Franklin v. Pitts. , 349 Ga. App. 544 ( 2019 )

WHOLE COURT
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.
http://www.gaappeals.us/rules
March 15, 2019
In the Court of Appeals of Georgia
A18A1724. FRANKLIN v. PITTS.
BROWN, Judge.
In the second appearance of these parties before this Court, Dedrain Franklin
appeals from the trial court’s order granting summary judgment in favor of Robert
Pitts (“the County”), whom Franklin sued in his official capacity as chairman of the
Fulton County Board of Commissioners. In five enumerations of error, Franklin
asserts that the trial court erred by failing to find that genuine issues of fact existed
with regard to various elements of her claims against the County under the Georgia
Whistleblower Act, OCGA § 45-1-4. For the reasons explained below, we find that
Franklin cannot establish a genuine issue of material fact with regard to essential
elements of her whistleblower claim — adverse employment action and pretext.
“On appeal, we review the grant or denial of summary judgment de novo,
construing the evidence and all inferences in a light most favorable to the nonmoving
party.” (Citation and punctuation omitted.) Seki v. Groupon, Inc., 333 Ga. App. 319
(775 SE2d 776) (2015). The majority of the relevant facts were delineated in our
previous opinion, addressing a statute of limitation issue, as follows:
Viewing the evidence in the light most favorable to the plaintiff,
Franklin has been an employee of the County since 2007, working in the
health department. In 2011, she became a Financial Systems
Coordinator, the duties of which included credentialing medical
providers by submitting information to various care management
organizations. In that capacity, she collected from providers information
about their health status, demographics, and various numerical
identifiers. She had additional responsibilities for credit card payment
processing that involved handling confidential medical information from
patients, including their diagnoses and demographics. In March 2012,
Franklin was moved from a private office to a cubicle.
That move triggered a series of complaints by Franklin premised
on the notion that working in a cubicle would expose providers’ and
patients’ protected health information to the general public in violation
of the law. In March 2012, she expressed concerns to her supervisors
that moving to a cubicle could violate the confidentiality requirements
of the federal Health Insurance Portability and Accountability Act
[HIPAA]. Later that month, she filed an internal written grievance to
that effect. In July 2012, the County’s grievance review committee sent
Franklin a recommended settlement order, approved by the County
manager, finding that the health department had not erred in its practices
and thus denying Franklin’s grievance. The grievance committee
recommended that the health department provide a secured office for
Franklin or any other employee processing documents containing
confidential health information.
2
Franklin contends that she experienced retaliation asa result of her
grievance. After she filed her grievance, her credit card processing
duties were assigned to another employee, who was moved from a
cubicle to an office. Her credentialing duties [also] were assigned to
another employee. . . .
Franklin also claims that she experienced other retaliation in her
day-to-day interactions with management. She contends she was denied
a request to attend a certain training. . . . Franklin notes that she asked
to leave work early in December 2012 but that request was denied
(although she left work early, anyway, and was not disciplined). She
complains that management ignored other leave requests after she filed
her grievance, including in early 2013. She points to an April 2014
incident in which management required an original of her absence
excuse for some volunteer work, claiming that also was retaliation.
Franklin also alleges that management required her to submit documents
for jury duty leave that were not required of others, required a doctor’s
note after she took one day of intermittent FMLA leave, and generally
harassed her for an inability to complete her work in a timely manner
and made it harder for her to do her job; it is not apparent from the
record when those particular events occurred, however.
Franklin also claims that the County retaliated by failing to hire
her for two job transfers [promotions] for which she applied. She
applied for a program administrator’s position in July 2012 and was
interviewed in August 2012, but a County official said that she didn’t
get the job because of her low interview scores. She also applied for a
health program manager position but was informed by the County’s
recruiting division on January 25, 2013, that she had not been selected
because she did not meet the minimum requirements for the position.
Franklin filed a second grievance that same month, claiming retaliation
and seeking transfer out of her department, which was denied in June
2013.
Franklin v. Eaves, 337 Ga. App. 292 (787 SE2d 265) (2016) (Franklin I).
3
After this Court reversed the trial court’s grant of summary judgment based
upon the expiration of the statute of limitation, Franklin I, 337 Ga. App. at 299-300
(2), the trial court afforded Franklin additional time for discovery before ruling on the
County’s motion for summary judgment. In its order, the trial court concluded that
Franklin failed to establish a genuine issue of material fact with regard to disclosure
of a violation of or noncompliance with HIPAA or a causal link between her alleged
protected activity and any adverse employment action. It also concluded that other
than her denied promotions, she could not establish that she suffered an adverse
employment action, and that with regard to these denied promotions she did not meet
her burden of presenting proof to challenge the legitimate, non-retaliatory reason for
her failure to receive the promotions.
The Georgia Whistleblower Act precludes 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,” 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.” OCGA § 45-1-4 (d) (2) and (3).
Prohibited retaliation includes:
4
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.
OCGA § 45-1-4 (a) (5).
In construing these provisions, we have held that a public employee must
establish “that (1) she was employed by a public employer; (2) she made a protected
disclosure or objection; (3) she suffered an adverse employment action; and (4) there
is some causal relationship between the protected activity and the adverse
employment action. [Cit.]” Murray-Obertein v. Ga. Govt. Transparency & Campaign
Finance Comm., 344 Ga. App. 677, 680-681 (812 SE2d 28) (2018). When analyzing
claims brought under the Georgia Whistleblower Act, we apply the same burden-
shifting analysis established by the United State Supreme Court for retaliation cases
brought under Title VII of the Civil Rights Act of 1964. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (II) (93 SCt 1817, 36 LE2d 668) (1973);
5
Tuohy v. City of Atlanta, 331 Ga. App. 846, 848-850 (1) (771 SE2d 501) (2015).1
Under this 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.
(Citation, punctuation and footnote omitted.) Harris v. City of Atlanta, 345 Ga. App.
375, 377 (813 SE2d 420) (2018).
On appeal, Franklin contends that the trial court erred by requiring her to prove
an actual violation of HIPAA as opposed to reasonable cause to believe that Fulton
County violated or failed to comply with HIPAA or Fulton County regulations. See
OCGA § 45-1-4 (d) (3). She also contends that the trial court erred by failing to
conclude that all of her claims of retaliation constituted adverse employment action,
that there was a causal relation between her protected activity and the adverse
employment action, and that the County’s proffered explanations for the adverse
1
In our application of this analysis, we have previously found Eleventh Circuit
decisions persuasive. Tuohy, 331 Ga. App. at 851 (3) (a), n.6.
6
employment action were pretextual. We begin our analysis with the adverse
employment action element of Franklin’s claim.
1. Adverse Employment Action. While Franklin contends that the trial court
erred by concluding that she did not suffer from adverse employment action, the
record shows that the trial court characterized the denial of two specific job
opportunities as denied promotions sufficient to establish a prima facie case of an
adverse employment action.2 We will therefore only consider whether the following
constituted adverse employment action: delaying a request to attend a training
session; change of job duties from credentialing providers and credit card processing
to electronic funds transfer duties; denial of leave requests and requests for
documentation of leave; and the denial of a third alleged transfer opportunity.3
(a) Freeman v. Smith. Our research has revealed only one Georgia decision
addressing the standard for determining whether a public employee has met her
burden of proving “adverse employment action” under the Georgia Whistleblower
2
Based upon our holding in Division 2, we need not address this portion of the
trial court’s ruling and can assume, without deciding, that the denied promotions
constitute adverse employment action.
3
With regard to the last transfer opportunity, Franklin submitted no evidence
showing that the County denied her a specific transfer opportunity.
7
Act. In Freeman v. Smith, 324 Ga. App. 426 (750 SE2d 739) (2013), this Court
addressed the validity of an administrative employee’s claim that she suffered
multiple instances of retaliation for her role as a whistleblower. Id. at 432 (1). We
first addressed whether this Court should apply the burden-shifting framework of
McDonnell Douglas, supra. We noted that not all jurisdictions had accepted this
framework, as well as difficulties inherent in its application, before concluding that
“[w]e are not required to decide4 whether the McDonnell Douglas framework should
be adopted in whistleblower retaliation cases because, under any standard, [the
plaintiff] has not pointed to record evidence that any materially adverse employment
action was a matter of retaliation for her whistle-blowing activity.” Id. at 429 (1).
After so stating, we outlined four occasions on which the plaintiff claimed she
made protected disclosures under the Georgia Whistleblower Act. We then addressed
the causation element, stating, “the only evidence [the plaintiff] has presented of a
causal connection is the temporal proximity between her disclosures and the
materially adverse employment actions. But, . . . the only actions that occurred less
4
In Tuohy, supra, this Court later expressly adopted the McDonnell Douglas
framework. 331 Ga. App. at 848-849 (1).
8
than three months after the disclosures were not materially adverse.” Freeman, 324
Ga. App. at 432 (1). We then analyzed adverse employment action as follows:
“[A] plaintiff must show that a reasonable employee would have found
the challenged action materially adverse, meaning that it might well
have dissuaded a reasonable employee from making [the
statutorily-protected disclosure].” Cobb v. City of Roswell, 533 Fed.
Appx. 888, 896, 2013 U. S. App. LEXIS 16608 at *18 (11th Cir. 2013)
(citing Burlington Northern & Santa Fe R. Co. v. White, 548 U.S. 53,
67-68 (126 SCt 2405, 165 LE2d 345) (2006)). The actionable employer
conduct must be “significant,” rather than “trivial.” Burlington
Northern, 548 U.S. at 67-68. We conclude that a reasonable employee
would not have found this conduct — incorrectly warning [the plaintiff]
that an employee would be transferred — to be materially adverse. For
these reasons, it is immaterial that this warning occurred in the same
month in which [the plaintiff] relayed her concerns. . . .
Id. Based upon this language, it is clear that this Court applied the standard
established by the United States Supreme Court in Burlington, supra, to hold that the
plaintiff in Freeman, with regard to one of her retaliation claims, had failed to
establish an adverse employment action.5
5
Judge Goss’s special concurrence points to the italicized language in the
following quote from Freeman, supra, to support its argument that we need not
overrule Freeman: “[w]e are not required to decide whether the McDonnell Douglas
framework should be adopted in whistleblower retaliation cases because under any
9
(b) Standard for Adverse Employment Action in Title VII Retaliation Cases.
Our application of the Burlington standard for adverse employment action in federal
retaliation cases to retaliation cases under the Georgia Whistleblower Act in
Freeman, supra, is understandable at first glance. However, an examination of the
differences between the federal retaliation statute and the Georgia Whistleblower Act,
as well as the United States Supreme Court’s rationale in Burlington, supra, makes
it clear that we should not have done so.
In Burlington, supra, the United States Supreme Court addressed whether the
standard for adverse employment action in employment discrimination cases brought
under the substantive discrimination section of Title VII should apply to retaliation
cases brought under a different section of Title VII. 548 U.S. at 56. It noted a split
in Circuit Courts of Appeal decisions with regard to “whether the challenged action
has to be employment or workplace related and about how harmful that action must
be to constitute retaliation.” (Emphasis supplied.) Id. at 60 (II). At that time, three
Circuit Courts of Appeal “appl[ied] the same standard for retaliation that they
standard, [the plaintiff] has not pointed to record evidence that any materially adverse
employment action was a matter of retaliation for her whistle-blowing activity.”
(Emphasis supplied.) 324 Ga. App. at 429 (1). This language, however, clearly refers
to the McDonnell Douglas burden-shifting framework; it is not a reference to various
standards for analyzing adverse employment action.
10
appl[ied] to a substantive discrimination offense, holding that the challenged action
must result in an adverse effect on the terms, conditions, or benefits of employment.”
(Citations and punctuation omitted.) Id.
In answering the question before it, the Supreme Court found the language of
the different provisions significant. Burlington, 548 U.S. at 61 (II) (A). It quoted the
following language from Title VII’s core anti-discrimination provision (often referred
to as a substantive discrimination claim):
It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s race, color, religion,
sex, or national origin. § 2000e-2(a)
(Punctuation omitted; emphasis in original.) Id. at 61-62 (I) (A). It then contrasted
this language with the following language contained in the anti-retaliation provision:
11
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees or applicants for employment
because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding,
or hearing under this subchapter. § 2000e-3(a).
(Punctuation omitted; emphasis in original.) Id. at 62 (II) (A).
Based upon the different language in the two provisions, the Supreme Court
concluded that the phrase “discriminate against” in the anti-retaliation provision of
Title VII “does not confine the actions and harms it forbids to those that are related
to employment or occur at the workplace.” Burlington, 548 U.S. at 57. See also 42
U.S. C. § 2000e-3 (a). In reaching this conclusion, the Supreme Court explained that
with regard to a substantive discrimination case under Title VII, the words “‘hire,’
‘discharge,’ ‘compensation, terms, conditions, or privileges of employment,’
‘employment opportunities,’ and ‘status as an employee’ – explicitly limit the scope
of that provision to actions that affect employment or alter the conditions of the
workplace.” Burlington, 458 U.S. at 62 (II) (A). With regard to “the level of
seriousness to which harm must rise before it becomes actionable retaliation,” id. at
67 (II) (B), the Supreme Court concluded that “a plaintiff must show that a reasonable
12
employee would have found the challenged action materially adverse, which in this
context means it might well have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” (Citation and punctuation omitted; emphasis
supplied.) Id. at 68 (II) (B).
After Burlington was decided, federal courts have commented “that the Title
VII [anti-]retaliation provision protects an employee from a wider range of conduct
than the [substantive] discrimination provision does.” Phelan v. Cook County, 463
F3d 773, 781 (II) (C) (1), n.3 (7th Cir. 2006). See also Crawford v. Carroll, 529 F3d
961, 974 (III) (A), n.14 (11th Cir. 2008) (noting that “materially adverse” standard
in Burlington for retaliation cases is “distinct and different” from the “serious and
material change in the terms, conditions or privileges of employment” standard
applied to Title VII substantive discrimination claims) (punctuation omitted). The
“materially adverse” test for Title VII retaliation cases has also been described as a
more “liberal” test for adverse employment action. Crawford, 529 F3d at 974 (III)
(A). See also Herron-Williams v. Ala. State Univ., 287 FSupp.3d 1299, 1317 (V) (B)
(1) (M.D. Ala. 2018). Indeed, the Eleventh Circuit stated that “Burlington also
strongly suggests that it is for a jury to decide whether anything more than the most
petty and trivial actions against an employee should be considered ‘materially
13
adverse’ to [her] and thus constitutes adverse employment actions. [Cit.]” Crawford,
529 F3d at 973 (III) (A), n.13.
For these reasons, we disagree with Judge Doyle’s conclusion in her special
concurrence that “[b]oth standards . . . result in the same outcome for both substantive
and retaliation claims.” Analysis of whether the challenged action would have
dissuaded a reasonable worker from making or supporting a charge of discrimination
is different from an analysis of whether an employee suffered a serious and material
change in the terms, conditions, or privileges of employment. As the Eleventh Circuit
recently stated, the standard in retaliation cases under Burlington “is now viewed
from the perspective of a reasonable employee, when previously courts looked to
concrete changes in the employee’s status, such as firings, demotions, or withheld pay
raises.” Brathwaite v. School Bd. of Broward County, No. 17-13750, 2019 U.S. App.
LEXIS 6108 (IV) (B) (11th Cir. February 28, 2019). Moreover, there would have
been no need for the United States Supreme Court to articulate a new standard for
retaliation cases in Burlington if the standards were essentially the same.
Additionally, any overlap in the standards and the same result for both retaliation and
substantive discrimination claims in one particular case, as pointed out in Judge
Doyle’s special concurrence, does not mean that the same result obtains in every case.
14
See, e. g., Killen v. Northwestern Human Svcs., No. 06-4100, 2007 U. S. Dist. LEXIS
66602 at *14, 25-26 (E.D. Pa. September 7, 2007) (finding that placement of
employee on administrative leave did not show sufficient adverse employment action
for Title VII substantive discrimination claim; application of Burlington standard
resulted in conclusion that employee did show adverse employment action for her
Title VII retaliation claim based upon the same facts).
(c) The Burlington Standard Should Not Be Applied To The Georgia
Whistleblower Act. Having reviewed the rationale and holding of Burlington, we now
turn to deciding whether it was appropriate for Freeman to apply the more liberal
“materially adverse” standard for Title VII retaliation claims to actions brought under
the Georgia Whistleblower Act. Although the Georgia Whistleblower Act does not
define “adverse employment action,” the definition of “retaliate” or “retaliation”
makes clear that an “adverse employment action” must be “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.” (Emphasis supplied.) OCGA § 45-1-4 (a) (5). As
this language more closely tracks the statutory language for a Title VII discrimination
claim, as opposed to a Title VII retaliation claim, we conclude that this Court should
15
not have applied the standard from Burlington in Freeman, supra. We therefore
overrule Freeman only to the extent that it applied the standard for adverse
employment action in Title VII retaliation cases to a Georgia Whistleblower Act case.
Specifically, the portion of Freeman holding that an employee need only “show that
a reasonable employee would have found the challenged action materially adverse,
meaning that it might well have dissuaded a reasonable employee from making the
statutorily-protected disclosure.” (Citations and punctuation omitted.) Freeman, 324
Ga. App. at 432 (1).6
(d) Adverse Employment Action Under The Georgia Whistleblower Act. Having
concluded that the standard for Title VII retaliation cases should not have been
6
We disagree with the implication in Judge Doyle’s special concurrence that
we need not overrule this portion of Freeman because it merely applied, rather than
adopted, the Burlington standard. In our view, application versus adoption is a
distinction without a difference. See, e. g., Diamond v. American Family Corp., 186
Ga. App. 681, 684 (1) (368 SE2d 350) (1988) (stating “true reason these opinions
should be overruled is that they applied the wrong standard of review for liability”)
(punctuation omitted; emphasis supplied). We are “obligated to continue to rely upon
the older precedent from [this C]ourt until such time as the older law [is] properly
overruled by [this C]ourt or reversed or overruled by [the Supreme Court of
Georgia].” White v. State, ___ Ga. ___ (3) (Case No. S18G0365, decided February
4, 2019). As Freeman applied the Burlington standard, application of a more narrow
standard in this case, without overruling Freeman, would cause confusion for the
bench and bar as to which standard should be applied going forward.
16
applied in Freeman, we now examine the appropriate standard to be applied to the
undefined phrase “adverse employment action” in the Georgia Whistleblower Act.
As we have already stated, prohibited retaliation includes “the discharge, suspension,
or demotion . . . 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). In determining the meaning of this phrase, “we must afford the
statutory text its plain and ordinary meaning, we must view the statutory text in the
context in which it appears, and we must read the statutory text in its most natural and
reasonable way, as an ordinary speaker of the English language would.” (Citation and
punctuation omitted.) White v. State, ___ Ga. ___ (1) (Case No. S18G0365, decided
February 4, 2019).
Here, the phrase appears in a list defining retaliation as “the discharge,
suspension, or demotion . . . or any other adverse employment action. . . .” OCGA §
45-1-4 (a) (5). “The legal maxim ‘noscitur a sociis’ means generally that a word or
phrase may be known from its accompanying terms. Under this rule, words of general
import, when associated together with other words of more specific import, are
limited in a sense analogous to the more specific phrases.” (Citation omitted.)
Strickland v. Phillips Petroleum Co., 248 Ga. 582, 583 (1) (284 SE2d 271) (1981);
17
Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
195 (2012) (noting that this canon “especially holds that ‘words grouped in a list
should be given related meanings’”) (citation and footnote omitted). Additionally,
when a statute or document enumerates by name several particular
things, and concludes with a general term of enlargement, this latter
term is to be construed as being ejusdem generis (i.e., of the same kind
or class) with the things specifically named, unless, of course, there is
something to show that a wider sense was intended.
(Citation and punctuation omitted.) Center for a Sustainable Coast v. Coastal
Marshlands Protection Comm., 284 Ga. 736, 737-738 (1) (670 SE2d 429) (2008); see
also Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 199-213 (2012). Stated somewhat differently:
Where a statute or other document enumerates several classes of persons
or things, and immediately following, and classed with such
enumeration, the clause embraces “other” persons or things, the word
“other” will generally be read as “other such like,” so that persons or
things therein comprised may be read as ejusdem generis with, and not
of a quality superior to or different from, those specifically enumerated.
This rule is well established in this [S]tate.
(Citation and punctuation omitted.) Standard Oil Co. v. Swanson, 121 Ga. 412, 415
(49 S.E. 262) (1904).
18
Applying these guides for viewing “the statutory text in the context in which
it appears,” City of College Park v. Martin, 304 Ga. 488, 489 (818 SE2d 620) (2018),
leads to the conclusion that the phrase “any other adverse employment action” in
OCGA § 45-1-4 (a) (5) should be interpreted to mean employment action analogous
to or of a similar kind or class as “discharge, suspension, or demotion.” See Standard
Oil Co., 121 Ga. at 415 (“words ‘other merchandise,’ in the act, must be construed to
mean other merchandise ejusdem generis with the articles expressly named”). See
also Cape Henry Towers v. Nat. Gypsum Co., 229 Va. 596, 603 (331 SE2d 476)
(1985) (Virginia Supreme Court refusing to consider statutory language out of
context and applying doctrines of ejusdem generis and noscitur a sociis to reject
argument that “or any other articles” should be given “limitless effect”) (punctuation
omitted); Dunham v. State, 140 Fla. 754, 757 (192 So. 324) (1939) (holding
“occupations specified are those which are governed by the law of bailments and, we
believe, that the broader term ‘any other person’ was meant to refer to one following
a like pursuit”); City of Mankato v. Barber Asphalt Paving Co., 142 F. 329, 345 (8th
Cir. 1905) (“[t]he general words, ‘or any other cause,’ by a familiar rule of
construction expressed by the maxim noscitur a sociis, do not enlarge the scope of the
particular words in the midst of which they appear”); United States v. Atchison, 142
19
F. 176, 190-191 (W.D. Mo. 1905) (stating “authorities are all agreed that the general
words ‘or any other interstate traffic,’ used in such connection, on the rule of noscitur
a sociis and ejusdem generis, are controlled by the antecedent specification, and are
limited to objects ‘of like kind with those specified’”).7
(e) Adverse Employment Action in Title VII Substantive Discrimination Cases.
Before applying this standard to the facts presently before us, an examination of
federal decisions interpreting the meaning of adverse employment action in
substantive discrimination cases may provide some guidance. Under that standard,
“an employee must show that [s]he suffered a serious and material change in the
7
Nothing cited in Judge Goss’s special concurrence mandates a different
conclusion. Judge Peterson’s statement in Franklin I, related only to application of
the statute of limitation to separate causes of action created by “any discrete adverse
employment action.” 337 Ga. App. at 297 (2). It offers no insight into the meaning
of the phrase “any other adverse employment action.”
Our opinion in Tift County School Dist. v. Martinez, 331 Ga. App. 423, 428 (1)
(771 SE2d 117) (2015), cited in Judge Goss’s special concurrence, is also inapposite.
In that case, we concluded that the phrase “[a] municipal corporation, a county, or any
other political subdivision of this State,” found in the second sentence of OCGA § 33-
24-51 (b), included school districts for purposes of the waiver of sovereign immunity.
Id. We did not hold that the phrase “or any other political subdivision” provided
“more inclusive language” than the other terms in the list in which it appeared.
Instead, we held that this language was different from and “more inclusive” than a
different waiver for “local government entities” contained in the first sentence of
OCGA § 33-24-51 (b). Id. As we were not construing the meaning of “any other
political subdivision of this State” in the context of the list in which it appeared, our
holding in that case has no bearing on the issue now before us.
20
terms, conditions, or privileges of h[er] employment.” (Citation and punctuation
omitted; emphasis supplied.) Walker v. Indian River Transp. Co., 741 Fed. Appx.
740, 749 (III) (B) (11th Cir. 2018). “Although an adverse employment action need not
be an ultimate employment decision, such as termination, failure to hire or demotion,
it must meet a ‘threshold level of substantiality.’ [Cit.]” Grimsley v. Marshalls of MA,
Inc., 284 Fed. Appx. 604, 608 (II) (A) (11th Cir. 2008). “The employee’s subjective
perception of the seriousness of the change is not controlling; rather this issue is
viewed objectively from the perspective of a reasonable person in the
circumstances.”8 Id. Examples of conduct not found to be adverse employment action
include: not allowing a retired police officer to keep his service gun;9 changing job
duties to include local driving;10 attendance and leave issues;11 a change in the
8
This standard differs from that applied in Title VII retaliation cases because
the materiality of the change does not turn on whether it would have dissuaded a
reasonable employee from making the statutorily protected disclosure.
9
Cobb v. City of Roswell, 533 Fed. Appx. 888, 896 (VI) (11th Cir. 2013).
10
McCone v. Pitney Bowes, 582 Fed. Appx. 798, 800 (III) (11th Cir. 2014).
11
Stubbs v. Compass Bank, No. 2:18-cv-00661-RDP, 2018 U. S. Dist. LEXIS
178888 at *7 (III) (A) (N.D. Ala. October 18, 2018).
21
exercise time slot for an employee of the armed service;12 and the denial of a request
for a transfer.13 “[A] change in an employee’s work assignments, if not accompanied
by a tangible harm or some unusual circumstance, is generally not sufficient to
constitute an adverse employment action.” Williams v. Great-West Healthcare, No.
1:015-CV-2675-RWS-GGB, 2007 U. S. Dist. LEXIS 102132 at *23 (D) (2) (N.D. Ga.
June 8, 2007) (finding no adverse employment action from assignment of more non-
medical cases to plaintiff than managers of a different race where plaintiff presented
no evidence of financial harm).
(f) Evidence of Adverse Employment Action in this Case. We now turn to
Franklin’s allegations of adverse employment action. To support her claim, in part,
she points to the County’s decision to remove her job duties of credentialing medical
providers and processing credit and debit card receipts and replace them with a duty
of processing insurance electronic fund transfers.14 It is undisputed that Franklin’s job
12
Redding v. Fanning, No. 5:14-CV-407 (MTT), 2016 U. S. Dist. LEXIS
159213 at *21 (IV) (B) (2) (M.D. Ga. November 17, 2016).
13
Hawkins v. BBVA Compass Bancshares, 613 Fed. Appx. 831, 836 (III) (A)
(11th Cir. 2015).
14
The question of adverse employment action must be considered separately
from the issue of retaliation. For example, even if an employee presents undisputed
direct evidence of discrimination, proof that the employee suffered adverse
22
title, salary, and benefits were not changed as a result of her work assignments, and
her characterization of her current job duties as “busy work” is the kind of subjective,
conclusory allegation that should not be considered when determining whether an
adverse employment action has occurred. See Valero v. San Francisco State Univ.,
No. 12-cv-04744-TEH, 2014 U. S. Dist. LEXIS 47018 at *8-9 (N.D. Cal. November
17, 2014) (refusing to consider plaintiff’s conclusory allegation “that her new job is
a ‘dead-end, busywork job’” when determining whether genuine issue of material fact
existed with regard to whether an adverse employment action had occurred). While
some of Franklin’s work duties may have changed,15 some remained the same,16 and
the additional work she was given required the same general skill set and aptitude.
employment action must still be shown. See Grimsley, 284 Fed. Appx. at 609 (II) (A).
Simply put, “not all conduct by an employer negatively affecting an employee
constitutes adverse employment action.” (Citation and punctuation omitted.) McCone,
582 Fed. Appx. at 800 (III).
15
Franklin’s credit card duties were replaced with insurance EFT transfers, and
she no longer checked the credentials of medical providers. The credentialing work
required her to collect data from any licensed medical provider that saw Fulton
County patients to submit to various care management organizations or insurers.
While Franklin characterized the credentialing and credit card work as her “core” job
duties, she provided no evidence about how often or how long it took her to perform
them on a daily or weekly basis.
16
Franklin continued to count and deposit money for the County’s treasury
department, as well as parking lot proceeds.
23
Additionally, Franklin has made no effort to show how her change in work
assignments has had any objectively negative effect on her future employment
opportunities. Based upon these undisputed facts and circumstances, Franklin’s work
assignment changes fail to amount to adverse employment action under OCGA § 45-
1-4 (a) (5) as a matter of law. See Martin v. Locke, 659 FSupp.2d 140, 148-149 (I)
(A) (D.C. Cir. 2009) (plaintiff’s complaint that “most of her responsibilities were
given to other employees, leaving her with busywork” failed to amount to adverse
employment action when she remained at same pay and grade level) (punctuation
omitted).17
2. Pretext for Denied Promotions. As we have already explained, we are
assuming, without deciding, that the two denied promotions were adverse
employment action. As Franklin does not assert that the trial court erred by
17
After considering the record regarding Franklin’s claims based upon training
requests, leave requests, and the last transfer request, we conclude that they did not
meet the standard required for adverse employment action under OCGA § 45-1-4 (a)
(5) as a matter of law and do not warrant a detailed discussion in this opinion.
Moreover, even if we were to consider all of Franklin’s claims collectively, her
contentions regarding training, leave requests, and change in job duties do not amount
to adverse employment action. See Hyde v. KB Home, 355 Fed. Appx. 266, 269 (II)
(A) (11th Cir. 2009). We cannot consider her claim regarding the denied transfer
collectively because she submitted no evidence of a specific transfer opportunity for
which she was denied.
24
concluding that the County articulated a legitimate, nondiscriminatory reason for the
employment decision, we now evaluate Franklin’s assertion on appeal that she has
shown pretext under the McDonnell Douglas test.
A plaintiff asserting a claim under the Georgia Whistleblower Act establishes
pretext
by a direct showing that a discriminatory reason more likely motivated
the defendant or by an indirect showing that the defendant’s explanation
is not credible. To avoid summary judgment, 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.
(Footnote omitted; emphasis supplied.) Harris, 345 Ga. App. at 378-379 (2) (b).
(a) Denial of Health Program Administrator Position. The record shows that
Franklin applied for this position on July 3, 2012. On August 8, 2012, a human
resources manager sent an email to Franklin stating that the personnel department had
forwarded her name because she met the qualifications for the position. On August
25
20, 2012, a three-person panel interviewed Franklin, as well as seven other candidates
for the position. In an affidavit, the Director of the Department of Health and
Wellness, a member of the three-person panel, averred that the sole reason Franklin
was not selected for the position was that she had received the lowest total interview
score of all of the interviewed candidates. She also stated that neither she nor any of
her subordinates retaliated against Franklin “for engaging in any form of protected
activity.” On August 28, 2012, the Director of the Department of Health and Wellness
sent an email to Franklin advising: “Even though your background and experience are
exceptional, another candidate has been selected for this position. I encourage you to
apply for future openings, and wish you much success in your career endeavors.”
In an attempt to meet her burden of showing pretext, Franklin asserts that the
Director’s affidavit “failed to state how the scores of the candidates were determined”
and that her “statement about Franklin’s scores are hearsay and inadmissible. OCGA
§§ 24-8-801, 24-9-901.” We disagree. The affidavit states that it is based upon
personal knowledge, and it is undisputed that the Director was a member of the three-
person panel that interviewed Franklin. The Director’s statement about the scores
26
does not meet the definition of hearsay in OCGA § 24-8-801 (c),18 and Franklin’s
citation to the portion of the Evidence Code regarding authentication to support her
claim is puzzling as it specifically endorses “[t]estimony of a witness with knowledge
that a matter is what it is claimed to be.” OCGA § 24-9-901 (b) (1). Based upon
Franklin’s failure to meet her burden to produce evidence of pretext, we affirm this
portion of the trial court’s grant of summary judgment to the County.
(b) Denial of Human Services Manager Position. On December 26, 2012,
Franklin applied for this position in the Department of Aging and Youth. The job
posting required that the candidate have a
Bachelor’s Degree in Social Work, Human Services, Vocational
Rehabilitation, Behavioral Science or Social Science, Business or Public
Administration, or a related field and six (6) years of progressively
responsible experience managing community or social service programs,
including three (3) years of program planning responsibility and three
(3) years of supervisory experience; or a year for interchange of
indicated education and experience equal to the minimum qualifications.
18
This Code section provides: “‘Hearsay’ means a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.”
27
On January 25, 2013, the Fulton County Recruiting Division notified Franklin as
follows: “We regret to inform you that after careful review of your application and/or
resume for the position of Human Services Program Manager, we have found that you
do not meet the minimum qualifications at this time.” The personnel manager who
made “recommendations to deny or advance applications for further consideration
beyond the Personnel Department” averred in her affidavit that “Franklin did not
possess the requisite number of years of community, social service, and planning
experience.”
In support of her claim that the County’s contention regarding her lack of
minimum job qualifications was pretextual, Franklin submitted an affidavit in which
she concluded that she “met the qualifications for this position” and attached the job
announcement and her application and resume as exhibits, but provided no
explanation of how she possessed the necessary qualifications. Based upon our
review of the job announcement and Franklin’s qualifications, we cannot say that she
met her burden to produce evidence showing that the stated reason she was not
28
considered for the job was false.19 We therefore affirm this portion of the trial court’s
grant of summary judgment to the County.
3. Based upon our holding in Divisions 1 and 2, we need not address Franklin’s
remaining enumerations of error in order to affirm the trial court’s order granting
summary judgment in favor of the County. We therefore decline to address her
remaining claims of error as they are moot.
Judgment affirmed. Dillard, C.J., Miller, P.J., McMillian, Rickman, Mercier,
Reese, Gobeil, Coomer, and Hodges, JJ., concur. Doyle, P.J., concurs fully in
Divisions 2 and 3, and in judgment only in Division 1. Barnes, P.J., McFadden, P.J.,
and Goss, J., concur in judgment only. Markle, J., disqualified.
19
The conclusory statement in her affidavit, standing alone, is insufficient to
create a genuine issue of material fact on the issue of pretext. See Mullis v. Welch,
346 Ga. App. 795, 798 (2) (815 SE2d 282) (2018) (“Conclusory statements in
affidavits unsupported by factual evidence are insufficient to avoid summary
judgment.”) (punctuation omitted).
29
A18A1724. FRANKLIN v. PITTS.
DOYLE, Presiding Judge, concurring specially.
I agree that the trial court did not err when it granted summary judgment to the
defendant on the plaintiff’s retaliation claims under the Georgia Whistleblower Act
(“GWA”). I do not agree, however, that we need to overrule our decision in Freeman
v. Smith,1 nor do I agree that the standard the majority proposes to adopt is
appropriate based on the plain language of our statute. Therefore, I concur only in the
judgment in Division 1. I concur fully in Divisions 2 and 3.
1
324 Ga. App. 426 (750 SE2d 739) (2013).
The GWA precludes a public employer from retaliating against a public
employee for disclosing “a violation of or noncompliance with[,inter alia,] a law,” or,
to paraphrase, for “refusing to participate” in an act, policy, or practice of the
employer that the employee reasonably believes to be a violation of the law.2 Under
OCGA § 45-1-4,
“[r]etaliate” or “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 for disclosing a
violation of or noncompliance with a law, rule, or regulation to either a
supervisor or government agency.
In Freeman, this Court applied (without formally adopting) the standard used
by federal courts when attempting to discern whether the alleged act of retaliation
constituted “adverse employment action” for purposes of a federal retaliation claim
— whether “a reasonable employee would have found the challenged action
materially adverse, meaning that it might well have dissuaded a reasonable employee
from making the” disclosure.3 The majority instead argues that this Court should
2
OCGA § 45-1-4 (d) (2) and (3).
3
Freeman, 324 Ga. App. at 432 (1).
2
apply the “adverse employment action” standard applied in substantive Title VII
claims — whether the employee suffered a “serious and material change in the terms,
conditions, or privileges of h[er] employment.”4
The majority makes too much of the distinction between the standard applied
to “adverse employment actions” under substantive Title VII claims and the standard
applied to “adverse employment actions” under federal retaliation claims. I do not
believe the distinction is as substantial as the majority urges. Both standards are
objective, reasonable person standards, and both require that the employer’s alleged
retaliation be material; in other words, the standards largely overlap and result in the
same outcome for both substantive and retaliation claims.5 Our retaliation statute does
not track perfectly either the language of Title VII’s substantive claims or the
language of Title VII’s retaliation claims. And implicit in Freeman’s application of
the Title VII retaliation “adverse employment action” standard is the plain language
4
(Punctuation omitted.) Crawford v. Carroll, 529 F3d 961, 974 n.14 (11th Cir.
2008).
5
See Ambus v. AutoZoners, LLC, 71 FSupp.3d 1280, 1302 (V) (3) (Ala. M.D.
2014). See also Walker v. Indian River Transp. Co., No. 17-10501 (B) (11th Cir. July
27, 2018) (reviewing discrimination and retaliation claims and concluding that only
one claim constituted an adverse employment action and met both the retaliation and
discrimination standards).
3
of our statute, which limits the universe of conduct to which an employer’s alleged
retaliatory action must apply.
I believe the cumulative application of the federal retaliation “adverse
employment action” standard within the lens of the plain language of the GWA
provides a workable standard. In any event, the plaintiff’s claims fail under the
standards suggested by both the majority and Judge Goss’s special concurrence.
4
A18A1724. FRANKLIN v. PITTS.
GOSS, Judge, concurring specially.
I agree that the trial court did not err when it granted summary judgment in
favor of Commissioner Pitts on Dedrain Franklin’s retaliation claim under the
Georgia Whistleblower Act. I do not agree, however, that we need to overrule our
decision in Freeman v. Smith, 324 Ga. App. 426 (750 SE2d 739) (2013), as we affirm
the trial court’s correct and well-written order.
The relevant provision of the Whistleblower Act, OCGA § 45-1-4 (a) (5),
defines prohibited retaliation as including “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 law, rule, or regulation to a supervisor or
agency. Applying a rule of interpretation which construes a word or phrase in
accordance with its accompanying terms, the majority interprets the statutory phrase
“any other adverse employment action” as “employment analogous to or of a similar
kind or class as discharge, suspension, or demotion.” (Op. p. 17.) We should first
attempt to read the statute in accordance with its plain and ordinary meaning,
however. See Deal v. Coleman, 294 Ga. 170, 173 (751 SE2d 337) (2013) (“if a
statutory text is clear and unambiguous, we attribute to the statute its plain meaning,
and our search for statutory meaning is at an end.”) (punctuation omitted).
Nothing in the text of OCGA § 45-1-5 (a) (5) suggests that an employer’s “any
other adverse employment action” against the whistleblower must be as serious as a
discharge, suspension, or demotion. If the General Assembly had so intended, it could
easily have done so by using terms such as “any similarly adverse employment
action” or “any other adverse employment action with a similar level of seriousness
or gravity.” Instead, the legislature used the broad phrase “any other adverse
employment action,” which I read as potentially including adverse actions not
necessarily as serious as discharge, suspension, or demotion. See Franklin v. Eaves,
2
337 Ga. App. 292, 297 (787 SE2d 265) (2016) (Peterson, J.) (the Act’s definition of
“retaliation” “indicat[es] that any discrete adverse employment action can create a
cause of action”) (emphasis supplied); Tift County School Dist. v. Martinez, 331 Ga.
App. 423, 428 (1) (771 SE2d 117) (2015) (courts were required to read the statutory
phrase “any other political subdivision” as “more inclusive” than the more narrowly
defined category of “local government entities,” such that a school district had
waived its sovereign immunity to the extent it purchased insurance).
I also do not agree that we must overrule our decision in Freeman. We began
our analysis in that case with the observation that “not all” courts facing the question
have applied the so-called McDonnell-Douglas burden-shifting framework1 to
Georgia whistleblower retaliation claims. 324 Ga. App. at 429 (1). We specifically
noted, however, that we were “not required to decide whether the McDonnell-
Douglas framework should be adopted in whistleblower cases because, under any
standard, [the Freeman plaintiff] ha[d] not pointed to record evidence that any
1
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (II) (93 SCt
1817, 36 LE2d 668) (1973); Tuohy v. City of Atlanta, 331 Ga. App. 846, 848-850 (1)
(771 SE2d 501) (2015). Our decision in Tuohy cited Freeman without overruling it,
perhaps because Freeman specifically avoided the framework question. 331 Ga. App.
at 849 (1).
3
materially adverse employment action was a matter of retaliation for her whistle-
blowing activity.” Id. at 430 (1) (emphasis supplied).
We also cited law including Burlington Northern & Santa Fe R. Co. v. White,
548 U.S. 53 (126 SCt 2405, 165 LE2d 345) (2006), that “[t]he actionable employer
conduct must be ‘significant’ rather than ‘trivial.’” Freeman, 324 Ga. App. at 432 (1);
Grimsley v. Marshalls of MA, Inc., 284 Fed. Appx. 604, 608 (II) (A) (11th Cir. 2008)
(“Although an adverse employment action need not be an ultimate employment
decision, such as termination, failure to hire, or demotion, it must meet a threshold
level of substantiality”) (citations and punctuation omitted). In short, an employee’s
allegations of an “adverse employment action” under the Whistleblower Act are
properly evaluated for their objective materiality – that is, whether “‘a reasonable
employee would have found the challenged action materially adverse, meaning that
it might well have dissuaded a reasonable employee from making the statutorily
protected disclosure.’” Freeman, 324 Ga. App. at 432 (1), quoting Cobb v. City of
Roswell, 533 Fed. Appx. 888, 896 (11th Cir. 2013); see also Burlington Northern &
Santa Fe R. Co., 548 U.S. at 67-68 (“a plaintiff must show that a reasonable
employee would have found the challenged action materially adverse, which in this
4
context means it well might have dissuaded a reasonable worker from making or
supporting a charge” of retaliation) (citation and punctuation omitted).
Because Freeman correctly stated existing law on the proper standard to be
applied to a plaintiff’s retaliation claims under the Georgia Whistleblower Act, I see
no need to overrule that decision. I therefore concur only in the judgment. I am
authorized to state that Presiding Judge Barnes and Presiding Judge McFadden join
in this special concurrence.
5