BARNES, P. J., MCMILLIAN and MERCIER, JJ.
BARNES, PRESIDING JUDGE.
Murray-Obertein appeals from the order of the trial court
granting the Georgia Government Transparency and Campaign
Finance Commission's ("the Commission") motion
for summary judgment. Murray-Obertein contends that the trial
court erred in finding that her retaliation claim under the
Georgia Whistleblower Act, OCGA § 45-1-4 et seq (the
"GWA"), was precluded because she was not an
"employee" at the time of the Commission's
purported retaliatory acts. Upon our review, we affirm.
On appeal from the grant of summary judgment, this court
applies a de novo standard of review. 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. We must view the evidence, and all reasonable inferences
drawn therefrom, in the light most favorable to the
(Citations omitted.) Tuohy v. City of Atlanta, 331
Ga.App. 846 (771 S.E.2d 501) (2015).
trial court's grant of summary judgment was limited to
whether a "public employee" as defined by the GWA
includes former employees, and in concluding that it did not,
the trial court did not address whether, under the GWA,
Murray-Obertein was engaged in protected acts or whether the
Commission's acts were retaliation. Thus, the underlying
claims are not at issue in this appeal.
that being so, the facts pertinent to this appeal demonstrate
that Murray-Obertein was employed by the Commission from
December 2011 until January 29, 2014. On October 28, 2014,
she filed the underlying complaint in which she alleged that
the Commission had retaliated against her because of the
following: on August 1, 2013, she gave a deposition in a case
brought against the Commission regarding violations of OCGA
§ 45-10-3 related to a campaign finance ethics
investigation; on February 17, 2014, she testified as a
witness at the ensuing trial arising from that complaint; and
on June 11, 2014, she had resolved by settlement agreement
her own claims against the Commission. According to the
complaint, the alleged retaliation was derogatory statements
the Commission's Executive Secretary made during
interviews with the media, all of which occurred after
Murray-Obertein was no longer employed with the Commission.
Murray-Obertein did not allege any adverse employment
actions. In granting summary judgment to the Commission, the
trial court found that the definition of "public
employee" for purposes of bringing a retaliation claim
pursuant to the GWA, means a current employee, rather than a
former employee. Thus, it found that because Murray-Obertein
was not employed by the Commission at the time of the
purportedly retaliatory acts, her claims pursuant to the GWA
failed. We agree.
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) by a
public employer as a result of the employee's disclosure
of, or refusal to participate in, violation of the law."
West v. City of Albany, 300 Ga. 743 (797 S.E.2d 809)
(2017. Under the GWA,
[n]o public employer shall retaliate 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, unless the disclosure was made with
knowledge that the disclosure was false or with reckless
disregard for its truth or falsity.
OCGA § 45-1-4 (d) (2). "Public employee" is
any person who is employed by the executive,
judicial, or legislative branch of the state or by any other
department, board, bureau, commission, authority, or other
agency of the state. This term also includes all employees,
officials, and administrators of any agency covered by the
rules of the State Personnel Board and any local or regional
governmental entity that receives any funds from the State of
Georgia or any state agency.
OCGA § 45-1-4 (a) (3). (Emphasis supplied.)
moving for summary judgment, the Commission asserted that
even though the WBA waives sovereign immunity, see Colon
v. Fulton County, 294 Ga. 93, 95 (1) (751 S.E.2d 307)
(2013) ("OCGA § 45-1-4 sets forth a specific waiver
of the County's sovereign immunity and the extent of such
waiver"), it must be narrowly construed, and under such
construction, Murray-Obertein is not a "public
employee" as defined by the statute. On appeal,
Murray-Obertein contends that the trial court's
interpretation of the GWA was overly restrictive. According
to Murray-Obertein, the GWA does not require that a person
who was formerly a public employee at the time of the
protected activity remain employed at the time of the
retaliation. Moreover, she asserts, permitting public
employers to engage in post-employment retaliation,
"defeats the remedial nature of the statute and denies a
whistleblower redress." Murray-Obertein argues that this
Court should look to the United States Supreme Court's
decision in Robinson v. Shell Oil Co., 519 U.S. 337
(117 S.Ct. 843, 136 L.Ed.2d 808) (1997), in which the Court
held that retaliation claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.
("Title VII"), applied to former employees.
Robinson, an former employee filed suit under §
704 (a) of Title VII, which makes it unlawful "for an
employer to discriminate against any of his employees or
applicants for employment" who have availed themselves
of Title VII's protections. Id. at 339-340.
After, "first . . . interpreting [the] statute . . . to
determine whether the language at issue has a plain and
unambiguous meaning, " the Supreme Court found the term
"employee" ambiguous within the context of §
704 (a), because, among other things, and of significance in
this case, "there is no temporal qualifier in [the
statute] such as would make plain that § 704(a) protects
only persons still employed at the time of the
retaliation." Id. at 340-341 (II).
"Employee" under Title VII is defined as "an
individual employed by an employer." 42 USCS 2000e(f)).
Compare Walters v. Metropolitan Ed. Enterprises,
Inc., 519 U.S. 202, 207-208 (117 S.Ct.. 660, 136 L.Ed.2d
644) (1997) (the term "employees" in § 701(b),
42 USCS ...