Richard Bowers and Linda Bowers brought suit against Southern Railway Company, Mr. Bowers’ employer, and his supervisors David Estep and Donald Adams, seeking to recover compensatory and punitive damages for intentional infliction of emotional distress, violation of provisions of the Georgia Equal Employment for the Handicapped Code, OCGA § 34-6A-1 et seq. (“GEEHC”), and loss of consortium. The trial court granted the defendants’ motion for summary judg *616 ment, and the plaintiffs appeal.
Appellant Richard Bowers has been employed by appellee Southern Railway for approximately 30 years, most recently as the assistant manager of service control in Atlanta under the supervision of appellees Estep and Adams. In 1990 Bowers began experiencing severe claustrophobia and depression, which he contends constitutes a “handicap” under the GEEHC. Bowers alleged in the complaint that Estep and Adams knew of his condition and intentionally harassed, threatened, intimidated, and belittled him and maliciously changed conditions of his job, causing him to take a leave of absence (with full pay and benefits) and be admitted to a psychiatric clinic. Bowers also alleged that this conduct constituted a violation of the GEEHC, OCGA § 34-6A-4 (a). Bowers further contended in an amendment to the complaint that appellee railroad’s denial of his bonus in late 1990 after he filed this handicap discrimination claim was a retaliatory act prohibited by OCGA § 34-6A-5. Both appellants also alleged a claim for loss of consortium as a consequence of these acts of appellees.
1. We address initially appellees’ contention below and in this court that the Federal Employers’ Liability Act, 45 USC §§ 51-60 (“FELA”), provides the exclusive remedy for appellants’ claims. Although the trial court discussed the applicability of FELA in general terms, the court effectively pretermitted the exclusivity issue, basing the summary judgment ruling on the merits of the claims as asserted under Georgia law. While this approach was not raised by appellants in their enumerations of error or challenged by appellees by way of cross appeal, the exclusivity issue is a question of the subject matter jurisdiction of the court under FELA.
Lewy v. Southern Pacific Transp. Co.,
799 F2d 1281, 1286 (9th Cir. 1986). Since a judgment on a matter not within the court’s jurisdiction is void at all times and may not be waived,
Champion v. Rakes,
It is well established that in enacting FELA, Congress superseded state law remedies in the subject area covered by FELA and provided the exclusive remedy for employees of common carriers injured by the negligence of their employers. E.g.,
South Buffalo R. Co. v. Ahern,
2. In
Atchinson &c. R. Co. v. Buell,
Given the holding in Buell and the lack of a definitive ruling from the United States Supreme Court or the Eleventh Circuit, we elect to follow the ad hoc approach employed by the Fifth Circuit in Netto and the First Circuit in Moody: we do not decide "whether a plaintiff may assert a claim under FELA for intentional infliction of emotional distress because even if we allowed such a claim appellant Richard Bowers has failed to assert a claim that would entitle him to *618 relief.
Looking to common law developments for guidance,
Urie v. Thompson,
Richard Bowers alleged that appellees Adams and Estep threatened, humiliated, and intimidated him in the course of their inquiries concerning his emotional condition and that they maliciously transferred him to another position. We agree with the trial court that these allegations do not set forth a claim for intentional infliction of emotional distress as a matter of law. Adams and Estep were authorized as appellant’s supervisors to inquire into his condition and to make any necessary adjustments in his work schedule or environment to accommodate his condition. Such actions, even if done in a manner that embarrassed or humiliated appellant, cannot be characterized as the type of shocking and outrageous behavior necessary for a recovery of damages. See
Netto,
supra at 1214-1215; see also
Kornegay v. Mundy,
We do agree with appellants, however, that because appellees failed to file any depositions, affidavits, or other testimony in support of their motion for summary judgment on this count, the proper rul
*619
ing would be to enter judgment on the pleadings. Compare OCGA § 9-11-12 (c) with OCGA § 9-11-56 (c); see generally
Bergen v. Martindale-Hubbell, Inc.,
3. We next consider the viability of appellant Richard Bowers’ claims asserted under the GEEHC. Unlike his claim for intentional infliction of emotional distress, his discrimination allegations aré based not upon a common law tort but upon violation of a state statute. FELA was enacted not to create new substantive torts, but to protect railway workers from common law torts. Griggs v. Nat. R. Passenger Corp., 900 F2d 74, 75 (6th Cir. 1990). Although the complaint includes the necessary elements of a FELA claim in that it alleges injury by the employer in the scope of employment, the type of injury Richard Bowers asserts—discrimination on the basis of an alleged handicap—is not the type of injury FELA was designed to address. See Smolsky v. Consolidated Rail Corp., 780 FSupp. 283, 286-288 (E.D. Pa. 1991); Pakledinaz v. Consolidated Rail Corp., 737 FSupp. 47, 48 (E.D. Mich. 1990). Accordingly, FELA does not provide the exclusive remedy, and he may pursue his state handicap discrimination action along with a FELA claim. See Phillips v. Smalley Maintenance Svcs., 711 F2d 1524, 1531 (11th Cir. 1983) (held, trial court properly exercised pendent jurisdiction over state law claims asserted in FELA action).
Appellant contends the trial court erred by granting summary judgment to appellees on the handicap discrimination claims on the basis that the handicap he alleged was not included within the statutory definition of handicap. The GEEHC defines “handicap” as “any condition or characteristic that renders a person a handicapped individual [other than addiction to alcohol or a controlled substance],” OCGA § 34-6A-2 (2), and a “handicapped individual” is one “who has a physical or mental impairment which substantially limits one or more of such person’s major life activities, and who has a record of such impairment.” Id. at (3). “Physical or mental impairment” is further defined as “(A) [a]ny physiological disorder or condition or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, or endocrine; or (B) [m]ental retardation and specific learning disabilities.” Id. at (7).
Appellant maintains this definition of mental impairment is open-ended and ambiguous so as to require the court’s construction, and that when the rules of construction are applied and expert testi *620 mony is adduced the definition can be read to include claustrophobia and depression as mental impairments. We disagree, as we find the statute clearly and unambiguously manifests the General Assembly’s intent to exclude emotional and mental disorders of the type experienced by Richard Bowers from the coverage of the GEEHC. Contrary to his argument, OCGA § 34-6A-2 (7) clearly limits the definition of “mental impairment” to any “physiological disorder or condition or anatomical loss affecting” certain body systems or “[m]ental retardation and specific learning disabilities.” 1
*620 The American Psychiatric Association characterizes claustrophobia as a simple phobia, which is a form of anxiety disorder, not a physiological disorder or condition. Diagnostic and Statistical Manual of Mental Disorders, § 300.29, pp. 243-245 (3d ed. rev. 1987). Depression is defined as a mood disorder that is not due to any other physical or mental disorder. Id. at 213. Neither disorder can be identified as either mental retardation or a learning disability. See id. at 27-49. Accordingly, we hold that the trial court correctly concluded that appellant Richard Bowers’ condition did not constitute a “handicap” within the meaning of the GEEHC, and thus appellees were entitled to summary judgment on his discrimination and retaliation claims as a matter of law.
4. The trial court did not err by granting summary judgment to appellees on the loss of consortium claim. Such a claim cannot be asserted under FELA,
Lunsford,
supra, and to the extent the claim is based on the state law claims it is derivative and must fail because of our rulings that appellees are entitled to summary judgment on Richard Bowers’ discrimination claims. See
Armstrong Furniture Co. v. Nickle,
Judgment affirmed in part and vacated and remanded with direction in part.
Notes
Compare 29 CFR § 1613.702 (b) (1978), which defines “physical or mental impairment” as “(1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting [the same body systems listed in OCGA § 34-6A-2 (7) (A)]; or (2) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”