# FILED September 29, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE

JOHN DAVIS, ) ) Plaintiff/Appella

nt, ) Davidson Circuit No. 97C-1823

) v. ) ) COMPUTER MAINTE NANCE ) Appeal No. 01A01-9809-CV-00459 SERVICE, INC., ) ) Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT OF DAVI DSON 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

HOLL Y KIR BY LI LLA RD, J.

CONCURS: W. FRANK CRAWFORD, P. J., W.S. DAVI D R. FAR

MER, J.OPINION

This is an employment disability d iscrimination cas e. The plaintiff e

mployee filed suit against the defendant e

mployer, 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

summar y judgmen t in favor of the defendant employer, finding that the plaintiff proffered insufficient

evidence that his ter mination was wrong fully based on his ha

ndicap. We aff

irm, 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/Appella

nt, 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 wa s 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 ta

ke multiple daily ins

ulin 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 sto red his insulin in the refrigerator located in the CMS break room. On Jul

y 3, 1996, after a meeting with a CMS supervisor , CMS fired Davis. D

avis 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 nam ing CMS as the sole defendant. The complaint allegedthat at the meeting at which Davis wa s termi nated, the CMS supervisor who terminated Davis, David Bender (“Bender”), voiced concerns about Davis’ diab

etes. Bender also allegedly had

concerns about other employees sharing the same work area with Davis and d id not believe that Davis could perform the

tasks required f

or his position. Dav

is maintained that CM

S violated th

e Tennessee Handicap Act (“ THA”), codifie

d at Tennessee Co

de Annotated § 8-5 0-103. Davis also asserted claims for negligent hiring or supervision, intentional and negligent infliction of emotional distress, retaliatory discharge, and outrageous conduct. In thecomplaint, Davis so ught $500,000 in compensation for impairment of his earning capacity, loss of future income, loss of back pay, loss of medical insurancebenefits, loss of life insurance coverage, loss of opportunity for advancement and “serious humiliation and embarrassment causing severe mental angui sh.” The co mplaint sought2

$1,000,000 in punitive damages for the alleged intentional, willfu

l, and malicious act

ions of CMS, as well as attorney’s fees. The answer filed by CM

S admitted that any s

tatements made by

a CMS supervisor wo

uld be imputed to

CMS through the doctrine of respondeat superior, but denied that Bender made any discriminatory remarks to Davis. CMS denied a ll 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 jo b for which he was hired. After discovery was conducted, CMS filed a motion for summary judgment.

The summary judgmentmotion asserted tha t Davis was fired

because he “had prob lems lifting and moving the computer inventory and was insubordinate and ar rogan t.” CMS denied that it terminated Davis solelybecause of his dia

bete s. In t he alternative, CMS claimed that it was entitled to summary judgmentbecause

Davis was not “ha

ndicapped” and b

ecause 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 l aw filed in suppor

t of its motion for summ

ary 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 firedDavis 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 t

hat 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’ sum mary judgment motion, Davis asserted that CMS’ proffered

reasons for his termination w ere not legit imate since he was not told these reasons at the time of termination. Davis also asserted that he adequately performed the required job duties, including3

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 “han dicapped” under the Tennessee st

atute because h

e must administer

daily insulin shots an

d must comply with a pr

oper diet and exe

rcis e program. He also asserted that the alleged s

tate ment s made by Bender at the meeting at which he was fired demonstrated that CMS regarded him as impaired. In opposition to CMS’ motio n for summary judgm

ent, Davis filed his af

fidavit, in which he stated that his diabetes did not interfere with the performanc e of his job duties. He denied being disrespectful or having trouble taking direction from CMS supervisors. In Davis’ deposition,

he testified abou

t his initial i nterview with CMS employee Janet Baxter (“Baxter”). Davis testified tha t he told Baxter abo

ut his diabetes, an

d that, because o

f the diabetes, he would need insura

nce coverage.

Davis said that Bax

ter assured him

that, if he currently had insurance, there would be no p roblem 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 h ad a 120 day proba

tion period in which

he could be fired for performance

reasons. Davis testified tha t, at the time he wa

s hired, he did not f

eel that his diabe

tes 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 Be

nder were the on

ly persons presen

t. Davis said that Bender commented on Davis’ insulin i n 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 accepta

ble 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, n

or was he told that h

is diabetes interf

ered with his job performance. Davis denied4

that he almost dropped a monitor. When asked why he thought he was discriminated against, Davis stated, The reason I think I was discriminated aga inst 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.” D avis testified in his dep osition that, after

he was terminate

d by CMS, he had no he alth insurance until the summer of 1997 when he obtained insurance throug

h TennCare. Duri

ng the time in which he was uninsured, Davis calculated that he incurred approximately $12,000 i n medica l bills. In support of its motion for sum mary judgment, CMS relied on the depositions of

CMS employees allegedly showing that it had legitim

ate n on-discriminator

y reasons for fir

ing 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 Dav is 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’ freq uent cough and he

became concer

ned. Bender deni

ed 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 placi ng the monitors in boxes as was required, but felt that Davis looked unsteady. B ender said it was i mmediately

obvious to

him that “lifting was going to be a very serious limitation there.” Bender stated, ho wever, 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 Da

vis to meet with him, he o riginally intended

only to ask Davis about the cough, but when Da vis became defe

nsive, agitated, a

nd disrespectful

, he fired him. Bender said tha

t the meeting: endedvery 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 ta lking to me this way, y

es, I’m going to re

lease you, you know. He go

t up, left. Ben der stated that it was h

is decision to fire

Davis and that no on

e at CMS directe

d him to fir

e Davis.5

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 bothof these concer

ns. Mr. Vire also testified that Davis had trou ble taking direct

ion from his directs upervisor, 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 diabe tic until he was interviewed by the EEOC. Dianne Vire, the CEO of CMS and Stephen Vir

e’s spouse, testified that Pom Norris, the employee who trained Davis , told her that Davis “was very argum

entative, opiniona

ted, 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. M

rs. Vire stated th

at 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’ sec ond day o f work, he did not receive the incoming parts in a timely ma nner as the job re

quired. She thought

Davis seemed like

a “know-itall” because he did not take notes when she was training him. She did not think he was capable of d oing the jo b at CMS because he spent all his time ordering parts instead of receiving them. She also not ed that Da vis “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 t alking on the phone. Norris did n ot see Davis strugg

le and almost drop a

monitor. Norris testified that she did not call CMS’ insurance agent to determine t he cost of health insurance for Davis. Based on this record, the trial court considered CMS’ motion for summary judgment. The6

trial court found that the record contained no evidence to support Davis’ claims for retaliatory discharge, outrageous condu ct, intentional o

r ne gligent infliction of emotional distress, negligent hiring or supervision, or punitive damages. Therefor e, the tri al 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 Tenne

ssee Code Annotat

ed, but that Davis p

roffered insuf

ficient evidenc

e that CMS firedhim 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 co nclude 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 dire

ct or circumstant

ial evidence of d

iscriminatory ani

mus on th e pa rt 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 grantedCMS’ motion for summary judgment on the handicap di

scrimination clai

m as well. On appeal, Davis argues that summary judgment was inappropria te because ther

e is a genuine issue of material

fact as to whethe

r 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 ret al iatory discharge, outr ageous conduct, intentional or negligent infliction of emotional distress, negligent hiring o r supervision of emp

loyees, and punitiv

e 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 theburden of demonstrating that no genuine i ssue of material f

act 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 a ll reaso nable inferences in favor of that part y, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W .2d 20 8 (Tenn. 1993), our Supreme Court stated:7

Once it is shown by th

e moving party

that there is

no genuine issue of material fac t, the nonmovin g party m ust then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact di spute to warrant a trial. In this regard, Rule 56.05 [now Ru le 56.06] provides that the nonmoving party cannot simply rely upon h i s pleadings but must set forth spe cific facts show

in g th at there is a genuine issue of material fact f

or 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 c onclusion. See Car

vell 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 be fore 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 mea ning o f 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 compara ble fe deral disability discrimination statutes. See Sutto n v. United Air Lines, Inc. , 527 U.S. _____, 119 S.Ct. 2139 (1999). Consequently, in light of Sutton , we must exam ine wh ether Davis would be considered “handicapped” under the Tennessee statute. The pertinent pro

vision of the THA pr

ovides: There shall be no discrim ination in the hiring, firing and other terms and conditions of employment of the state of Tennessee or an y departme

nt, agency, institution or political subdivision of the state, or of any private empl oyer, again st any applicant for employment based solely upon any physical , men tal 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 doe s not define “handicap.” Therefore, Tennessee c ourts look to three sources for inte

rpretation of this

term: (1) the Ten

nessee Huma

n Rights Act definition of h andicap, codifie

d at Tennessee Co

de Annotated § 4-2 1-102(9); (2) th e comparable

federal statutes, the American with Disabilities Act, 42 U.S.C.A. § 1210 2(2) , and the Rehabilitation Act, 29 U.S.C.A. § 70 6(8); and (3) fe

deral and state c

ase law interpre

ting these statutes . See B arnes v. Goodyear Tire & Rubber Co. , No. 02A01-9707-CH-00157, 1998 WL 345449 (June 30, 1998) (

perm to app granted Jan. 11, 1999 ).8

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, "ha

ndicap" means: (i) A physical or mental impa irment which substantially limits one (1) or more of such person's majo

r life activities; (ii) A record of having such an impairment; or (iii) Being regar

ded 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, p

erforming manua

l tasks, walking, se

eing, hearing, sp

eaking, breath

ing , 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 R ehabilitat ion Act. Thus, cases interpreting the federalstatutes are par ticularly 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 pr ong is satisfied be cause his diabete

s is “a physical co

ndition which substa

ntially limits major life activities,” noting that he must administer insulin shots, take oral medication, monitor his condition, and comply with a str ict diet and exer

cise program. Davis does not name the “major life activity” which is substantia lly limited by his diab

etes, and assert

s that his diabetes did not

prevent him from performing h

is 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 impairme

nt that substantiall

y 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 d iabetes showed th

at he “perceive

d 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 maj or life a ctivity, but simply requests the Court to take judicial notice that diabetes substantially

limits a major life a

ctivity. Thus, CMSargues that Davis does not satisfy the definition of “handicap.” We will consider this issue in light of Sutton v. United Airlines, Inc.9

In Sutton , two visually impair ed twins with identic

al uncorrected

vision of 20/200 or w

orse filed suit against a comm e rcial airline under the American with Disabilities Act (“ADA”). The airline had rejected the

twins for employme

nt as pilo ts because the y did not meet the airline’s minimum vision requireme nts, which requir

ed uncorrecte

d visual acuity of 2

0/100 or better. Bo

th the district court and

the Tenth Circuit dismissed the plaintiffs’ complaint, finding that the plaintiffs could notprove that they had a “disability” because they failed to show that

they were substa

ntially limited in a major life activity such a s working. The plaintiffs appealed to the United States Supreme Court. On appeal, the pi votal iss ue 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 litigan

t’s impairment subs

tantially limits a major life activity should be determined withou t rega rd to corrective measures. They noted regulations an d inter pretive guideline s promulgated by the

Equal Employment Op portunity Commission (“EEOC”) which s tated that disabili

ty should be determ

ined “without reg

ard 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 rejec ted t he 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 alsoobserved 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, unde

r this view, courts

would almost certa

inly find all diabetics to be disabled, because if they failed to monitor their bloo d sugar le vels 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 thereforebe considered disabled simply because he or she has diabetes. Thus , the guidelines approach would create a system in whi ch persons often must be treated10

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 EEOCGuidelines 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 t h e individualized approach of the ADA.” Id. The Court then describ

ed the appropria

te inquiry to deter

mi ne wheth er a person who uses correctivemeasures 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 di sability under subsection A [the first prong ] if, notwithstandi

ng the use of a cor

rective device

, that individual is substantially

limited in a major lif

e activity.” Id. at 2149. Based on this analysis, the Court concluded

that the plaintiffs in Sutton were not dis abled under the first prong of the definition of “disability.” Id. The Court in Sutton then discussed th e third prong of the definition of disability, under which a person may be found disabled if he is “regard ed as having” an i

mpairment that subs

tantially 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 a ctivities.” Id

. at 2150. In Sutton , the plaintiffs ar gued that the defe

ndant airline mista

kenly believedthat 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 S utton observed that “there may be some conceptual difficulty in defining ‘major life activities’ t

o include work” be

cause it l eads to circular reas oning that if a per

son 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 C ourt 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 foun d that the Sutton plaintiffs had alleged only that the airline11

regarded their poor v ision as precluding them from a position as “global airline pilot.” Id. The Courtstated: “ 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 court s 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 cou rts “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 Te nnessee Handica

p Act and it is therefore appropriate to a dopt 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 THR A. Davis notes that

he must utilize correct

ive measures, such as insulin shots and oral medication, but identifies no major life acti vity which is substan

tially limited by his diabetes. As noted in Sutton , a “diabetic whose illness does not im pair his .

. . daily activities”

should not be considered disabled “simply because h e . . . has di abetes.” 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 def ini tion 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 difficul ty in recognizing “working” as a major life a ctivity under the d efinition of “han

dicap,” in that it te

nds 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 ac

tivity under consid

eration is that of worki ng, the sta

tutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege that the y are unable to work in a broad class of jobs.” Id. The Equal Employment12

Commission has explained that “substantially limits” in refe rence 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 per son havin g 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 tha t CMS regar ded his diabetes as an impairment that sub stantially 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, an d that (2) CMS perceived the impairment as substantially limiting a major life activity. Sin ce this is an appeal f rom a grant of summa

ry judgment, we mus

t take the stronges t 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 comput er monitors, that he had tro uble taking directions, that he was argumentative, opinionated, “know-it-all,” defensive o r disrespectful,

or that he “did

not want to do things by company po licy.” Viewing the

evidence in the light most favorabl

e to Davis, he asse

rts that Bender asked him about the persistent cough that resultedfrom the oral medi cation Davis take

s to aid his digestion. Davis acknowledges that Bender told him that he did notfeel that Davis could perform the requirements of the job for which he was hired. Davis asserts, without factual foundation, his belief that CMS fired h im because it was concerned about the cost of insurance for a diabetic employee. Under t he analysis in Su tton , CMS could legitimately consider negative side effects resulting from the use of corre

cti ve me asures, such as the side effects from medication. Sutton , 119 S. Ct. at 2147. Davis ack

nowledges that his

medication result

ed 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 asser ts that the evidence demonstrate s 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] that13

an actual, nonlimiting

impairment substan

tially 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” appli

cable to claims under the Ten nessee Handicap Act. On this basis, the trial court’s grant of summary judgme nt to CMS o n 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 outra geous conduct.The trial court f ound that Davis presented no evidence to sup

port a caus e of action for these claims. Other than conclusory allegations t hat CMS’ conduct pr ovides sufficien

t basis for these c

auses of action, D

avis presents

no facts that would support a cause of action on any of these clai

ms. The trial cour

t 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 CRAW

FORD, P. J., W.

S.

DAVID R. FARMER, J.