Sovereign immunity. Fulton State Court. Before Judge Mather.
Samuel S. Olens, Attorney General, W. Wright Banks, Jr., Deputy Attorney General, Julie A. Jacobs, Senior Assistant Attorney General, Elizabeth A. Harris, Assistant Attorney General, for appellant.
Dorminey & Cox, A. Blair Dorminey, for appellee.
Peter Winter brought suit against the Board of Regents for breach of an employment contract. The Board appeals the trial court's denial of its motion for summary judgment. As a part of its ruling, the trial court conclusively denied the Board's claim of sovereign immunity, thereby authorizing this direct appeal under the collateral order doctrine. See Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga.App. 505, 507 (1) (672 S.E.2d 471) (2009). For the reasons that follow, we reverse and remand for entry of summary judgment in favor of the Board.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 S.E.2d 564) (2003).
Construed in favor of Winter, the record shows that in May 2005, Winter, a British citizen and postdoctoral research scholar who was finishing a research fellowship at the
University of Kansas (" UK" ), contacted and began negotiations about postdoctoral employment with Dr. Rene Alvarez in the Department of Infectious Diseases (" DID" ) at the College of Veterinary Medicine at the University of Georgia (" UGA" ). Meanwhile, because Winter's " J-1" educational exchange visa that enabled him to work at UK was about to expire, Winter applied to the United States Citizenship and Immigration Services (" USCIS" ) for a change of status (" COS" ) to a " B" visitor/tourism visa, which does not allow employment, to cover the time until he could obtain another position. In a series of e-mails, Winter and Alvarez then negotiated the terms of his possible employment at UGA, including his salary and start date. In three successive e-mails on June 2, Alvarez stated that if Winter was still interested, he could draw up a formal offer and begin the necessary paperwork; Winter responded that he " would be interested ... and ... look[ed] forward to receiving the formal offer" ; and Alvarez replied that a formal offer would be forthcoming and " I am glad you have chosen to join our labs." [331 Ga.App. 529] Winter asserts in his brief that by this e-mail, Alvarez acknowledged Winter's acceptance of the offer of employment.
On June 6, Alvarez sent to Winter a written offer of a postdoctoral fellowship in the DID. The letter outlined the job duties and provided a term of one year beginning July 1 with a salary of $38,712, " pending approval by [UGA]." On the same day, Alvarez sent a revised letter identical to the first but containing a start date of August 1 and omitting the condition that the offer was subject to UGA approval. Although Winter may have indicated that he was British, neither letter referred to Winter's immigration status. Winter did not thereafter accept the formal offer in writing. At the time, the Board of Regents had a policy of not providing postdoctoral fellows a written employment agreement.
Through the remainder of June, Winter and UGA corresponded about the paperwork that UGA required in connection with his employment and about how UGA would assist with getting Winter the correct visa. Internal UGA documents show that on June 23, Alvarez wrote to the DID chair, seeking his approval of hiring Winter and stating that " [w]e are trying to get Dr. Peter Winter started in our lab as a postdoctoral fellow."
Meanwhile, on June 28, in connection with Winter's COS, USCIS sent Winter a " request for evidence" (" RFE" ) and stated that Winter's COS was being held pending his response, which was not due until September 20. As evidenced by a subsequent series of writings, Winter and DID began to discuss the steps necessary to change Winter's immigration status to " H-1B" for temporary employees, so that he could be employed at UGA. In early July, DID staff sought assistance from UGA's International Student, Scholar and Immigrations Services Office (" ISSIS" ). ISSIS initially decided to wait for USCIS to approve Winter's COS application before submitting an H-visa application; ISSIS also learned that Winter had not responded to the RFE. By now it was late July, and Winter relocated to Athens on July 24.
At the beginning of August, Winter met with ISSIS about his H-visa application and was told that UGA could not submit an H-visa application until Winter responded to the RFE. Winter therefore responded to the RFE on August 2 and provided a copy of his response to UGA. ISSIS then told Winter that UGA could not submit the H-visa application until Winter's COS application was approved and he was [331 Ga.App. 530] given a B-visa. After reviewing Winter's response to the RFE, ISSIS determined that UGA could not proceed with ...