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Rauback v. City of Savannah

United States District Court, S.D. Georgia, Savannah Division

January 4, 2019

JOHN RAUBACK, Plaintiff,
v.
CITY OF SAVANNAH, SAVANNAH AIRPORT COMMISSION, and GREG KELLY, in his individual and official capacities, Defendants.

          REPORT AND RECOMMENDATION

         Before the Court is Geoffrey Mclsaac's Motion to Intervene, doc. 17, and Plaintiff John Rauback's Motion for Leave to File Amended Complaint, doc. 18. For the following reasons, Mclsaac's Motion to Intervene should be DENIED, and Plaintiffs Motion for Leave to File Amended Complaint should be DENIED IN PART AND DEFFERED IN PART.[1]

         BACKGROUND

         In 2008, the Savannah Airport Commission ("SAC") employed Rauback as Director of Administration and Finance and, later, as Assistant Executive Director. Doc. 18-1 at 1-2. He reported to Defendant Kelly. Id. at 8. In 2015 and 2016, Plaintiff reported certain allegedly unlawful activities, but had to escalate those reports when Kelly ignored them. Id. at 8-9, 11. Plaintiff claims that Defendant Kelly retaliated against him as a result. Id. at 10-11.

         Separately from Plaintiffs employment woes, Geoffrey Mclsaac- Airport Security Manager-also began to experience harassment from his supervisor-Fred McCosby. Id. at 18. Mclsaac is an armed forces veteran and suffers from PTSD and believes the harassment was caused by his veteran status. Id. After an unsuccessful attempt at resolution, Mclsaac complained to Plaintiff and the SAC Human Resources Department that McCosby was harassing and discriminating against him because he was a disabled veteran. Id. at 11-19. Plaintiff-who reviewed the report of discrimination-verbally counseled McCosby for his behavior on March 21, 2017. Id. at 12. The next day, McCosby filed a grievance against Plaintiff with Defendant Kelly. Id. However, McCosby later rescinded the grievance. Id. On April 13, 2017, Plaintiff told Defendant Kelly that he was concerned about possible legal exposure stemming from McCosby's behavior towards Mclsaac, expressed concerns with the way Defendant Kelly was handling the issue, and requested copies of any grievances which had been filed against him. Id. at 13-15.

         On May 2, 2017, Defendant Kelly placed Plaintiff on involuntary paid administrative leave. Id. at 15. On May 25, 2017, Defendant Kelly attempted to terminate Plaintiffs employment, but later continued the leave pending an investigation. Id. at 16. Defendant SAC terminated Plaintiffs employment in January of 2018. Id.

         While Plaintiff was on leave, Mclsaac filed an internal grievance against McCosby. Id. at 23. When McCosby's derogatory behavior continued, Mclsaac informed the Human Resources Department that he would be filing a charge of discrimination with the EEOC. Id. at 25. Mclsaac subsequently "wrote up" McCosby five times in one day for filing his complaint. Id. In December of 2017, McCosby denied Mclsaac a performance-base pay increase and placed him on probation. Id. Mclsaac was subsequently terminated in February of 2018. Id. Mclsaac and Plaintiff were not fired by the same person. Doc. 19 at 2.

         On May 1, 2018, Plaintiff filed this case in the Superior Court of Chatham County against the City, the SAC, and Greg Kelly. Doc. 1 at 1. Plaintiff brings claims under the First Amendment, the Georgia Whistleblower Act, and the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). Id. After removal to this Court, Mclsaac filed a Motion to Intervene, doc. 17, and Plaintiff filed a Motion for Leave to File Amended Complaint, doc. 18. Mclsaac seeks to join Plaintiffs action and bring five additional claims for First Amendment retaliation, retaliation in violation of the Georgia Whistleblower Act, discrimination in violation of the USERRA, retaliation in violation of the USERRA, and hostile work environment in violation of the USERRA. Doc. 18-1. Plaintiff seeks to add Mclsaac as a plaintiff and McCosby as a defendant. Doc. 18.

         ANALYSIS

         Mclsaac can intervene or join in one of two ways: of right or with the Court's permission. After review of the record in this case, Mclsaac does not meet the requirements for either.

         I. Intervention or Joinder of Right

         Federal Rule of Civil Procedure 24 establishes when a person may intervene as of right. It states that

(a) . . . [o]n timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

         The parties agree that Mclsaac has no statutory right to intervene. As a result, Mclsaac only has a right to intervene if he meets the requirements of subsection (a)(2). Intervention of right under this section requires (1) a timely motion, and (2) an interest relating to the property or transaction at issue, which (3) might be practically impeded or impaired by the disposition of the action and (4) is inadequately represented by the existing parties. Angel Flight of Ga., Inc. v. Angel Flight of Am., Inc.,272 Fed.Appx. 817, 819 (11th Cir. 2008). "Once a party establishes all the ...


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