Mimbs v. Henry County Schools ( 2022 )

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official text of the opinion.
In the Supreme Court of Georgia
Decided: May 3, 2022
S21G1005. MIMBS v. HENRY COUNTY SCHOOLS
LAGRUA, Justice.
We granted certiorari in this case to decide whether the trial
court properly granted summary judgment against Sheri Mimbs, a
public school teacher, on the basis that Mimbs failed to institute her
whistleblower action within one year after discovering the alleged
acts of retaliation. See OCGA § 45-1-4 (e) (1). 1 For the reasons that
follow, we conclude that Mimbs’s complaint was timely with respect
to one of the acts giving rise to her retaliation claim. Therefore, we
reverse in part the judgment of the Court of Appeals affirming the
trial court’s grant of summary judgment to the school district, see
1OCGA § 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 as set forth in paragraph (2) of this subsection within
one year after discovering the retaliation or within three years after the
retaliation, whichever is earlier.”
Mimbs v. Henry County Schools, 359 Ga. App. 299, 302-303 (857
SE2d 826) (2021), and remand the case to the Court of Appeals with
direction to remand to the trial court for further proceedings.
1. Construed in the light most favorable to Mimbs as the
non-moving party, the record shows that in November 2016, Mimbs
was hired as a fifth-grade teacher at Cotton Indian Elementary
School (“CIES”) in Henry County for the remainder of the 2016-2017
school year. According to the principal and assistant principal of
CIES, during the first few months of Mimbs’s employment with
Henry County Schools (the “School District”), administrators
observed that Mimbs routinely failed to meet performance
standards, despite training and other efforts to assist her.
In Mimbs’s deposition, she testified that, in February 2017, she
submitted progress report grades for her students, which included a
number of zeroes for missing assignments. According to Mimbs,
after the assistant principal received Mimbs’s students’ progress
reports, the assistant principal advised Mimbs that students should
not have a grade of “less than 60” in her class, and the failing grades
2
needed to be altered. 2 Mimbs objected to the assistant principal’s
directive to alter her students’ grades, and according to Mimbs, the
assistant principal then told Mimbs that she would be terminated if
she did not modify the failing grades as instructed.
The principal met with Mimbs in February and March 2017 to
address Mimbs’s performance in the classroom, to discuss her
students’ grades, and to emphasize the importance of assisting
students in completing assignments. According to Mimbs, when she
met with the principal, Mimbs reported that the assistant principal
had instructed Mimbs to change her students’ grades or she would
be terminated. Mimbs asserted that, in response, the principal
advised her that no student could receive a failing grade and the
grades needed to be altered.
On March 21, 2017, Mimbs met with a School District
administrator in the Human Resources department and reported
that the principal and assistant principal had asked Mimbs to
2 The assistant principal testified in her deposition that when she spoke
to Mimbs about the failing grades, her primary focus was to encourage Mimbs
to assist her students in turning in their assignments on time.
3
“break the law” by changing her students’ grades. According to the
administrator, she advised the principal of Mimbs’s claim, and the
principal followed the proper protocol for addressing this grievance.
On or about April 24, 2017, the principal met with Mimbs and
told her that the school would “not have a spot” for Mimbs for the
upcoming school year. The principal then offered Mimbs the
opportunity to resign in lieu of nonrenewal of her contract, which
Mimbs refused. In her deposition, the principal testified that she
did not have the authority to renew or not renew an employee’s
contract; she was simply tasked with advising the School District as
to which CIES employees would be recommended for contract
renewal for the following school year.
On April 26, 2017, Mimbs’s attorney sent a certified letter to
the School District, advising that his law firm had been hired to
represent Mimbs regarding potential claims of retaliation under
OCGA § 45-1-4 and that he understood Mimbs had been asked to
resign her employment. Mimbs’s attorney requested that all future
communications regarding Mimbs’s employment be directed to him.
4
On April 27, 2017, the Superintendent of the School District
issued a letter regarding Mimbs’s employment, stating that she had
“not been recommended for contract renewal with the Henry County
Board of Education for the 2017/2018 school year” and that her
“employment with the school system will terminate at the
conclusion of this school year.” The Superintendent’s April 27 letter
was sent to and received by Mimbs’s attorney on May 3, 2017.
Exactly one year later, on May 3, 2018, Mimbs filed a civil
action against the School District under OCGA § 45-1-4, alleging
that she was fired in retaliation for refusing to change her students’
failing grades, for reporting her complaints to Human Resources and
the principal, and for retaining counsel to pursue her claims. After
the parties conducted discovery, the School District moved for
summary judgment on a number of grounds, including that Mimbs’s
complaint was barred as a matter of law because she did not file it
within the applicable one-year statute of limitation, see OCGA § 45-
1-4 (e) (1).3 Specifically, the School District contended that Mimbs’s
3 The School District also moved for summary judgment under the theory
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claim under OCGA § 45-1-4 was time-barred because, rather than
accruing on May 3, 2017 when Mimbs received the Superintendent’s
April 27 termination letter, her claim accrued on or about April 24,
2017, when she was informed by the principal that there would not
be a spot for her the following school year and she could resign.
The trial court granted summary judgment to the School
District solely on the statute of limitation ground. In so ruling, the
court observed that when Mimbs was deposed, she admitted that
she “knew during the conversation with [the principal] that there
would not be a spot for her in the following school year.” The court
determined that this admission, together with the April 26, 2017
letter from Mimbs’s attorney, demonstrated that Mimbs had
“discovered what she interpreted to be an adverse employment
action as defined by [OCGA § 45-1-4], at least as of April 26, 2017.”
The court thus concluded that the filing of Mimbs’s lawsuit on May
3, 2018, was “outside the one-year limitations period,” and the
that Mimbs could not establish a prima facie case of retaliation, and even if
she could, the School District had a legitimate, non-discriminatory reason for
not renewing her employment contract.
6
School District was “entitled to summary judgment in its favor.”
Mimbs appealed, contending that “the grant [of summary
judgment] was in error because a question of fact remains as to
whether the limitation period had run.” Mimbs, 357 Ga. App. at
299. The Court of Appeals saw no error and affirmed the trial court,
concluding that
Mimbs’[s] own evidence showed that on April 24, 2017,
the principal told her that her contract would not be
renewed for the following year and gave her the option of
resignation rather than non-renewal. It is also
undisputed that the district had no input into and did not
reconsider the principal’s decision not to renew Mimbs’[s]
contract. Rather, and only a few days later, the school
district formalized that decision in writing. Mimbs thus
received notice explaining an upcoming adverse
employment action on April 24, 2017, when she learned
that the principal had made a definitive decision to take
adverse action against her, such that the one-year statute
of limitation laid out in OCGA § 45-1-4 (e) (1) began to
run.
Id. at 302 (citation and punctuation omitted). On this basis, the
Court of Appeals held that “Mimbs filed her complaint more than
one year after discovering the alleged retaliation against her,” and
“the trial court did not err when it granted summary judgment to
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the school district on Mimbs’[s] whistleblower complaint.” Id. at
302-303.
2. We granted Mimbs’s petition for certiorari to determine
whether the trial court erred in granting summary judgment to the
School District on the basis that Mimbs failed to file her complaint
within one year after discovering the alleged acts of retaliation. See
OCGA § 45-1-4 (e) (1). To decide that issue, we look to the governing
statute.
Under OCGA § 45-1-4 (d) (2) and (3), “[n]o 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,” and “[n]o public employer shall
retaliate against a public employee 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.” OCGA
§ 45-1-4 (a) (5) defines “retaliation” as
the discharge, suspension, or demotion by a public
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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.
In her complaint against the School District, Mimbs raised one
count of retaliation under OCGA § 45-1-4. In that count, Mimbs
alleges that she was instructed by the principal and assistant
principal to change her students’ grades in violation of OCGA § 20-
2-989.20.4 Mimbs further alleges that, after being so instructed, she
engaged in protected activity by objecting to changing the grades,
reporting the unlawful instructions to Human Resources and the
principal, and retaining a lawyer. And, construing the evidence in
the light most favorable to Mimbs, we conclude that Mimbs
presented sufficient evidence in support of these allegations to raise
a genuine issue of material fact on summary judgment. See Nguyen
v. Sw. Emergency Physicians, P.C., 298 Ga. 75, 82 (3) (779 SE2d 334)
4OCGA § 20-2-989.20 (a) provides that “[n]o classroom teacher shall be
required, coerced, intimidated, or disciplined in any manner by the local board
of education, superintendent, or any local school administrator to change the
grade of a student.”
9
(2015) (“On appeal from the grant of summary judgment, we
construe the evidence most favorably towards the nonmoving party,
who is given the benefit of all reasonable doubts and possible
inferences” and is “only required to present evidence that raises a
genuine issue of material fact.” (citation and punctuation omitted)).
Mimbs also claims that as a result of her protected activities,
she suffered the following adverse employment actions: (1) a
February 2017 threat from the assistant principal to terminate
Mimbs if she did not alter her students’ grades as instructed; (2) an
April 2017 request from the principal that Mimbs resign; and (3) the
termination of Mimbs’s employment for the upcoming school year,
of which she received written notice from the Superintendent on
May 3, 2017. Based upon these allegedly adverse employment
actions, Mimbs filed a lawsuit against the School District on May 3,
2018.
We must now decide whether the Court of Appeals erred in
concluding that Mimbs’s lawsuit arising from these three alleged
adverse employment actions was not timely instituted under OCGA
10
§ 45-1-4 (e) (1). OCGA § 45-1-4 (e) (1) provides that the one-year
statute of limitation period begins to run on the date that the alleged
act of retaliation is discovered by the public employee. See id. See
also Tuttle v. Ga. Bd. of Regents of Univ. System of Ga., 326 Ga. App.
350, 353 (1) (a) (756 SE2d 585) (2014) (holding that where there was
no dispute as to the date that the plaintiff discovered the retaliation
at issue, the statute of limitation began to run on the date of the
discovery).
Like the trial court, the Court of Appeals concluded that Mimbs
suffered only one alleged adverse employment action – the non-
renewal of her contract for the upcoming school year – and that she
discovered this alleged act of retaliation on April 24, 2017, when “the
principal told her that her contract would not be renewed for the
following year and gave her the option of resignation rather than
non-renewal.” Mimbs, 359 Ga. App. at 302. The Court of Appeals
also concluded that the written notice of termination, which was
issued by the Superintendent on April 27, 2017 and received by
Mimbs on May 3, 2017, merely “formalized that decision” not to
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renew Mimbs’s contract for the upcoming school year. Id. 5 We
disagree.
The School District’s formal termination of Mimbs’s
employment was separate and distinct from the first two acts
alleged by Mimbs – i.e., the February 2017 threat of termination by
the assistant principal and the April 2017 request for resignation by
the principal – both in timing and context, as well as potential harm.
Following those first two incidents and before any formal
termination occurred, Mimbs could have resigned her employment
with the School District – arguably resulting in the accrual of
damages. And, as the School District’s counsel has acknowledged,
following the principal’s request for Mimbs’s resignation, the School
District could have decided not to terminate Mimbs’s employment
for the upcoming school year, disregarding the principal’s
recommendation not to renew Mimbs’s contract.
5The School District similarly argues that the written termination letter
Mimbs received on May 3, 2017 merely formalized the April 2017 incident and
should not be analyzed separately. The School District does not address the
February 2017 incident alleged by Mimbs in her complaint.
12
Having reached this conclusion, we need not decide whether
the first two incidents alleged by Mimbs constituted adverse
employment actions under OCGA § 45-1-4 (a) (5) because Mimbs
does not dispute that she discovered these actions at the time they
occurred in February 2017 and April 2017. And, because Mimbs did
not file her lawsuit against the School District until May 3, 2018,
more than “one year after discovering the [alleged] retaliation,” her
complaint was time-barred as to these alleged acts of retaliation.
OCGA § 45-1-4 (e) (1).
However, as to the third incident alleged by Mimbs – the School
District’s formal termination of Mimbs’s employment for the
upcoming school year – this kind of action clearly falls within the
definition of an adverse employment action under OCGA § 45-1-4 (a)
(5). See id. (“‘Retaliate’ or ‘retaliation’” includes “the discharge . . .
by a public employer of a public employee.”). And, because Mimbs
undisputedly received notice of the termination on May 3, 2017, her
complaint was timely as to this alleged act of retaliation. See OCGA
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§ 45-1-4 (e) (1). 6
For these reasons, we conclude that the Court of Appeals erred
in determining that Mimbs’s lawsuit was filed outside the one-year
limitations period set forth in OCGA § 45-1-4 (e) (1) with respect to
her termination for the upcoming school year, which she discovered
on May 3, 2017. Therefore, we reverse in part the judgment of the
Court of Appeals with direction to remand to the trial court for
further proceedings consistent with this opinion.
Judgment reversed in part and case remanded with direction.
All the Justices concur, except Colvin, J. disqualified.
6 Despite this ruling, some of us think it important to remind litigants
that it is better to err on the side of caution in determining when to file a
lawsuit, as waiting until the last day of the applicable statute of limitations
period can often expand the litigation and lead to the unnecessary expenditure
of judicial resources in ascertaining the timeliness of a party’s claims.
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