers had

"chewed out" Lightning on three separate occasions.             Lightning was

hospitalized and received treatment at the Georgia Mental Health

Institute (GMHI) and another mental health facility.               The causes
for   this    episode     were   work-related,     though     other   stressors

contributed to Lightning's condition.              According to Lightning's

mother, he had not suffered previously from any mental problems or

disorders. Although Roadway officials had knowledge that Lightning

had been admitted to GMHI, they took no action to learn about his

condition     or   to   investigate   its   cause.        While   Lightning    was

hospitalized, Roadway sent him a registered letter documenting a

prior verbal counseling regarding his failure to wear steel-toed

shoes.

      After    Roadway    had    discharged     Lightning    in   August    1990,

supervisor Fred Dominick left a message on Lightning's telephone

answering machine stating, in essence, "Hey, we understand you want

your job back here at Roadway."             A great deal of laughter from

others accompanied Dominick's voice on the message.

      A former Roadway supervisor, Timothy Marshall, stated that

Looney said he was going to get Lightning if it was the last thing

he did.      Marshall also stated that when Roadway management had

difficulty getting rid of an unwanted employee, they undertook a

strategy to have that employee "written up" as much as possible.

Managers sought to provoke and demean the employee, and otherwise

try to persuade the employee to quit.           These efforts were known as

"mad-dogging."          Ronnie   Henson,    a   Roadway    employee   for     over

twenty-five years and an experienced union steward, characterized

management's treatment of Lightning as "severe" and stated that he

had never seen a worker similarly treated.

                           II. PROCEDURAL HISTORY

      In February 1991, Lightning brought this lawsuit against
Roadway in state court in Georgia alleging breach of contract

stemming from violations of the collective-bargaining agreement,

intentional infliction of emotional distress, and assault. Roadway

removed the action to the United States District Court for the

Northern District of Georgia.

     In August 1991, Roadway moved for summary judgment, arguing

that:      (1) federal labor law preempted Lightning's breach of

contract claim;       (2) federal labor law preempted Lightning's

intentional infliction of emotional distress claim;              (3) Roadway's

alleged    conduct   did   not    constitute    intentional   infliction    of

emotional distress as a matter of law;                 and (4) the Georgia

Workers'    Compensation    Act    provided     the   exclusive    remedy   for

Lightning's assault claim.          In March 1992, the district court

granted in part and denied in part Roadway's motion.              The district

court found that federal labor law preempted Lightning's contract

claim, but otherwise denied Roadway's motion.

     After conducting a non-jury trial on Lightning's remaining

claims in August 1993, the district court entered judgment for

Lightning.     The court awarded $33,720 in damages for intentional

infliction of emotional distress ($25,000 for pain and suffering

and $8,720 in medical expenses), nominal damages for assault, and

$100,000 in punitive damages.         This appeal followed.

                             III. CONTENTIONS

     Roadway     contends    that     the      resolution   of    Lightning's

intentional infliction of emotional distress claim depends upon

interpretation of the collective-bargaining agreement, and thus

section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C.
§ 185, preempts that claim. Roadway also argues that Lightning has

failed to allege conduct sufficient to support an intentional

infliction of emotional distress claim under Georgia law.                     The

company also asserts that the district court clearly erred in

finding that Keahon assaulted Lightning.               Additionally, Roadway

contends that the Georgia Workers' Compensation Act provides the

exclusive remedy for Lightning's injury.             Finally, Roadway argues

that the district court's award of punitive damages was excessive

as a matter of law.

      Lightning    responds    to   Roadway's       contentions    as    follows.

First, the resolution of his intentional infliction of emotional

distress claim does not require an interpretation of the labor

contract, and thus section 301 of the LMRA does not preempt that

claim.    Second, Roadway's actions were extreme and outrageous and

therefore    sufficient   to    establish       a    claim   for    intentional

infliction    of   emotional   distress   under       Georgia     law.     Third,

substantial evidence existed for the district court to find that

Keahon assaulted Lightning. Fourth, Lightning's emotional distress

does not constitute a compensable "injury" under the Georgia

Workers' Compensation Act.       Finally, the district court's award of

punitive damages was reasonable.

                               IV. DISCUSSION

A.   Section 301 Preemption and         the     Intentional     Infliction     of
      Emotional Distress Claim

         Whether section 301 of the LMRA preempts a state-law claim

constitutes a question of law subject to               de novo review.        See

Galvez v. Kuhn, 933 F.2d 773, 776 (9th Cir.1991).

      Section 301(a) of the LMRA provides:
       Suits for violation of contracts between an employer and a
       labor organization representing employees in an industry
       affecting commerce ... may be brought in any district court of
       the United States having jurisdiction of the parties, without
       respect to the amount in controversy or without regard to the
       citizenship of the parties.

29 U.S.C. § 185(a).             Section 301 not only grants federal courts

jurisdiction           over            employment          disputes        involving

collective-bargaining agreements, but also expresses a federal

policy "that the substantive law to apply in suits under § 301(a)

is federal law which the courts must fashion from the policy of our

national labor laws."            Textile Workers v. Lincoln Mills, 353 U.S.

448, 456, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957).

        In Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399,

108    S.Ct.   1877,      100    L.Ed.2d      410    (1988),    the    Supreme   Court

reiterated the principles of the section 301 preemption doctrine:

       [I]f the resolution of a state-law claim depends upon the
       meaning of a collective bargaining agreement, the application
       of state law (which might lead to inconsistent results since
       there could be as many state-law principles as there are
       States)     is    pre-empted     and    federal     labor-law
       principles—necessarily uniform throughout the nation—must be
       employed to resolve the dispute.

Lingle, 486 U.S. at 405-06, 108 S.Ct. at 1881;                        see also Allis-

Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 1912,

85 L.Ed.2d 206 (1985) (preemption is justified when the "evaluation

of the tort claim is inextricably intertwined with consideration of

the    terms   of   the    labor       contract").      The    preemption    doctrine

"ensure[s]      uniform         interpretation        of      collective-bargaining

agreements, and thus ... promote[s] the peaceable, consistent

resolution of labor-management disputes." Lingle, 486 U.S. at 404,

108 S.Ct. at 1880.         Therefore, "§ 301 pre-emption merely ensures

that     federal     law        will     be    the     basis     for     interpreting
collective-bargaining       agreements,   and   says   nothing     about   the

substantive rights a State may provide to workers when adjudication

of those rights does not depend upon the interpretation of such

agreements."    Lingle, 486 U.S. at 409, 108 S.Ct. at 1883.          Indeed,

" "not every dispute ... tangentially involving a provision of a

collective-bargaining agreement, is pre-empted by § 301[.]' "

Lingle, 486 U.S. at 413 n. 12, 108 S.Ct. at 1885 n. 12 (quoting

Lueck, 471 U.S. at 211, 105 S.Ct. at 1911).

      In determining whether Lightning's state tort law claim for

intentional     infliction       of    emotional       distress     requires

interpretation of the terms of the collective-bargaining agreement,

we first look to the elements of the state-law claim.             See Lingle,

486 U.S. at 406-07, 108 S.Ct. at 1881-82.          To succeed on a claim

for intentional infliction of emotional distress in Georgia, a

plaintiff must show:        (1) the defendant's conduct was extreme and

outrageous;    (2) the defendant acted intentionally or recklessly;

(3) the defendant's conduct caused emotional distress; and (4) the

resulting emotional distress was severe.        Yarbray v. Southern Bell

Tel. & Tel. Co., 261 Ga. 703, 409 S.E.2d 835, 837 (1991).

      Roadway contends that Lightning's claim is inextricably

intertwined    with   the    collective-bargaining     agreement    and    thus

preempted by section 301.        Specifically, the company argues that

this court must interpret the labor contract in order to assess the

reasonableness of Roadway's conduct. We agree that an "analysis of

an employee's intentional infliction of emotional distress claim

may well require a court to refer to and interpret the contract

provisions governing the terms and conditions of her employment."
Douglas v. American Info. Technologies Corp., 877 F.2d 565, 571

(7th    Cir.1989).        Nonetheless,      "the     "extreme     and    outrageous'

character of certain sorts of employer conduct may be evident

without       reference   to    the     terms   of    a    collective    bargaining

agreement...."       Douglas, 877 F.2d at 571.             This is such a case.

            Contrary to Roadway's assertions, Lightning's intentional

infliction of emotional distress claim does not concern the terms

and conditions of his employment, but rather the severe abuse he

endured from Roadway's supervisors.**                As outlined above, Roadway

management       verbally      abused    Lightning        on   several    occasions.

Moreover, supervisor Poole spat on Lightning, and supervisor Keahon

assaulted him.       Thus, Lightning's claim "revolve[s] around conduct

by his employer that is not even arguably sanctioned by the labor

contract."       Keehr v. Consolidated Freightways of Del., Inc.,                825

F.2d 133, 138 n. 6 (7th Cir.1987).              As a result, the resolution of

Lightning's tort claim does not implicate the provisions of the


       **
      All of the cases that Roadway cites in support of its
preemption argument involved controversies relating to the terms
and conditions of employment and thus required interpretation of
the relevant collective-bargaining agreements. See McCormick v.
AT & T Technologies, Inc., 934 F.2d 531, 534-37 (4th Cir.1991),
cert. denied, 502 U.S. 1048, 112 S.Ct. 912, 116 L.Ed.2d 813
(1992); Cook v. Lindsay Olive Growers, 911 F.2d 233, 239-40 (9th
Cir.1990); Douglas, 877 F.2d at 569-573; Chmiel v. Beverly
Wilshire Hotel Co., 873 F.2d 1283, 1285-1286 (9th Cir.1989);
Newberry v. Pacific Racing Ass'n, 854 F.2d 1142, 1148-50 (9th
Cir.1988); Miller v. AT & T Network Systems, 850 F.2d 543, 550-
51 (9th Cir.1988); Young v. Anthony's Fish Grottos, Inc., 830
F.2d 993, 996, 1002 (9th Cir.1987); Truex v. Garrett
Freightlines, Inc., 784 F.2d 1347, 1350-52 (9th Cir.1985);
Choate v. Louisville & Nashville R.R. Co., 715 F.2d 369, 370-72
(7th Cir.1983). Accordingly, we do not find these authorities
persuasive as applied to the facts in this case. We remain
mindful that "[t]he full scope of the pre-emptive effect of
federal labor-contract law [is] to be fleshed out on a
case-by-case basis." Lueck, 471 U.S. at 220, 105 S.Ct. at 1915.
collective-bargaining agreement. See Knafel v. Pepsi-Cola Bottlers

of Akron, Inc., 899 F.2d 1473, 1483 (6th Cir.1990) ("Knafel's

alleged emotional distress was ... of the abuse she claims to have

endured while employed.          This tort claim ... does not require an

interpretation of the labor contract.").             Therefore, section 301

does not preempt Lightning's intentional infliction of emotional

distress claim.

B. Judgment on the Intentional Infliction of Emotional Distress
     Claim

        Roadway asserts that the district court erred in finding that

the company's conduct was sufficiently outrageous to support a

claim   for    intentional      infliction   of   emotional   distress   under

Georgia law.       "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."              Yarbray,

409 S.E.2d at 838.

        As stated above, in order to prevail in Georgia on a claim of

intentional infliction of emotional distress, a plaintiff must

establish that:       (1) the defendant's conduct was extreme and

outrageous;      (2) the defendant acted intentionally or recklessly;

(3) the defendant's conduct caused emotional distress; and (4) the

resulting emotional distress was severe.             Yarbray, 409 S.E.2d at

837.    In order to sustain this cause of action, the defendant's

conduct, in light of the totality of the circumstances, "must have

been    so    terrifying   or    insulting   as   naturally   to   humiliate,

embarrass or frighten the plaintiff."             Moses v. Prudential Ins.

Co., 187 Ga.App. 222, 369 S.E.2d 541, 542-44 (1988).               Moreover,

"the existence of a special relationship in which one person has
control over another, as in the employer-employee relationship, may

produce a character of outrageousness that otherwise might not

exist."    Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga.App. 227, 335

S.E.2d 445, 448 (1985).        In fact,

     [t]he workplace is not a free zone in which the duty not to
     engage in willfully and wantonly causing emotional distress
     through the use of abusive or obscene language does not exist.
     Actually, by its very nature, it provides an environment more
     prone to such occurrences because it provides a captive victim
     who may fear reprisal for complaining, so that the injury is
     exacerbated by repetition, and it presents a hierarchy of
     structured relationships which cannot easily be avoided. The
     opportunity for commission of the tort is more frequently
     presented in the workplace....

Coleman v. Housing Auth. of Americus, 191 Ga.App. 166, 381 S.E.2d

303, 306 (1989).

     We conclude, considering the totality of the circumstances,

that the district court properly granted judgment for Lightning on

his intentional infliction of emotional distress claim.               We note

that Georgia courts have upheld awards under this theory for

conduct far less outrageous than Roadway's. See, e.g., Anderson v.

Chatham, 190 Ga.App. 559, 379 S.E.2d 793, 799-800 (1989).

C. Findings of Fact on the Assault Claim

     Roadway also alleges that the district court erred in finding

that Lightning "reasonably apprehended that he would be struck by

Mr. Keahon."      This court "will hold a finding of fact clearly

erroneous if the record lacks substantial evidence to support it."

Thelma    C.   Raley,   Inc.   v.   Kleppe,   867   F.2d   1326,   1328   (11th

Cir.1989).

     The record possesses substantial evidence to support the

district court's finding on this issue.             Lightning testified that

Keahon "jumped up and tried to hit me."             The district court found
Lightning credible and was not troubled by Lightning's failure to

mention      Keahon's     attempt       to    hit     him    when     reporting     the

confrontation to a colleague. Keahon did not testify at trial, and

the   district    court    (reasonably,         we   believe)       drew   a   negative

inference from his failure to do so.                  Two people present in the

room during the incident testified that Keahon did not attempt to

strike Lightning.        The district court, however, found one of those

men, Roy Sweatman, "wholly uncredible." Warren Wilhoite, a witness

not present in the room during the incident, testified that no one

threw a punch during the encounter.              The district court found that

"it   was    difficult    ...   to   believe        that    [Wilhoite]     could   have

observed everything."           Wilhoite also testified that Scott Heard

restrained Keahon during the incident, a fact that tends to support

Lightning's version of events.               In sum, the district court did not

clearly err in finding that Keahon assaulted Lightning.

D. Applicability of the Georgia Workers' Compensation Act

       Roadway next contends that the Georgia Workers' Compensation

Act   (the    Act)   provides     the    exclusive         remedy   for    any   injury

Lightning suffered as a result of Roadway's intentional infliction

of emotional distress and assault.                  Accordingly, Roadway argues,

the district court should not have entertained Lightning's tort

claims.

      The Act states, in relevant part, that "[t]he rights and the

remedies granted to an employee by this chapter shall exclude all

other rights and remedies of such employee ... at common law or

otherwise, on account of ... injury."                       O.C.G.A. § 34-9-11(a)

(1992).      The Act provides the following definition of injury:                     "
"Injury' or "personal injury' means only injury by accident arising

out of and in the course of the employment...."            O.C.G.A. § 34-9-

1(4) (1992 & 1994 Supp.).        Georgia courts have consistently held

that "psychic trauma precipitated by psychic stimulus" (as opposed

to physical injury) does not constitute an "injury" under the Act.

Hanson Buick Inc. v. Chatham, 163 Ga.App. 127, 292 S.E.2d 428, 428-

30 (1982);    see also Oliver v. Wal-Mart Stores, Inc., 209 Ga.App.

703, 434 S.E.2d 500, 500-01 (1993);         W.W. Fowler Oil Co. v. Hamby,

192 Ga.App. 422, 385 S.E.2d 106, 106-07 (1989).               Consequently,

Roadway's claim that the Act provides the exclusive means for

Lightning's remedy lacks merit.

E. Propriety of the Punitive Damages Award

      Finally, Roadway argues that the district court's award of

punitive damages was excessive as a matter of law.           Under Georgia

law, "[p]unitive damages may be awarded only in such tort actions

in which it is proven by clear and convincing evidence that the

defendant's   actions   showed    willful    misconduct,    malice,   fraud,

wantonness, oppression, or that entire want of care which would

raise the presumption of conscious indifference to consequences."

O.C.G.A. § 51-12-5.1(b) (1982 & 1994 Supp.). Moreover, "[p]unitive

damages shall be awarded not as compensation to a plaintiff but

solely to punish, penalize, or deter a defendant."           O.C.G.A. § 51-

12-5.1(c) (1982 & 1994 Supp.).         The district court found that

"punitive damages are justified on the facts and are necessary to

deter future wrongdoing."

      In determining the reasonableness of an award of punitive

damages, courts should consider whether: (1) the misconduct caused
personal injury or merely damage to property;      (2) the actor's

misconduct was active or passive;   and (3) a rational relationship

exists between the misconduct and the amount of the award.     See

Colonial Pipeline Co. v. Brown, 258 Ga. 115, 365 S.E.2d 827, 833

(plurality opinion), appeal dismissed, 488 U.S. 805, 109 S.Ct. 36,

102 L.Ed.2d 15 (1988).   Applying these factors, we conclude that

the district court's award of $100,000 was reasonable.   The active

misconduct of Roadway's supervisors caused Lightning to suffer a

mental disorder that required his hospitalization. Moreover, given

Roadway's egregious conduct, and the actual damages that Lightning

endured, we conclude that a rational relationship exists between

the misconduct at issue and the amount of the award.   Accordingly,

we reject Roadway's contention that the district court's punitive

damages award was excessive.

                          V. CONCLUSION

     For the foregoing reasons, we affirm the judgment of the

district court.
     AFFIRMED.
