LISA GODBEY WOOD, District Judge.
This Matter comes before the Court on the summary judgment motion of Defendants City of Waycross ("the City"), David E. Eddins, Trinija Molina-Martin, and Raphel Maddox. Dkt. No. 25. This Motion has been fully briefed and is ripe for review. For the following reasons, this Motion is
Plaintiff William Jordan joined the Waycross Fire Department as a firefighter in 1987. Defendants' Statement of Material Facts Not in Dispute ¶ 1 ("SUMF"), Dkt. No. 25-1;
In the early morning hours of December 15, 2013, City of Waycross firefighters responded to a house fire ("the Fire") in a condemned building on Isabella Street in Waycross. SUMF ¶ 33; Dkt. No. 26 at 57-59; Dkt. No. 28 at 125-26. The parties dispute whether and for how long some supervising firefighters on the scene may have believed that somebody was in the building, but ultimately it was determined that nobody was inside. SUMF ¶ 36; Dkt. No. 39-1 at 50-51; Dkt. No. 28 at 185-87. At some point, one of the firefighters inside the condemned building, Robert Sumerall, was ordered from the back of the house to the front of the house in order to "salvage and overhaul." Dkt. No. 28 at 146; Dkt. No. 39-1 at 62, 63, 70-71. Sumerall thought this a strange order because "you don't salvage and overhaul mode unless you're in a residential structure, not a condemned structure." Dkt. No. 39-1 at 62.
In response to Eddins's "salvage and overhaul" order, Lieutenant Little and his crew entered the building.
In the aftermath of the Fire and Little's death, many began to blame Eddins for Little's death. Jordan testified that firefighters at the scene "were all up in a rage" about Little's death and Eddins's role in it by ordering firefighters into a building with nobody in it. Dkt. No. 26 at 94. And Jordan himself began to voice this sentiment. He complained to his direct supervisor the first working day after the Fire.
Plaintiff asserts that Eddins's ordering Little into an empty condemned building violated then existing firefighting policy. Summerall testified that the policy was "You don't go inside no condemned building that bad." Dkt. No. 39-1 at 85-86. And a year later, Eddins issued a new policy providing:
Dkt. No. 40-9 (emphasis in original).
The complaints in the aftermath of the Fire prompted Eddins to send an interoffice memorandum on December 30, 2013 (two weeks after the Fire), entitled "Rumors and Opinions" that stated:
True to his word, multiple investigations began. The Waycross Fire Department Fire Marshall, the State Fire Marshal's Office, NIOSH, and the Waycross Police Department were all involved. SUMF ¶ 41; Dkt. No. 31 at 4, 40; Dkt. No. 26 at 77-78; Dkt. No. 31 at 8, 41-42.
Then Jordan's complaints about the circumstances surrounding Little's death expanded outside of the fire department. He contacted the Bureau of Alcohol, Tobacco, and Firearms and James Atkins, the local arson investigator with the state fire marshal's office, in March 2015, Gordon Henderson, Director of Georgia Firefighters Standards & Training Council in April 2015, the Governor of Georgia in May 2015, and the United States Department of Justice in May or June 2015.
The record contains a factual dispute as to whether Martin and Eddins had knowledge that Plaintiff made these complaints. Investigator Atkins testified that he never called Eddins to tell him Plaintiff had complained. Dkt. No. 31 at 28. On the other hand, Henderson testified that he informed Eddins that "someone" had complained. Dkt. No. 36 at 51, 81. Jordan had previously complained to Eddins about not being able to attend an interview with an investigator from NIOSH. Dkt. No. 26 at 90. Eddins and Martin knew of Little's wife's lawsuit against Eddins, which named Jordan in the pleadings and alleged that Eddins "fraudulently kept those involved in the fire from speaking publically about the fire." Dkt. No. 40, Ex. 39; Dkt. No. 30 at 99; Dkt. No. 29 at 14-15. A member of the Waycross Fire Department testified that complaints about the Fire were "common knowledge" at the firehouse. Dkt. No. 33 at 7.
Plaintiff injured his shoulder when extricating Little from the Fire. SUMF ¶ 66; Dkt. No. 26 at 115-16. He continued working until he began medical leave on March 18, 2015, in order to undergo surgery. SUMF ¶ 67; Dkt. No. 28 at 220; Dkt. No. 26 at 118. On June 16, 2015, Eddins asked Martin whether Plaintiff would be absent from work much longer because, if so, then Eddins needed to report Plaintiff's absence to Standards & Training. SUMF ¶ 89; Dkt. No. 28 at 278-73. Plaintiff's medical leave lasted about a year—he returned to work without restrictions on March 29, 2016. SUMF ¶ 91; Dkt. No. 26-18. The leave would have lasted
Eddins learned on March 24 that Plaintiff would be returning on March 29. SUMF ¶ 94; Dkt. No. 28 at 231. He (Eddins) called HR Director Martin to discuss the training requirements that Jordan must satisfy after returning to work following an extended absence. Dkt. No. 28 at 231. Henderson testified that the Standards & Training regulations require a firefighter to retake the basic Firefighter I test following a leave exceeding 365 days. Dkt. No. 36. The first available test date for Plaintiff was March 31. Dkt. No. 30 at 50.
Jordan started back to work on March 29. It was on that day that he learned of the retest requirement. (However, Defendants assert that this information was available online. SUMF ¶ 98.) In any event, nobody had warned Jordan that he needed to be recertified. SUMF ¶ 99; Dkt. No. 30 at 83.
On that first day of Plaintiff's return to work, Plaintiff had an 8:00 a.m. meeting with Eddins, Martin, and Nicole Price, another employee of the City of Waycross. Dkt. No. 28 at 231. There, Martin presented Jordan with a letter ("the Letter"), which read, in pertinent part:
Dkt. No. 40-1.
Also at the meeting, Jordan was informed that he would be "temporarily reassigned" to the Community Improvement Department (one of eight departments within the City of Waycross) until his test results were received.
Following the Meeting, Plaintiff contacted an attorney (Deen Strickland) who had represented him in a previous matter. SUMF ¶¶ 130, 131; Dkt. No. 26 at 122. Although Strickland was in court that day, he told his office to "tell Mr. Jordan to please let him have an opportunity for me to look at [the Letter] before he signed it." Dkt. No. 34 at 3. Later that afternoon, Strickland spoke directly to Jordan, reviewed the Letter, and advised Jordan to sign it in the morning.
Plaintiff also contacted individuals at Standards & Training and confirmed that he really did need to be recertified. SUMF ¶ 142; Dkt. No 26, Ex. 22. The day after the Meeting (March 30), Plaintiff called in sick. Dkt. No. 26 at 122-28.
A few days later, on April 1, 2016, Strickland contacted the City Attorney about appealing any adverse action against Plaintiff. SUMF ¶ 143; Dkt. No. 26 at 133-34. The City Attorney explained that a voluntary resignation is not appealable. SUMF ¶ 144; Dkt. No. 34 at 19. Strickland asked if an exception could be made for Plaintiff. SUMF ¶ 145; Dkt. No. 34 at 21. Maddox responded that he doubted it, because of Plaintiff's history of a troubled relationship with the City.
Plaintiff filed the present lawsuit against the City of Waycross, Eddins, Martin, and Maddox, alleging claims for violation of the Georgia Whistleblower Act, First Amendment retaliation, violation of substantive due process, and violation of procedural due process. Dkt. No. 1.
Summary judgment is required where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law."
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact.
The nonmovant may satisfy this burden in one of two ways. First, the nonmovant "may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was `overlooked or ignored' by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence."
Defendants raise several grounds for summary judgment. First, they seek dismissal of the official capacity claims against the individual defendants. Second, they argue that Maddox and the City cannot be liable under respondeat superior. Third, they argue that they are entitled to qualified immunity on each constitutional claim. Fourth, they argue that Plaintiff's whistleblower claim must fail because he never alleged a specific law that Eddins violated. The Court will take up each in turn.
Defendants Martin, Maddox, and Eddins move for summary judgment on the official capacity claims against them because of their redundancy with the claims against the City of Waycross. Plaintiff responds that "[t]his is a correct statement of law." Dkt. No. 41 at 16. The parties are right.
"For liability purposes, a suit against a public official in his official capacity is considered a suit against the local government entity he represents."
Defendants Maddox and the City of Waycross argue that they cannot be held liable under a theory of respondeat superior. Plaintiff responds, in effect, that he is not seeking to hold them liable on such a basis but, rather, for their final policymaking authority.
To begin, the parties are right that respondeat superior liability does not apply to § 1983 claims.
So-did the person who effected Plaintiff's resignation have final authority to establish the City's position as to that resignation? Martin was the one who wrote "REFUSED TO SIGN" and characterized that refusal as a voluntary resignation. Maddox and Eddins testified that the human resources director (i.e., Martin) makes that final determination. Dkt. No. 29 at 9; Dkt. No. 28 236, 251. No record evidence suggests anything to the contrary. Additionally, in this case, the City's own policy had a role in the relevant adverse action: it is the City's policy that employees cannot appeal "voluntary resignations." That presents evidence, sufficient to withstand summary judgment, that the City is a proper defendant in a § 1983 employment claim.
On the subject of supervisor liability, Maddox asserts that he did not participate in the meeting with Plaintiff regarding his temporary reassignment and was not involved in the decision to accept Plaintiff's resignation. His testimony is that he is only involved in decisions concerning separation from employment when an employee appeals. Dkt. No. 29 at 15-16, 19. But the record does not establish as a matter of law that Maddox had no involvement in hiring and firing decisions. While Martin testified that department managers (i.e., Eddins) had authority for hiring decisions with the support of Human Resources (i.e., Martin), Eddins testified that his process was to make recommendations for such decisions to the city manager (i.e., Maddox).
And the record shows some involvement by Maddox in this particular case. Specifically, Plaintiff's attorney contacted Maddox in an attempt to appeal the separation and explicitly asked Maddox to make an exception allowing Plaintiff to appeal. For these reasons, the facts viewed in the light most favorable to Jordan establish that Maddox's role in the adverse action was not limited to that of a supervisor without direct involvement.
In conclusion, Maddox and the City's "point" that they cannot be liable under a theory of respondeat superior is welltaken, but there are no claims Plaintiff has raised that strictly base liability on that theory.
Qualified immunity protects government officials acting in their discretionary authority from liability unless they violated "clearly established statutory or constitutional rights of which a reasonable person would have known."
Here, the actions in question are discussing an employee's return to work, implementing certification requirements, and accepting a resignation. The first question regarding discretionary authority is whether these actions were legitimate job-related functions of Martin and Eddins. Plaintiff does not contest that these were job-related functions, and they were. These actions fall under the duties of a human resources director and the fire chief.
It is the second prong of the discretionary authority test that Plaintiff contests. This prong asks whether Defendants performed their duties through means that were within their power. Plaintiff asserts that none of these Defendants had the power to transfer Plaintiff from one department to another or to unilaterally make a determination that an employee had voluntarily resigned instead of being terminated. In support of this assertion, Plaintiff points to the lack of a written policy explicitly allowing reassignment of employees from one department to another or unilateral decisions that an employee had resigned. Dkt. No. 41 at 19 (citing Dkt. No. 30 at 68).
Plaintiff's identification of the job powers at issue parses too finely the relevant actions. An action need not be taken pursuant to a stated written policy in order to be "discretionary." Whether Defendants took the
Defendants argue that the actions Plaintiff complains of in this suit are not protected by the Substantive Due Process Clause. They are right. The Eleventh Circuit has held that "an employee with a property right in employment is protected only by the procedural component of the Due Process Clause, not its substantive component."
Therefore, the Court
Defendants argue that Plaintiff's Procedural Due Process Claim must fail because he voluntarily resigned. It is true that if the end of Plaintiff's employment relationship with the City of Waycross is properly deemed a "voluntary resignation," then he cannot find protection in the Due Process Clause.
"As an initial matter, employee resignations are presumed to be voluntary. This presumption will prevail unless [the employee] comes forward with sufficient evidence to establish that the resignation was involuntarily extracted."
Here, though, the question is even more nuanced than whether a resignation was voluntary; the question is whether Plaintiff resigned at all. Here, Plaintiff showed up to an 8:00 a.m. meeting on his first day back to work after a year-long absence. At the meeting he was told that he needed to be recertified in order to remain in this current position. He was told that he would take the recertification test in two days' time at a location three hours away, in Forsyth, GA. In the meantime, he would be temporarily reassigned to a different department. Plaintiff did not expect to hear this news on his first day back, and he did not understand why he needed to be recertified, believing that his training hours were current. Martin instructed him to sign the Letter, signifying these changes to his employment status. Jordan was given thirty-five minutes to decide whether to do so. He did not have the advice of counsel when making this decision, despite having requested it. He decided not to sign the Letter. Martin told him that failing to sign the Letter would be considered a "voluntary resignation."
After speaking with an attorney the next day, Jordan contacted Martin again, indicating his desire to return to work and sign the Letter. Too late, his supervisors informed him; his resignation had already been accepted, and there was no appeals process.
With these facts, the Court is not convinced that Jordan resigned at all. At the very least, a reasonable jury could find that his resignation was not voluntary. Jordan's alternative to resignation, in his mind, was to fail a test because of insufficient notice and time to prepare and thus be terminated. He did not understand, at the Meeting, that Martin was correct about Jordan's need to take a recertification test, having never needed to do so in thirty years as a firefighter. Jordan was given a mere half hour to make his decision. He did not have the advice of counsel, despite requesting it, and he did not decide the effective date of his "voluntary resignation." The involuntariness of the "resignation" is further supported by his strong desire to sign the Letter, once he had time to confirm Martin's facts, reflect on his choice, and speak with an attorney.
For these reasons, Defendants' Motion for Summary Judgment on Plaintiff's Procedural Due Process claim is
"[A] public employee's right to freedom of speech is not absolute."
In First Amendment retaliation claims, the court should consider: (1) whether the employee's speech touches a matter of public concern; (2) the balance of the employee's First Amendment interests against the government's interests; (3) whether the employee can show the substantial role the employee's speech played in motivating the employment decision; and (4) whether the government can show that it would have reached the same decision based solely on a legitimate reason.
Here, Defendants concede for the sake of argument that Plaintiff's speech touches a matter of public concern and has a greater interest in protection than the state's interest in quashing it. The real dispute lies in the causal link between Plaintiff's speech and the employment action—that is, the third and fourth factors.
To prove causation, a plaintiff must prove that his speech was the "but-for" cause of the allegedly retaliatory action.
Defendants assert that Plaintiff cannot establish the necessary causal link because neither Martin nor Eddins knew of Plaintiff's complaints to the various fire agencies and because too much time had elapsed (seven months) between the complaints and the acceptance of Plaintiff's resignation.
Plaintiff responds to Defendants' temporal proximity argument by pointing out that he was on medical leave from March 18, 2015 until March 29, 2016. Though at first blush it appears that the City delayed in acting out against him, its action was actually taken on Plaintiff's very first day back to work—what Plaintiff characterizes as "the first opportunity available." Dkt. No. 41 at 23.
Plaintiff responds to Defendants' arguments regarding lack of knowledge of Plaintiff's complaints by pointing to record evidence that calls that conclusion into doubt. Specifically:
Viewing all of these facts as a whole, the Court is satisfied that, at this stage of the case, Plaintiff has produced sufficient evidence from which a reasonable juror could infer that his speech
Next, the burden shifts to the City to produce evidence that it would have taken the same action for a legitimate reason. Defendants assert that Plaintiff's separation from employment resulted from a legitimate reason: he refused to take the required recertification test necessary to keep him qualified as a firefighter.
Perhaps, but the facts do not support such a simple conclusion as a matter of law. Defendants gave Plaintiff no warning prior to his return to work that he would need to retake the certification test. Defendants did not give Plaintiff an opportunity to verify with Standards & Training that recertification was required. Defendants told Plaintiff that he would only get one chance to take the test—and that that would occur three hours away, in two days' time, two days that Jordan would be required to be working in his new position. Other test dates were available, and Jordan was given no agency in choosing what test date would best fit his schedule and his ability to prepare.
Moreover, Defendants have articulated no legitimate reason why they failed to allow Plaintiff to comply with their wishes after he had had a chance to verify the recertification requirement and speak with an attorney-that is, they have stated no reason why the next day was too late to reverse the "voluntary resignation." They have offered no legitimate reason why Plaintiff was given only thirty-five minutes to make such an impactful employment decision or why they failed to honor his request to call his lawyer before signing it.
For these reasons, the Court is satisfied that Plaintiff has produce sufficient evidence at this stage of the case that his speech cause the adverse employment action. Therefore, Defendants' Motion for Summary Judgment on this claim is
Georgia's Whistleblower Act provides: "No public employer shall 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, unless the disclosure was made with knowledge that the disclosure was false or with reckless disregard for its truth or falsity." O.C.G.A. § 45-1-4(d)(2). The language of the statute shows that a plaintiff need not be right that the defendant committed a violation, but he cannot find protection in the statute if his disclosure was knowingly false (or made with reckless disregard for the truth).
Defendants argue that Plaintiff's whistleblower claim fails because Plaintiff's complaint concerned violations of firefighting policy, not unlawfulness.
In response, Plaintiff points to laws that prohibit the actions that he complained Eddins took on the night of the Fire. First, Plaintiff argues that his complaints about Eddins's behavior resulting in Little's death are addressed by O.C.G.A. § 34-7-20's requirement that employers warn employees of "dangers incident to employment." Second, Plaintiff points to 0.C.G.A. § 16-5-40, prohibiting a gross deviation from reasonable standard of care that causes bodily harm to another by consciously disregarding a substantial and unjustifiable risk that their actions would cause harm to that person.
The gist of Plaintiff's complaint has always been that Eddins's wrong decision to order firefighters into a condemned building led to the preventable death of Jeff Little-in short, that Eddins was legally responsible for Little's death. Dkt. No. 26 at 85, 94. The Court has found no requirement under Georgia law that a whistleblower name the specific code section he feels the defendant violated when making his disclosure in order to win protection under Georgia's Whistleblower Statute. By complaining to law enforcement agencies that Eddins was legally responsible for Little's death, Plaintiff meets the definition of whistleblower under the Georgia statute. Therefore, Defendants' Motion for Summary Judgment on Plaintiff's whistleblower claim is
The summary judgment motion on the official capacity claims against Martin, Maddox, and Eddins is
