DILLARD, Judge.
Tonya Forrester, Phyllis Charnley, and Stefanie Phillips brought suit against the Georgia Department of Human Services ("DHS") following their termination from the Dawson County Department of Family and Children Services ("DFCS"), claiming that they were dismissed for reporting the unlawful conduct of another employee in violation of Georgia's whistle-blower statute.
Viewed in the light most favorable to the nonmovant appellants,
Delong was a longtime employee of DFCS who, for one reason or another, was chronically absent from the office. Beginning in 2005, Forrester complained to Dawson County DFCS Director Amanda Morgan about Delong's many absences, "venting [her] frustrations" about having to do the job of two people and speculating that Delong was someone who "doctor shopped" for prescription pain medication. And when Morgan left to become a DFCS regional director in 2006, Forrester approached the new director of Dawson DFCS, Dorothy Gore, about Delong's chronic absenteeism and alleged "doctor shopping" for pain medication. After Gore left Dawson DFCS in 2007 (after being placed on administrative leave during the investigation discussed infra), Jill Rice became the interim director. And while a new interim director provided Forrester with yet another opportunity to vent about Delong, Forrester claims that she never had a "formal" conversation with Rice about Delong because, according to Forrester, Rice was already well aware of Delong's problems (having previously supervised Delong in another county). Nevertheless, in June 2007, Forrester did contact Rice to inform her that (1) Delong was intoxicated at work; (2) the
In the early summer of 2007, while appellants were raising their concerns about Delong, allegations arose that then-Dawson Director Gore forced DFCS clients to use a friend's counseling service, which then triggered an investigation by the Office of Investigative Services ("OIS").
In what was a routine practice when employee misconduct is alleged, DFCS management requested that OIS investigate Delong and the appellants after examining Blackwell's letter. Blackwell was thereafter assigned this investigation in September 2007 and was directed to further look into the allegations of abused leave time by Delong and the appellants.
Throughout the course of Blackwell's investigation, the three employees who had expressed their concerns to Blackwell maintained logs of Delong and appellants' activities at work, including the time of their arrival and departure, which the employees then provided to Blackwell. One of these employees was Don Hamil. Hamil, like Charnley and Phillips, was supervised by Forrester, and he became suspicious of Delong and the appellants after inadvertently stumbling upon some of their time sheets on Forrester's office floor, examining them, and realizing that the time reflected on those sheets was inaccurate. Hamil thereafter began documenting appellants' various and sundry workplace activities, noting instances when they (1) scheduled lengthy hair appointments during office hours; (2) told co-workers they were going shopping but then indicated on a sign-out board that they were on a DFCS-related errand; (3) played games on a work computer; and (4) clipped coupons during work hours (on one occasion) for over an hour. Thereafter, Blackwell substantiated these claims by comparing Hamil's logs to appellants' time sheets.
Meanwhile, shortly after the start of Blackwell's investigation, Wilson (as noted supra) became the interim director of Bawson County DFCS. Forrester approached Wilson in October 2007, and the two discussed Delong's misuse of leave, as well as her erratic, strange behavior. The appellants also spoke to members of the Bawson
In January 2008, Blackwell completed her investigation of Delong and the appellants, submitting the original version of the report to her supervisor. The final version was then signed in February 2008, and thereafter made its way up through the chain of command. When a DFCS field operations director eventually received the OIS report, she was "shocked" by the falsification of time sheets and abuse of leave by Delong and the appellants. And based upon Blackwell's investigation, the field operations director decided it was appropriate to terminate all of them. The field operations director's decision and subsequent recommendation of termination was based exclusively on the OIS report, and she was completely unaware of any reports by the appellants regarding their concerns with Delong. A DFCS employee relations analyst then agreed with the recommendation to terminate Delong and the appellants based on the serious misconduct outlined in the OIS report.
Accordingly, Forrester was terminated because she (1) signed off on falsified time sheets, (2) took long lunches, (3) conducted personal errands during those long lunches, (4) went tanning during work hours, and (5) spent most of one workday at a hair appointment. Charnley was terminated for falsifying her time sheets, and Phillips was terminated for falsifying her time sheets and downloading and playing a game on her computer during work hours.
Thereafter, the appellants filed suit under OCGA § 45-1-4, claiming that they were terminated in retaliation for making protected disclosures regarding Delong's unlawful workplace activity. They also contended that their time sheets accurately reflected a 40-hour work week, and that on the occasions when they spent time out of the office, they did so using "flex time" that DFCS employees were encouraged (if not mandated) to take—due to budget constraints—in order to avoid working overtime and receiving compensatory time (also known as "comp time"), for which DFCS was required to pay employees time-and-a-half. According to the appellants, this was a common practice at their office, and they were merely doing what they could to avoid the accrual of comp time. Thus, while the appellants admit that they did not accurately reflect the use of flex time on their time sheets, they claim that Forrester knew when Charnley and Phillips worked late and that she verbally approved their use of this time.
DHS then moved for summary judgment, which the trial court granted because, in its view, the appellants failed to present evidence of retaliation. In its order, the trial court also briefly acknowledged the appellants' pending motion for the qualification of an expert witness, which the court likewise denied, and in doing so noted that the proposed expert-witness testimony would not have changed its decision. Forrester, Charnley, and Phillips now appeal the grant of summary judgment for DHS, as well as the trial court's refusal to consider qualifying their expert witness.
1. Appellants first contend that the trial court erred in granting summary judgment for DHS because there are genuine issues of material fact for a jury to resolve and this grant of summary adjudication violated our holding in Jones v. Board of Repents of the
A party that moves for summary judgment "must demonstrate that there is no genuine issue of material fact[ ] and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law."
We have addressed the issue of summary judgment in the context of whistle-blower claims in very few cases, none of which explicitly sets forth a standard for analyzing when summary judgment is appropriate in such circumstances.
We agree that the McDonnell Douglas burden-shifting analysis used in Title VII retaliation cases is appropriately utilized in the context of evaluating whether a state whistle-blower claim is subject to summary adjudication,
To establish a prima facie case of retaliation under OCGA § 45-1-4(d)(2), the employee must present evidence that (1) the employer falls under the statute's definition of "public employer";
And here, in appealing the grant of summary judgment for DHS, appellants claim to have presented "overwhelming circumstantial evidence" of retaliation and "abundant direct evidence[ ] that clearly establishes that DFCS retaliated against [them] for reporting abuse, fraud, and waste as defined in [the whistle-blower statute.]"
(i) Public Employer. As noted supra, in order to make out a prima facie case of retaliation under OCGA § 45-1-4, the appellants
(ii) Whistle-Blowing Activity. Next, appellants must show that they engaged in whistle-blowing—i.e., that they disclosed "a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency."
First, the appellants all testified in their depositions that Delong's illnesses and excuses were a "running joke" with Dawson County DFCS directors, that everybody (employees and directors included) knew about Delong's abuse of prescription drugs, and that Delong's chronic absenteeism and drug use were discussed at the office on a daily basis. The appellants also presented other testimony that Delong's problems with prescription drug use were common knowledge in the office because it was "obvious," and this evidence only served to corroborate the evidence presented by DHS that Delong's problems were no secret and were, sadly, considered a laughing matter by most of the office's employees. Thus, to the extent the appellants claim to have disclosed something that was already widely known (and even joked about), we cannot say that this is the type of communication encompassed by the whistle-blower statute.
Second, there was deposition testimony by various Dawson County DFCS directors and interim directors that the concerns expressed by the appellants were personal concerns about Delong regarding her excessive absences from the office and use of prescription medication. Former-Interim Director Rice testified during her deposition that she did not consider Forrester's communications "whistle-blowing" because Forrester and Delong were friends. Instead, Rice explained that she understood and interpreted these communications from Forrester as an expression of concern for a friend and not as a report of a policy violation.
Third, appellants also maintain that the disclosures they made to members of the Dawson County Sheriffs Office are protected because "[n]o other DFCS employee engaged in the same type of protected activity." And while disclosures of "a violation of or noncompliance with a law, rule, or regulation to... a government agency" are protected by the whistle-blower statute,
Finally, the appellants testified during their depositions that they spoke with Interim Director Wilson in January 2008 to complain about Delong's abuse of prescription drugs after she was in a car accident, and expressed their concern about her potentially transporting foster children while under the influence of drugs. Charnley also claimed that she spoke to Wilson about Delong attending a staff meeting while impaired. And while Wilson did not recall speaking with appellants about either of the foregoing matters, he did recall speaking with them in late January 2008 about their concerns regarding Delong's foul language, her lack of supervision over employees, her lack of oversight on spending, and her frequent absences—all of which Wilson relayed to DFCS upper management. Wilson claims, however, that he did not consider the appellants whistle-blowers when they approached him about their concerns related to Delong. Nevertheless, to the extent there is conflicting testimony as to whether the appellants expressed their concerns to Wilson—a supervisor—about Delong's workplace intoxication and her potentially transporting foster children while under the influence of drugs (communications that would fall within the ambit of the whistle-blower statute),
(iii) Adverse Employment Action. Next, appellants must show that they suffered an adverse employment action.
(iv) Causal Connection. Finally, because there is a genuine issue of material fact as to whether the appellants made protected disclosures to Wilson (see discussion supra), the appellants must show that these communications and the adverse employment action are causally connected—i.e., that there is evidence linking their complaints about Delong to the adverse-employment action taken against them.
In the case sub judice, it is undisputed that the final decision to terminate the appellants was made by the DFCS field operations director, who based her decision solely upon the OIS report. The field operations director made this decision after the report was forwarded to her by an employee relations analyst with the Office of Human Resource Management and Development ("OHRMD") with DHS. This employee relations analyst reviewed the OIS report and then consulted with OHRMD's manager of employee relations. Both agreed that termination of appellants' employment was appropriate and in line with disciplinary actions taken in other cases of similar misconduct.
The OHRMD representatives spoke to Wilson about their recommendation, but he was actually resistant to terminating all four employees. As a result, OHRMD then contacted the DFCS field operations director (who was higher than Wilson in the chain of command), and she is the one who ultimately decided that terminating the employment of Delong and the appellants was indeed the appropriate course of action. In making this decision, the field operations director did not communicate with any of the parade of former Dawson County DFCS directors, interim directors, or with Wilson.
Moreover, DHS presented direct evidence (in the form of e-mails from the field operations director) that Dawson County DFCS Interim Director Wilson delivered termination letters to the employees per the field operations director's decision and that her decision was based solely on the OIS report. Wilson also testified below that he had no role in the decision to terminate Delong or the appellants, that he did not take any action against the appellants for approaching him about their concerns regarding Delong, and that his sole role was to deliver the message that they had been terminated. Indeed, Wilson told Hamil as much when Hamil inquired as to the status of the investigation—i.e., that the decision would come from a higher office and that somebody else would tell him what to do.
Furthermore, Charnley and Forrester's own deposition testimony cuts against the appellants' claims that Wilson retaliated against them for expressing their concerns about Delong. Specifically, Charnley and Forrester testified about how Wilson told them, along with Delong and Phillips, that the investigation was over and that he had been instructed to give them letters of termination.
Nevertheless, the appellants point to the close proximity in time between the decision to terminate them in February 2008 and their communications with Wilson in January 2008 about Delong. In Jones, we found circumstantial evidence of a causal connection
The appellants also point to the deposition testimony of Cathy Conlon, another Dawson County DFCS employee, as evidence that at least one other employee feared the appellants would suffer retaliation for reporting Delong's conduct. But when read in the context of her entire deposition, it is clear that what Conlon feared was that Delong would retaliate against the appellants for notifying superiors about their concerns. Indeed, almost all of the deposition testimony regarding suspected retaliation concerned fears of Delong's reaction once she learned about the complaints concerning her conduct. As Charnley testified, she feared that Delong would "make life hell" if she learned of the complaints because she was already abusive toward her co-workers. Phillips likewise testified that she did not report Delong's conduct to Blackwell because of Delong's reputation for exacting revenge. Thus, Conlon's testimony does not establish a causal link between the appellants' disclosures and their subsequent dismissals.
Finally, appellants highly tout the testimony of Jason Sauls, a DFCS trainer for DHS, who averred below that his personal experience in DFCS Region 2 led him to believe that upper management preferred to terminate employees as an alternative to dealing with personnel issues, and he speculated that the appellants' complaints are what actually resulted in their terminations. Sauls also testified, however, that (1) he had no personal knowledge that the appellants were in fact fired in retaliation for their complaints; (2) he was not privy to the appellants' termination process; (3) he did not discuss their termination with Wilson; (4) he did not discuss the investigation with Blackwell; and (5) he had not even read the OIS report.
In sum, the appellants have presented no evidence that the actual decisionmaker knew about their disclosures to Wilson about Delong or that Wilson himself had any role in their termination other than to deliver the message of their dismissals. And with no evidence that the actual decision-maker knew about their disclosures to Wilson, mere guesses and speculation are all that the appellants present in support of a causal connection between these disclosures and their subsequent terminations. Suffice it to say, this is not enough to survive a motion for summary judgment. Indeed, mere speculation as to an employer's motives in terminating an employee is not "sufficient to create even an inference of fact for consideration on summary judgment."
2. Appellants also appeal the trial court's refusal to qualify Jason Sauls as an expert, claiming the trial court "ruled, without considering evidence, that to qualify as an expert witness, a person must be employed by the alleged wrongdoer, participated in the alleged wrongdoing, and hold the same job title as the alleged wrongdoer." What the trial court actually ordered as related to Sauls was as follows:
As explained in Division 1, we, like the trial court, do not believe Sauls's testimony provided any evidence, let alone expert testimony, that would preclude summary judgment in favor of DHS. And as to appellants' request to qualify Sauls as an expert, the trial court had discretion in determining whether expert testimony was necessary.
Appellants apparently intended to present Sauls as an expert because of his "specialized knowledge ... as to the organizational structure of DFCS, both for Region 2 as well as the State" and his "familiar[ity] with many of the people who are part of the DFCS management." Appellants claim that due to Sauls's history with the agency and his position as a project administrator, "[n]o one in the world is a more qualified expert witness to testify about the byzantine organizational structure of DFCS, its complex, often overlapping policies and procedures, and the specific obligations and duties of DFCS management and employees." Appellants also contend that DFCS job titles and the "acronyms alone in the lexicon of DFCS boggle the mind and are `shrouded in the mystery of professional skill and knowledge'" such that expert testimony is necessary. We disagree.
When a factual contention is one not "capable of proof only by expert testimony," it is not necessary to produce expert testimony.
Judgment affirmed.
BLACKWELL, J., concurs.
BARNES, P.J., concurs in judgment only.
While I concur with the result reached by the majority in this case, I do not agree with all that is said. Accordingly, I concur in the judgment only.
OCGA § 45-1-4(a)(4); see Weaver, 272 Ga. at 290, 527 S.E.2d 864 (holding that, prior to amendment, OCGA § 45-1-4 "applies solely to persons employed in state government" and that regional agencies are not "clearly part of either state or local government").