Mark A. Thompson v. Dekalb County, Georgia ( 2022 )

FIRST DIVISION
BARNES, P. J.,
MILLER, P.J., and GOBEIL, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
March 7, 2022
In the Court of Appeals of Georgia
A21A1754. THOMPSON v. DEKALB COUNTY, GEORGIA.
GOBEIL, Judge.
In this Georgia Whistleblower Act1 (“GWA”) action filed by Mark A.
Thompson, the trial court granted summary judgment to Thompson’s former
employer, DeKalb County. Thompson appeals, contending that the trial court erred
in finding Thompson did not make a prima facia case of whistleblower retaliation ,
in accepting DeKalb County’s reason for terminating Thompson as true, and in failing
to consider his evidence of pretext. Thompson also argues that the trial court erred by
resolving factual disputes and failing to view the evidence in the light most favorable
to Thompson; and in finding that his disclosures were not protected because they
were “widely known.” For the reasons that follow, we affirm.
1
OCGA § 45-1-4.
On appeal from the grant of summary judgment, this court applies
a de novo standard of review. Summary judgment is proper when there
is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. We must view the evidence, and
all reasonable inferences drawn therefrom, in the light most favorable
to the nonmovant.
Tuohy v. City of Atlanta, 331 Ga. App. 846, 846 (771 SE2d 501) (2015) (citations
omitted).
So viewed, the record shows that Thompson began working for the DeKalb
County Law Department in 2003. From 2010 through 2014, he worked as a senior
assistant county attorney. In 2010, County Attorney Lisa Chang assigned Thompson
to represent DeKalb County in a breach of contract action filed in DeKalb County
Superior Court by Paul Champion d/b/a Champion Tree Service, asserting that it was
not paid for all work performed for the county (the “Champion litigation”).2
During the course of representing DeKalb County in the Champion litigation,
Thompson allegedly discovered that Champion overbilled the county, did not perform
work it claimed to have performed, and engaged in acts of fraud. Thompson also
2
Both the Champion litigation and the underlying GWA action were filed in
the Superior Court of DeKalb County. For ease of reference, when referring to
proceedings in the Champion litigation, we will refer to the “superior court.” When
referring to proceedings in the underlying GWA action, we will refer to the “trial
court.”
2
found information linking a county employee to suspicious acts that appeared
fraudulent. Thompson notified Chang of his findings; and, although she initially
dissuaded him from further disclosures, he eventually reported the alleged criminal
activities to the DeKalb County District Attorney. In January 2012, a special purpose
grand jury was empaneled to investigate alleged corruption in DeKalb County.
Thompson testified before the grand jury in February 2012 about his findings
regarding the alleged criminal activities relating to the Champion litigation. The
grand jury subsequently issued a report of its findings in January 2013.
During his investigation into the Champion matter, Thompson discovered what
he considered to be flaws in DeKalb County’s bidding and contract formation
process, which he believed made it easier for vendors to defraud the county.
Specifically, he believed DeKalb County failed to adhere to OCGA § 36-10-13 in
forming contracts because the contracts were not entered on the County Commission
meeting minutes.
In March 2013, Overtis Brantley became the interim County Attorney and
ultimately the permanent County Attorney. When she arrived, she met one-on-one
3
OCGA § 36-10-1 provides: “All contracts entered into by the county
governing authority with other persons in behalf of the county shall be in writing and
entered on its minutes.”
3
with every attorney in the law department. In their introductory meeting, Brantley
discussed the Champion litigation with Thompson. Brantley described Thompson’s
synopsis of the case as “ a little incoherent,” but she “could tell it was something he
was passionate about.” Thompson explained to Brantley that he had disclosed the
corruption to the District Attorney and testified before the special purpose grand jury.
Thompson and Brantley had several tense interactions. For instance, Thompson
thought that Brantley was mocking him when discussing the criminal activities,
particularly when she responded that “people steal and people lie.” At another
meeting, when Thompson told Brantley that Champion was demanding nearly
$900,000, she responded “that’s Monopoly money.” To which Thompson replied
“No. That’s taxpayer money.”
In 2013, Thompson wanted to raise the defense that the contract with
Champion did not comply with Georgia law.4 After being given permission,
Thompson filed an amended answer denying that a contract existed. The superior
court subsequently ruled that the contract was valid and enforceable.
4
According to Thompson, he wanted to raise the contract defense earlier, but
Chang refused, informing him that denying the validity of the Champion contract
could jeopardize every contract in DeKalb County.
4
Thompson requested that outside counsel be appointed to assist him with the
Champion litigation, and Brantley agreed in mid-2014 to retain Anita Thomas.
DeKalb County filed a motion for summary judgment in the Champion litigation,
asserting, in part, that it was immune from the suit based on sovereign immunity. The
superior court denied DeKalb County’s motion, and the county appealed. Brantley
and Thompson disagreed as to what arguments to include on appeal. Thompson
wanted to emphasize the lack of a valid contract and alleged corruption related to the
Champion litigation because he thought evidence of Champion’s wrongdoing
provided “a good reason for [DeKalb County] to not honor [the] contract.” However,
Brantley and Thompson’s managing attorney, Laura Johnson, sought to focus the
appeal on the purely legal issue of sovereign immunity to ensure a “clean record.”
Thompson ultimately was critical of Thomas’s work, writing in an e-mail that outside
counsel “ha[d] obviously never prepared a motion for summary judgment before.”
After the decision was made to exclude the extraneous criminal allegations from the
appeal of the sovereign immunity issue, in November 2014, Thompson told Johnson
that he wished to withdraw from the Champion litigation.
Brantley was extremely upset about Thompson’s decision to withdraw from the
Champion litigation. She believed his continued argument as to what to include in the
5
appeal (despite her stated strategic reasons for the decision) undermined her authority
as the final decision-maker concerning legal strategy. In a December 2014 meeting,
Brantley told Thompson that he was not a “team player,” that he acted like “a child”
and “the smartest person in the room,” and that his behavior was “ugly.” Brantley
believed Thompson, as an at-will employee, could be fired for withdrawing from the
Champion litigation as insubordination. Johnson urged Brantley not to fire
Thompson, but to let him withdraw, in the hopes that if he worked on matters other
than the Champion litigation, “his behavior might revert to something within an
acceptable range[.]”
In February 2015, this Court dismissed the appeal from the denial of the motion
for summary judgment for DeKalb County’s failure to follow the interlocutory appeal
procedure (OCGA § 5-6-34 (b)).5 Champion then moved for attorney fees against
DeKalb County and Thompson individually. Champion accused Thompson of
presenting false information to the superior court regarding the work Champion
performed and delaying the proceedings. Thompson wanted to respond to the motion
for fees by naming the DeKalb County employee who had allegedly given him the
5
See Case No. A15A0972 (decided Feb. 10, 2015).
6
false information, but Johnson disagreed with this strategy, as she did not believe it
would help Thompson or the County.
On May 29, 2015, Brantley, Thompson, Johnson, and Thomas met to discuss
the motion for attorney fees. At the meeting, Thompson became upset and behaved
in a way that Brantley considered unprofessional. At the end of that meeting, Brantley
told Thompson to look for another job. About three weeks later and after another
meeting, Brantley sent Thompson a termination letter, in which, among other
concerns, she stated that Thompson “responded to stressful litigation situations in a
hostile and arrogant manner when interacting with me and others within this office
during recent months[,]” and “[t]his type of behavior is not consistent with the team
environment I have been working to build in the law department.” The letter gave
Thompson the option to resign, but he declined, and his employment was terminated
in June 2015.
In May 2016, Thompson filed a civil action in the trial court alleging he was
terminated by DeKalb County in violation of the GWA. Thompson pointed to his
actions and disclosures pertaining to the Champion litigation and associated
corruption as protected activities and asserted that DeKalb County unlawfully
retaliated against him for those actions. He then filed an amended complaint
7
containing counts for unlawful breach of the GWA, attorney fees pursuant to the
GWA, various theories of unlawful termination based on race, and age discrimination
under the Age Discrimination in Employment Act.
Because these additional claims presented federal questions, the case was
removed to the United States District Court for the Northern District of Georgia in
June 2017. Thereafter, DeKalb County moved for summary judgment. The federal
magistrate judge issued a Final Report and Recommendation, recommending that
summary judgment be granted on all counts of the complaint. After review of the
report, the district court judge granted summary judgment to DeKalb County on each
of Thompson’s federal claims, but declined to exercise supplemental jurisdiction over
the state GWA claims, which were remanded to the trial court.
On remand, DeKalb County again filed for summary judgment on the GWA
claims. The trial court subsequently granted summary judgment to DeKalb County.
The trial court found that either the temporal proximity between DeKalb County’s
knowledge of protected activities and the adverse employment action was not close
enough to be sufficient evidence of causality, or the activities were merely litigation
strategy disagreements and not disclosures of violations of laws, rules, or regulations.
Further, the trial court noted that the corruption unearthed during the Champion
8
litigation was widely known and therefore not covered by the GWA. Finally, the trial
court found that Thompson failed to show that the reasons for his termination were
pretextual. This appeal followed.
1. In related claims of error, Thompson asserts that the trial court erred by (a)
concluding that he failed to establish a prima facie case of whistleblower retaliation,
(b) accepting DeKalb County’s reason for terminating Thompson as true, and (c)
disregarding his evidence of pretext. We disagree.
The GWA prohibits a public employer from retaliating 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.” OCGA § 45-1-4 (d) (2).
Retaliation refers to 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[.]”
OCGA § 45-1-4 (a) (5). An employee asserting a claim under the GWA must show
that there is some causal relation between the employer’s retaliation and the
employee’s disclosure of the employer’s violation or noncompliance. Murray-
Obertein v. Ga. Govt. Transparency & Campaign Finance Comm., 344 Ga. App. 677,
681 (812 SE2d 28) (2018).
9
In analyzing claims brought pursuant to the GWA, we apply the burden-
shifting analysis set forth in McDonnel Douglas Corp. v. Green, 411 U. S. 792, 802-
803 (II) (931 SCt 1817, 36 LE2d 668) (1973). See Tuohy, 331 Ga. App. at 849 (1),
851 (3) (a) n. 6 (“We find the Eleventh Circuit cases using the McDonnell Douglas
framework to analyze federal discrimination and retaliation cases persuasive” in
analyzing whistleblower claims brought pursuant to the GWA.).
Under the McDonnell Douglas framework, the plaintiff must first make
a prima facie case of retaliation. If the plaintiff makes a prima facie case,
the burden of production shifts to the employer to articulate some
legitimate, nondiscriminatory reason for the employment decision. If the
employer successfully meets this burden of production, then the burden
shifts back to the plaintiff to show that each proffered reason was
pretext.
Tuohy, 331 Ga. App. at 849-850 (1) (citations and punctuation omitted).
(a) Thompson’s prima facie case of retaliation. Thompson contends he
engaged in the following actions that should be considered protected activity under
the GWA: (1) his uncovering fraudulent and criminal activities concerning the
Champion litigation, his reporting this to the District Attorney, and his testifying to
the grand jury about it; (2) his discovery and disclosure to his supervisors that
DeKalb County’s contracting procedures were illegal under Georgia law in a way that
10
made fraud easier; (3) his public disclosure of evidence of fraud and contracting
illegality in court pleadings; (4) his withdrawal from the Champion litigation when
his supervisors declined to include the evidence of corruption in the appeal; and (5)
his attempt to expose another county employee who lied during the course of the
investigation and his supervisors’ refusal to include the employee’s name in court
pleadings.
As an initial matter, the trial court ruled that Thompson failed to establish that
the first three asserted acts of whistleblower activity were causally connected to his
employment termination because he did not demonstrate a close temporal proximity
between DeKalb County’s awareness of his protected activity and the adverse
employment action. In Freeman v. Smith, we recognized that “[i]f there is a
substantial delay between the protected expression and the adverse action in the
absence of other evidence tending to show causation, the complaint of retaliation fails
as a matter of law.” 324 Ga. App. 426, 431 (1) (750 SE2d 739) (2013) (citation and
punctuation omitted), overruled on other grounds by Frankin v. Pitts, 349 Ga. App.
544, 552 (1) (c) (826 SE2d 427) (2019). “A three to four month disparity between the
statutorily protected expression and the adverse employment action is not enough”
to show a causal connection. Freeman, 324 Ga. App. at 431 (1) (citation and
11
punctuation omitted). Here, the first three allegedly covered disclosures occurred
between 2010 and 2014, and Thompson was not fired until 2015. The lack of
temporal proximity between the first three allegedly protected disclosures, without
more, was too great to show causation, and Thompson’s “complaint of retaliation fails
as a matter of law.” Id. (citation and punctuation omitted).
Even assuming that Thompson had established a prima facie case for any of the
allegedly protected disclosures, the burden of production shifts to DeKalb County to
articulate some legitimate, nondiscriminatory reason for the employment decision,
which it provided. See Tuohy, 331 Ga. App. at 850 (2) (noting that courts “need not
address whether [employee] established a prima facie case of retaliation” where
employee “failed to satisfy his burden of establishing that the proffered reason for his
termination was pretextual”).
(b) DeKalb County’s burden of production to articulate legitimate,
non-discriminatory reasons for the termination. DeKalb County stated that it made
the decision to terminate Thompson because of a course of conduct in which he was
hostile with supervisors and in disagreeing with strategy decisions. And, DeKalb
County further offered that his arrogant behavior undermined the team environment
Brantley was trying to foster in the law department.
12
“The employer need not persuade the court that its proffered reasons are
legitimate, as its burden is merely one of production, not proof. This intermediate
burden is exceedingly light.” Harris v. City of Atlanta, 345 Ga. App. 375, 378 (2) (a)
(813 SE2d 420) (2018) (citation and punctuation omitted). Here, statements and
affidavits in the record, specifically the affidavits of Thompson, Brantley, and
Johnson, support DeKalb County’s reasons and constitute “legitimate,
nondiscriminatory reason[s] for [Thompson’s] termination.” Id. (citation and
punctuation omitted).
(c) Thompson’s burden to show pretext. Because DeKalb County met its
burden to proffer a nondiscriminatory reason for the termination, the burden shifts to
Thompson to demonstrate that each proffered reason was pretextual.
To avoid summary judgment [on a GWA claim], a plaintiff must present
significantly probative evidence on the issue of pretext because the
plaintiff has the burden of establishing pretext. A defendant’s given
reason is not pretextual unless it is shown both that the reason was false,
and that discrimination or retaliation was the real reason. If the proffered
reason is one that might motivate a reasonable employer, an employee
must meet that reason head on and rebut it, and the employee cannot
succeed by simply quarreling with the wisdom of that reason, or
showing that the decision was based on erroneous facts.
13
Harris, 345 Ga. App. at 378-379 (2) (b) (citations, punctuation, and footnotes
omitted).
Here, DeKalb County presented evidence that Thompson’s separation from his
employment was the result of his “hostile and arrogant” behavior toward his
supervisor and other employees. “Thus, it was incumbent on [Thompson] to present
evidence to establish the existence of a fact issue, which could establish this stated
legal reason was merely pretext for dismissing [him] based on [his] whistleblowing
activity.” Caldon v. Bd. of Regents of Univ. System of Ga., 311 Ga. App. 155, 159
(715 SE2d 487) (2011). Thompson does not contest that he informed Johnson and
Brantley that their decision regarding what information to include in the appeal was
“dumb.” Nor does he challenge DeKalb County’s evidence that he disagreed with
Brantley’s and Johnson’s proposed litigation strategy. Indeed, Brantley thought that
Thompson’s continued disagreement with her on the Champion litigation appeal
strategy (despite her asserted reasons for the strategy) “was the greatest amount of
disrespect that [Thompson] could have given [Brantley]” because she alone had final
decision-making authority on matters of legal strategy. Notably, when asked about
his termination letter, Thompson acknowledged that Brantley had informed him that
he acted disrespectfully toward her. Instead of meeting DeKalb County’s stated
14
reasons for his employment termination “head on,” he instead “quarrel[s] with the
wisdom of [those] reasons.” Harris, 345 Ga. App. at 379 (2) (b) (citation and
punctuation omitted).
In sum, Thompson’s failure to rebut the county’s direct evidence that he was
terminated for the reasons stated in the termination letter is insufficient to create an
issue of fact with regard to pretext. Accordingly, because Thompson “has failed to
establish that a genuine issue of material fact existed as to the reason for [his]
termination, we affirm the trial court’s grant of summary judgment to [ ] [DeKalb
County].” Caldon, 311 Ga. App. at 160.
2. Thompson also argues that the trial court failed to weigh the evidence in his
favor and impermissibly resolved factual disputes. We disagree with Thompson’s
characterization of the trial court’s order. As set forth above, DeKalb County’s
proffered reason for termination is supported by the record, even when viewed most
favorably to Thompson. Moreover, Thompson has failed to point to evidence that
would establish a fact question for the County’s motive, and has admitted to the
behavior that served as the basis for his employment termination. See Anglin v.
Harris, 244 Ga. App. 140, 142 (1) (534 SE2d 874) (2000) (“A shadowy semblance
15
of an issue is not enough to defeat the motion for summary judgment.”) (citation and
punctuation omitted). We therefore find no merit to this claim of error.
3. Finally, Thompson argues that the trial court erred by ruling that disclosures
of widely known information is not covered by the GWA. However, based on our
holding in Division 1, supra, that Thompson failed to demonstrate a triable issue as
to pretext, we need not address this claim of error.
Judgment affirmed. Barnes, P. J., and Miller, P.J., concur.
16