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West v. City of Albany

Supreme Court of Georgia

March 6, 2017

WEST
v.
CITY OF ALBANY et al.

          Benham, Justice.

         Serless West ("West"), a former employee of the City of Albany ("City"), filed a complaint in federal court against the City and two individuals setting forth, among other things, a claim under the Georgia Whistleblower Act ("GWA"), OCGA § 45-1-4. With respect to West's claims under the GWA, she seeks economic and non-economic damages resulting from alleged retaliation for disclosing what she deems to be certain financial irregularities in the City's utility department. Specifically, West seeks lost wages, ; loss of various employment benefits; damages attributable to reputational injury, emotional distress, humiliation, and embarrassment; and attorney fees and costs of litigation as a result of losing her job. The City filed a motion for judgment on the pleadings with regard to the whistleblower claim, asserting it fails as a matter of law because West did not provide ante litem notice prior to filing the complaint. The United States District Court for the Middle District of Georgia, in an order finding no controlling precedent from this Court that addresses the legal issue raised by the City, certified the following question to this Court: "Is a plaintiff required to provide a municipal corporation with ante litem notice pursuant to OCGA § 36-33-5 in order to pursue a claim against it for money damages under the [GWA]?" As more fully developed in the discussion below, we answer this question in the negative.[1]

         The GWA creates a cause of action for retaliatory discharge, suspension, demotion, or other adverse employment action taken against a public employee (as defined by the Act)[2] by a public employer as a result of the employee's disclosure of, or refusal to participate in, violation of the law.[3] A "public employer" includes not only branches and divisions of state government but also "any local or regional governmental entity that receives any funds from the State of Georgia or any state agency." This includes municipalities such as the City of Albany. The only time limitation set forth in the GWA is that a civil action for retaliation in violation of the code section may be brought "within one year after discovering the retaliation or within three years after the retaliation, whichever is earlier."[4] No conditions precedent, such as pre-suit notice to the employer, are set forth in the GWA. The City, however, asserts that West's retaliation claim is barred because it is subject to the municipal ante litem notice statute, OCGA § 36-33-5, and that West failed to give timely written notice to the City pursuant to that statute.

         The relevant subsections of the municipal ante litem notice statute read as follows:

(a) No person, firm, or corporation having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in [subsection (b) of] this Code section.
(b) Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.

OCGA § 36-33-5 (a) and (b). West's complaint seeks money damages among other remedies, and so the City argues West was required to provide written notice of her claim within six months of the alleged retaliation, which she failed to do. But courts do not construe one subsection of a statute in isolation from another. Instead, this Court has set out certain principles of statutory construction to guide a court's consideration of the scope and meaning of a statute:

First, courts should construe a statute to give sensible and intelligent effect to all provisions and should refrain, whenever possible, from construing the statute in a way that renders any part of it meaningless. Second, a court's duty is to reconcile, if possible, any potential conflicts between different sections of the same statute, so as to make them consistent and harmonious.
Third, in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.

(Citations and punctuation omitted.) Footstar, Inc. v. Liberty Mutual Ins. Co., 281 Ga. 448, 450 (637 S.E.2d 692) (2006). We also presume that when enacting a statute "'the General Assembly meant what it said and said what it meant.'" (Citation omitted.) Federal Deposit Ins. Corp. v. Loudermilk, 295 Ga. 579, 588 (2) (761 S.E.2d 332) (2014). We do not limit our consideration to the words of one subsection of a statute alone, but consider a particular provision in the context of the statute as a whole as well as the context of other relevant law, "constitutional, statutory, and common law alike . . . ." Id. See also Mooney v. Webster, __ Ga., __ (794 S.E.2d 31) (2016). Additionally, because the ante litem notice provision of OCGA § 36-33-5 is in derogation of common law, which did not require pre-suit notice, it must be strictly construed and not extended beyond its plain and explicit terms. See Neely v. City of Riverdale, 298 Ga.App. 884, 885 (1) (681 S.E.2d 677) (2009); see generally Holland v. Caviness, 292 Ga. 332, 337 (737 S.E.2d 669) (2013).[5]

          Applying those rules to this case we should, if possible, neither read words into subsection (b) of the municipal ante litem notice statute nor omit them. The written notice required by subsection (b) must state "the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury." (Emphasis supplied.) The City focuses solely on the language of subsection (a) and argues that since West's claim is one for money damages, on account of injuries to her person or property, the ante litem notice requirement applies to her claim. The City argues that the language of subsection (b) simply defines the scope and detail required for the written notice.[6] But this assertion would require us to ignore the plain language of subsection (b) that requires a claimant to state "the negligence which caused the injury." It is obvious from this language that the municipal ante litem statute contemplates an injury sustained as a result of a negligent act or omission. The injury contemplated by the GWA, however, involves an act of retaliation which, by definition, is an intentional act and not a negligent one. As used in the GWA,

'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 of 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). If, as the City argues, the reference to "negligence" in OCGA § 36-33-5 (b) does not limit the type of injury referenced in subsection (a) of that code section, such a construction would require this Court to expand the plain language of subsection (b) to read: "and the negligence which caused the injury, if any, " or "and, with respect to injuries caused by negligence, the negligence which caused the injury." The General Assembly did not draft the language of the statute in this manner, and we will not construe the statute as if it did. See Pandora Franchising, LLC v. Kingdom Retail Group, LLLP, 299 Ga. 723, 789 (1) (a) (791 S.E.2d 786) (2016). In City of Statesboro v. Dabbs, [7] this Court held the plain language of the municipal ante litem notice statute demonstrates it applies to tort claims involving personal injury or property damage, and did not apply to a claim for violation of the Open Meetings Act.

         Here, we state further that the statute's plain language demonstrates it applies only to damages caused by negligence, not intentional acts. The City argues that such an interpretation is inconsistent with this Court's holding in City of Statesboro v. Dabbs, id., in which we stated it is clear from the plain text of the municipal ante litem notice statute that it "applies to tort claims regarding personal injury or property damage." But in the Dabbs case, we were drawing a distinction between the types of claims covered by the statute according to its plain language and a claim for violation of the Open Meetings Act. We were not asked to consider whether the statute applied only to claims for negligence.[8] Additionally, a comparison of the municipal ante litem notice statute with the pre-suit notice statute applicable to claims against the state reveals a significant characteristic of those statutes. The municipal ante litem notice statute and the state ante litem notice statute both are limited to certain claims. The statute applicable to claims against municipalities requires the claimant to state "the negligence which caused the injury." OCGA § 36-33-5. While the ante litem notice statute applicable to claims against the state contains no reference to "negligence, " it applies instead to "tort" claims. See OCGA § 50-21-26 (a). The claimant is required to state, among other things, "[t]he acts or omissions ...


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