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Shelnutt v. Mayor & Aldermen of City of Savannah

Court of Appeals of Georgia

June 18, 2015

SHELNUTT et al.
v.
THE MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH et al

Reconsideration denied July 28, 2015 -- Cert. applied for.

Page 651

Firefighters; salary. Chatham Superior Court. Before Judge Bass.

Karsman, McKenzie & Hart, Jeremy S. McKenzie, for appellants.

W. Brooks Stillwell III; Hunter, Maclean, Exley & Dunn, Shawn A. Kachmar, for appellees.

MCMILLIAN, Judge. Barnes, P. J., and Ray, J., concur.

OPINION

Page 652

McMillian, Judge.

Christopher Shelnutt and 49 other firefighters (the " Firefighters" ) from the City of Savannah appeal the trial court's grant of a motion to dismiss and motion for judgment on the pleadings filed by the Mayor and Aldermen of the City of Savannah (the " City" ) and Stephanie Cutter, the Savannah city manager, as to their claims for breach of contract.[1] The Firefighters asserted in their " First Amended and Recast Complaint" that the City's written " Pay Policy" created a contract between the City and the Firefighters and that the City breached that contract by paying them less than they were owed under the terms of the Pay Policy.

In considering the trial court's decision on a motion to dismiss and/or a motion for judgment on the pleadings, we apply a de novo review and thus " owe no deference to the decision of the court below." Pryce v. Rhodes, 316 Ga.App. 523, 523 (729 S.E.2d 641) (2012) (motion for judgment on pleadings). See also Liberty County School Dist. v. Halliburton, 328 Ga.App. 422, 423 (762 S.E.2d 138) (2014). Moreover, we must consider all well-pled material allegations on the Firefighters' complaint as true, with all doubts resolved in their favor. Ewing v. City of Atlanta, 281 Ga. 652, 653 (2) (642 S.E.2d 100) (2007) (motion to dismiss); Early v. MiMedx Group, Inc., 330 Ga.App. 652, 654 (768 S.E.2d 823) (2015) (motion for judgment on the pleadings). " We may also consider any exhibits attached to and incorporated into the complaint and the answer, also construing them in the appellant's favor." Stafford v. Gareleck, 330 Ga.App. 757, 758 (769 S.E.2d 169) (2015) (motion to dismiss). See also Early, 330 Ga.App. at 654 (motion for judgment on the pleadings). Nevertheless, a court should not grant a motion to dismiss unless " the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof[.]" (Citation omitted.) Austin v. Clark, 294 Ga. 773, 774-775 (755 S.E.2d 796) (2014). And " [a] motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment." (Citation and punctuation omitted.) Sherman v. Fulton County Board of Assessors, 288 Ga. 88, 90 (701 S.E.2d 472) (2010).

[333 Ga.App. 447] The complaint alleges that the Firefighters are all supervisors with the City's Bureau of Fire and Emergency Services, some of whom are classified as " exempt" for pay purposes and some of whom are classified as " non-exempt." [2] The City's Pay Policy includes provisions outlining changes in compensation for employees when promoted to a higher position, and those provisions have undergone a number of revisions since 1998.[3]

Page 653

From 1998 to November 2009, the Pay Policy provided, in pertinent part, that " [a]n employee promoted to a higher classification shall receive an increase of five percent above his/her current pay," and " [w]hen the present rate of the promoted employee is five percent or more below the minimum of the new pay grade, he/she will receive the minimum of the new pay grade." And during the same time period, the Pay Policy also provided that an individual promoted to an " exempt" supervisory position " shall receive an increase of 7.5% above his/her current pay," with the qualification that if " the present rate of the promoted employee is 7.5% or more below the minimum of the new pay grade, he/she will receive the minimum of the new pay grade." As of November 2009, the percentage pay increase for employees " promoted to a higher classification" was raised to ten percent " up to the maximum of the new pay range," and the language providing for a 7.5% pay increase for " exempt" supervisory positions was deleted.

Additionally, as of July 2005, the Pay Policy was amended to include a provision that mandated a one-time promotional pay increase for an employee promoted to a supervisory position, whether exempt or nonexempt, to " a minimum of 5% above the highest paid employee to be supervised at the time of the promotion." This language was removed from the Pay Policy in the November ...


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