Whistleblower. Fulton Superior Court. Before Judge Schwall.
Gary R. Kessler, for appellant.
Robert N. Godfrey, Kristi D. A. Matthews, Y. Soo Jo, for appellees.
Edward Tuohy filed a complaint against the City of Atlanta, Mayor Kasim Reed, and the Atlanta City Council (collectively " the City" ), alleging that he was terminated in retaliation in violation of the Georgia Whistleblower Act, OCGA § 45-1-4. The trial court granted summary judgment in favor of the City, and Tuohy now appeals. For the following reasons, we affirm.
On appeal from the grant of summary judgment, this court applies a de novo standard of review. Higginbotham v. Knight, 312 Ga.App. 525, 526 (719 S.E.2d 1) (2011). 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. OCGA § 9-11-56 (c). We must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459 (1) (486 S.E.2d 684) (1997).
So viewed, the evidence showed that Tuohy was hired in March 2011 as treasurer for the City working for the chief financial officer. In July 2011, Mazyck Advisors submitted to the City invoices totaling $51,882.28 for advisory services. On August 8, 2011, the chief financial officer for the City, Joya DeFoor, sent Tuohy an e-mail instructing him to pay the entire invoice " from the remaining cost of issuance funds. Your staff should be able to determine how much in COI is remaining from the bank statement without contacting Watershed." When Tuohy determined that there were no Watershed funds
to pay the invoice, he e-mailed DeFoor and asked her to advise him which source he should pay them from. Tuohy stated that he " felt the fact that the wire was not in its entirety a Watershed wire, I knew that the invoices, from looking at the invoices, supporting documentation of the wire that it was for more than just Watershed." Tuohy stated [331 Ga.App. 847] further that he knew that three other City departments benefitted from the contractor's work and that the proper procedure would be to only charge that portion to Watershed that benefitted Watershed.
On August 25, 2011, Tuohy wired $51,882.28 to Mazyck Advisors but did not charge the amount to the Department of Watershed. He asserted that in September 2011, he " received a second e-mail from Ms. DeFoor instructing him to charge the entire invoice to the Department of Watershed and to not report this to the Financial Officer of that Department."  Tuohy discussed his concerns with John Gaffney, the city controller, who testified that Tuohy believed that how he was instructed to charge the invoice " may be illegal." Gaffney considered the request to charge an invoice to a department without that department's knowledge to be unethical, but expressed no opinion regarding whether it was illegal, and advised Tuohy to take this concern to the ethics board or consult with the law department.
In October 2011, Tuohy still had not charged the invoices to the Department of Watershed and contacted his direct supervisor, Stefan Jaskulak, deputy CFO for the City, to inform him that he objected to DeFoor's instructions and would not charge the wire to Watershed as directed. A week later, on October 12, 2011, the City terminated Tuohy's employment. The next day, Tuohy met with City officials and was told that he had been fired for " performance issues."
In March 2012, Tuohy filed a complaint under the Georgia Whistleblower Act asserting that he was terminated in retaliation " because he objected to performing an improper illegal financial transaction." He maintained that he believed DeFoor's instructions to charge the entire invoice to the Department of Watershed, particularly without notifying that department's CFO, was improper and " probably illegal," and that he confirmed that it was in violation of City policies and procedures. In April 2012, the City's Department of Human Resources issued a report of its own investigation of the matter, and concluded that there was insufficient evidence to show that Tuohy spoke with Jaskulak or DeFoor regarding what he believed to be an illegal or unethical directive, and insufficient evidence that his termination was based on his alleged whistleblowing activity.
The City moved for summary judgment on the ground that Tuohy failed to establish a prima facie case for retaliation. Specifically, it asserted that Tuohy did not question the propriety of DeFoor's [331 Ga.App. 848] instructions concerning the invoice, and that the manner of payment of the invoices was not in violation of the City Code, nor in violation of Governmental Accounting Standards Board Standards or Generally Accepted Accounting Principles. The City also contended that Tuohy was terminated for poor work performance, noting that he erroneously approved duplicate payments of " approximately four or five million ...