Lead Opinion
On November 19, 2009, Christopher Albers was given written notice that he would be terminated from his position as chief of police at Georgia Perimeter College (“GPC”). Asserting a wrongful termination claim under the Georgia Whistleblower Statute,*
Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law.
So viewed, the record shows that Albers began working for GPC as chief of police in March 2005. In this role, he served as chief executive of GPC’s department of public safety, overseeing security services, police procedure, parking control, homeland security, and other security matters. According to Albers, his supervisor, Executive Vice President Ronald Carruth, had never criticized his performance prior to November 2008. That changed, however, following an incident in late October of that year.
On October 28,2008, a GPC student reported to the public safety department that his laptop was missing from a classroom. GPC officers investigated, concluded that another student had taken the computer, and obtained a warrant for her arrest. In the meantime, the suspect’s mother contacted the school, complaining about how her daughter had been treated by GPC officers. After this complaint, several college administrators, including the dean of student services and director of human resources (“HR”), instructed Albers to speak with the district attorney about having the charges against the student reduced or dropped. Albers refused, telling Carruth: “[I]t would be inappropriate and unethical for me to try and influence the DA in any way as to how he would handle this case.”
At some point, the HR director commenced her own investigation into the laptop incident. Albers and his deputy chief objected to the HR inquiry, asserting that it interfered with their ongoing criminal investigation and obstructed justice. Albers discussed the concurrent HR investigation with an assistant district attorney, who indicated that HR’s inquiry was improper. Following this conversation, Albers informed Carruth that GPC should not attempt to influence the outcome of the criminal prosecution, and he continued to object to the administration’s interference in the police investigation.
By the spring of 2009, the relationship between the college administration and the public safety department “was extremely strained,” and Albers believed that his job was in jeopardy. According to Albers, Carruth was undermining his authority, and the HR director was overtly hostile toward him. Also during this period, an audit revealed that Albers had used a GPC warehouse to receive and store large amounts of grain that he needed for his “home brewers” beer-making club. Although GPC’s director of logistical services had given Albers permission to use the warehouse, Carruth and Tricoli asserted that Albers had exercised poor judgment in having beer grain delivered to the campus.
On June 16, 2009, GPC issued a written reprimand and one-day suspension to Albers in connection with the beer grain deliveries. A few days later, on June 19, 2009, GPC suspended Albers indefinitely after concluding that he had violated a direct order not to discuss certain matters with his staff.
Carruth met with Albers on June 25, 2009, and told him that he should resign or he would be terminated. Albers initially agreed to resign, and Carruth indicated to Albers that he was in a “transition period,” which Albers understood to mean a “transition out the door.” Over the next few months, Albers performed special projects for Carruth, but he no longer functioned as the GPC police chief and had no authority within the GPC public safety department. At that point, Albers knew his employment would be ending. He also “felt that [he] was being retaliated against for . . . upholding] the law.”
In August 2009, Carruth asked Albers to sign a “Letter of Understanding” that outlined, among other things, his limited responsibilities and duties going forward at GPC, as well as an agreement that he submit his resignation. The letter further stated: “[I]t is estimated that your last day with GPC will be December 31, 2009, or whenever you find employment, whichever comes first.” Albers refused to sign the letter, did not agree to its terms, and told Carruth that he had decided not to resign from his position.
On November 19, 2009, Carruth issued a termination letter to Albers, which provided: “You will be terminated from your position
1. Under Georgia’s Whistleblower Statute, a public employer may not retaliate against a public employee for disclosing “a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency” or for “objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation.”
the discharge, suspension, or demotion by a public employer of a public employee or any other adverse employment action taken by a public employer against a public employee in the terms or conditions of employment for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency.5
To establish a claim under the statute, a public employee must demonstrate that (1) he was employed by a public employer; (2) he made a protected disclosure or objection; (3) he suffered an adverse employment action; and (4) there is some causal relationship between the protected activity and the adverse employment action.
(a) The defendants argue, and the trial court found, that Albers never engaged in protected whistleblowing activity. Albers, however, objected to the administration’s directive that he speak with the
The trial court dismissed these objections, finding that they “were about potential, speculative, or nonexistent violations ... none of which constitute protected activity under [OCGA § 45-1-4].”
(b) The trial court also found summary judgment appropriate on the issue of causation. According to the court, the substantial delay between the alleged whistleblowing activity and Albers’s termination undermined any causal link between the events as a matter of law. We disagree.
The causation element in a whistleblower case “is construed broadly so that a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.”*
Carruth testified that one of the underlying reasons for Albers’s termination was the inability of the public safety department and the HR department to work as a team. He explained that the relationship between these departments deteriorated during the laptop investigation, as Albers continually objected to the HR inquiry and his deputy chief threatened to arrest the HR director for involving herself in the criminal investigation. Based on such testimony, a jury could conclude that Albers’s handling of the laptop incident, his expressed objections to the concurrent HR investigation, and the concerns he raised about administrative interference factored into the termination decision. Accordingly, the record contains some evidence of a causal connection between the alleged whistleblowing activity and the termination.
(c) The trial court also found that GPC terminated Albers for legitimate business reasons — including insubordination, failure to effectively manage his subordinate employees, and his involvement with the beer grain deliveries — rather than for participating in protected whistleblowing activity. Again, however, there is some evidence that the bad relationship between the HR and public safety departments, which deteriorated during the laptop investigation, was a catalyst for the termination decision. As explained by Carruth, “the wheels came off of the Public Safety car” with the laptop incident.
Although the defendants offered other reasons for the termination, a jury could find that Albers’s continuing claims of administrative impropriety during the laptop investigation undermined the public safety-HR relationship and drove the termination decision. Under these circumstances, a factual issue remains as to whether the defendants dismissed Albers based on protected whistleblowing activity.
In reaching this decision, the court relied on Stokes v. Savannah State University,
the accrual date of the cause of action for limitations purposes is the date on which the adverse employment action is communicated to the plaintiff, even if the plaintiff continues working for a period of time or if there is an internal appeals procedure.16
Applying this reasoning to the Whistleblower Statute, the Stokes court found that its claimant became “aware of the alleged retaliation when he received [an] initial letter of termination.”
Citing Stokes, the trial court determined that the adverse employment action was communicated to Albers on several occasions in the summer of 2009, including on June 25, 2009, when Carruth told him that he needed to resign or would be terminated, and in August 2009, when Albers reviewed a “Letter of Understanding” that addressed his anticipated resignation. In the trial court’s view, the limitation period likely began in June, but commenced no later than August 2009.
In contrast, there is no evidence that Albers was informed before November 19, 2009, that he was actually being terminated. Undoubtedly, the defendants had threatened termination during the summer, and Albers suspected that his employment would be ending. He also believed that the defendants were retaliating against him. But he was not terminated at that point.
As we noted in Tuttle, “the true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.”
Judgment reversed.
See OCGA § 45-1-4.
See Caldon v. Bd. of Regents of the Univ. System of Ga., 311 Ga. App. 155 (715 SE2d 487) (2011).
See id.
OCGA § 45-1-4 (d) (2), (3).
OCGA § 45-1-4 (a) (5).
See OCGA § 45-1-4 (d); see also Forrester v. Ga. Dept. of Human Svcs., 308 Ga. App. 716, 722 (1) (a) (708 SE2d 660) (2011) (physical precedent only) (setting forth elements of prima facie case under OCGA § 45-1-4).
See, e.g., Brathwaite v. Fulton-DeKalb Hosp. Auth., 317 Ga. App. 111, 115 (2) (729 SE2d 625) (2012) (physical precedent only) (affirming grant of summary judgment to defendant where disclosures supporting whistleblower claim involved potential illegal activity that might occur in future).
OCGA § 45-1-4 (d) (3).
See OCGA § 16-10-24 (a) (“[A] person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.”); Kendrick v. State, 324 Ga. App. 45, 46 (1) (749 SE2d 45) (2013) (whether defendant’s conduct constituted obstruction of a law enforcement officer “was for the trier of fact to decide”).
See OCGA § 45-1-4 (d) (3). We express no opinion as to whether any other objections or disclosures by Albers might support his claim under OCGA § 45-1-4.
Freeman v. Smith, 324 Ga. App. 426, 431 (1) (750 SE2d 739) (2013) (citation and punctuation omitted); see also Forrester, supra at 726 (1) (a) (iv) (“plaintiff can establish such a causal connection by showing that the decision-maker was aware of the protected disclosure and that the disclosure and action were not wholly unrelated”) (physical precedent only).
Freeman, supra (citation and punctuation omitted).
Compare id. at 433 (whistleblower defendant entitled to summary judgment where substantial delay existed between whistleblowing activity and adverse employment action and plaintiff offered no evidence of a causal link).
See Jones v. Bd. of Regents of the Univ. System of Ga., 262 Ga. App. 75, 81-82 (4) (585 SE2d 138) (2003) (trial court erred in granting summary judgment to defendant on whistle-blower claim where plaintiff presented circumstantial evidence that he was terminated in retaliation for making protected disclosure); compare Caldon, supra at 160 (defendants in whistleblower case entitled to summary judgment where they offered legitimate reasons for termination and plaintiff “failed to point to any other evidence that would establish a fact question for the employer’s motive”).
2007 U. S. Dist. LEXIS 90120 (S.D. Ga. Dec. 7, 2007), aff’d, 291 Fed. Appx. 931 (11th Cir. 2008).
Id. at *4 (citations omitted).
Id.
326 Ga. App. 350 (756 SE2d 585) (2014) (physical precedent only).
Id. at 354 (1) (a).
Id.
We note that neither Stokes, which is a federal decision, nor Tuttle, which is physical precedent only, are binding on this court. See Court of Appeals Rule 33 (a); Baskin v. Ga. Dept. of Corrections, 272 Ga. App. 355, 359 (3) (612 SE2d 565) (2005) (“Decisions of federal courts are not binding authority on this court, but their reasoning may he persuasive.”).
Although other adverse actions were arguably taken against Albers — such as stripping him of his duties as police chief— he does not allege a retaliation claim based on these actions. He complains only that he was wrongfully terminated.
Tuttle, supra at 353 (1) (a) (citation and punctuation omitted).
See OCGA § 45-1-4 (e) (1); see also Orquiola v. Nat. City Mtg. Co., 510 FSupp.2d 1134, 1152 (N.D. Ga. 2006) (“[Njumerous courts have concluded that verbal reprimands and threats of termination do not constitute adverse employment actions.”) (citation and punctuation omitted).
Dissenting Opinion
dissenting.
In my view, the trial court correctly ruled in this case that Albers failed to file his claim for wrongful termination within the time allowed. Accordingly, I respectfully dissent.
OCGA § 45-1-4 (e) (1) provides:
A public employee who has been the object of retaliation in violation of this Code section may institute a civil action in superior court for relief. . . within one year after discovering the retaliation or within three years after the retaliation, whichever is earlier.
Under Georgia law, “when the question is raised as to whether an action is barred by a statute of limitation, the true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.” (Citation and punctuation omitted.) Sandy Springs Toyota v. Classic Cadillac Atlanta Corp., 269 Ga. App. 470, 471 (1) (604 SE2d 303) (2004). Accordingly, as we held in another whistleblower case, a public employee’s cause of action accrued and the one-year limitation period began to run on the date when the employee first discovered the retaliation in question, in that case, when he was advised that his position was to be eliminated. Tuttle v. Bd. of Regents of the Univ. System of Ga., 326 Ga. App. 350, 353-354 (1) (756 SE2d 585) (2014) (physical precedent only) (period was not tolled until the employer’s former supervisor advised him that employer had retaliated against him).
In this case, Albers testified that he was aware that his employment was being terminated when his immediate supervisor, Ron Carruth, told him on June 25, 2009, that he needed to resign or be
For these reasons, I would affirm the ruling of the trial court.
I am authorized to state that Presiding Judge Andrews and Judge McMillian join in this dissent.
See also Stokes v. Savannah State Univ., 291 Fed. Appx. 931, 932 (11th Cir. 2008) (employee discovered retaliation on the date he received his supervisor’s letter of termination, or at the latest on the date the president of the university affirmed the decision to terminate).