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Franklin v. Pitts

Court of Appeals of Georgia

March 15, 2019


          BROWN, JUDGE.

         In the second appearance of these parties before this Court, Dedrain Franklin appeals from the trial court's order granting summary judgment in favor of Robert Pitts ("the County"), whom Franklin sued in his official capacity as chairman of the Fulton County Board of Commissioners. In five enumerations of error, Franklin asserts that the trial court erred by failing to find that genuine issues of fact existed with regard to various elements of her claims against the County under the Georgia Whistleblower Act, OCGA § 45-1-4. For the reasons explained below, we find that Franklin cannot establish a genuine issue of material fact with regard to essential elements of her whistleblower claim - adverse employment action and pretext.

         "On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party." (Citation and punctuation omitted.) Seki v. Groupon, Inc., 333 Ga.App. 319 (775 S.E.2d 776) (2015). The majority of the relevant facts were delineated in our previous opinion, addressing a statute of limitation issue, as follows:

Viewing the evidence in the light most favorable to the plaintiff, Franklin has been an employee of the County since 2007, working in the health department. In 2011, she became a Financial Systems Coordinator, the duties of which included credentialing medical providers by submitting information to various care management organizations. In that capacity, she collected from providers information about their health status, demographics, and various numerical identifiers. She had additional responsibilities for credit card payment processing that involved handling confidential medical information from patients, including their diagnoses and demographics. In March 2012, Franklin was moved from a private office to a cubicle.
That move triggered a series of complaints by Franklin premised on the notion that working in a cubicle would expose providers' and patients' protected health information to the general public in violation of the law. In March 2012, she expressed concerns to her supervisors that moving to a cubicle could violate the confidentiality requirements of the federal Health Insurance Portability and Accountability Act [HIPAA]. Later that month, she filed an internal written grievance to that effect. In July 2012, the County's grievance review committee sent Franklin a recommended settlement order, approved by the County manager, finding that the health department had not erred in its practices and thus denying Franklin's grievance. The grievance committee recommended that the health department provide a secured office for Franklin or any other employee processing documents containing confidential health information.
Franklin contends that she experienced retaliation asa result of her grievance. After she filed her grievance, her credit card processing duties were assigned to another employee, who was moved from a cubicle to an office. Her credentialing duties [also] were assigned to another employee. . . .
Franklin also claims that she experienced other retaliation in her day-to-day interactions with management. She contends she was denied a request to attend a certain training. . . . Franklin notes that she asked to leave work early in December 2012 but that request was denied (although she left work early, anyway, and was not disciplined). She complains that management ignored other leave requests after she filed her grievance, including in early 2013. She points to an April 2014 incident in which management required an original of her absence excuse for some volunteer work, claiming that also was retaliation. Franklin also alleges that management required her to submit documents for jury duty leave that were not required of others, required a doctor's note after she took one day of intermittent FMLA leave, and generally harassed her for an inability to complete her work in a timely manner and made it harder for her to do her job; it is not apparent from the record when those particular events occurred, however.
Franklin also claims that the County retaliated by failing to hire her for two job transfers [promotions] for which she applied. She applied for a program administrator's position in July 2012 and was interviewed in August 2012, but a County official said that she didn't get the job because of her low interview scores. She also applied for a health program manager position but was informed by the County's recruiting division on January 25, 2013, that she had not been selected because she did not meet the minimum requirements for the position. Franklin filed a second grievance that same month, claiming retaliation and seeking transfer out of her department, which was denied in June 2013.

Franklin v. Eaves, 337 Ga.App. 292 (787 S.E.2d 265) (2016) (Franklin I).

         After this Court reversed the trial court's grant of summary judgment based upon the expiration of the statute of limitation, Franklin I, 337 Ga.App. at 299-300 (2), the trial court afforded Franklin additional time for discovery before ruling on the County's motion for summary judgment. In its order, the trial court concluded that Franklin failed to establish a genuine issue of material fact with regard to disclosure of a violation of or noncompliance with HIPAA or a causal link between her alleged protected activity and any adverse employment action. It also concluded that other than her denied promotions, she could not establish that she suffered an adverse employment action, and that with regard to these denied promotions she did not meet her burden of presenting proof to challenge the legitimate, non-retaliatory reason for her failure to receive the promotions.

         The Georgia Whistleblower Act precludes a public employer from retaliating 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," or "for objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation." OCGA § 45-1-4 (d) (2) and (3). Prohibited retaliation includes:

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 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).

         In construing these provisions, we have held that a public employee must establish "that (1) she was employed by a public employer; (2) she made a protected disclosure or objection; (3) she suffered an adverse employment action; and (4) there is some causal relationship between the protected activity and the adverse employment action. [Cit.]" Murray-Obertein v. Ga. Govt. Transparency & Campaign Finance Comm., 344 Ga.App. 677, 680-681 (812 S.E.2d 28) (2018). When analyzing claims brought under the Georgia Whistleblower Act, we apply the same burden-shifting analysis established by the United State Supreme Court for retaliation cases brought under Title VII of the Civil Rights Act of 1964. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (II) (93 S.Ct. 1817, 36 L.Ed.2d 668) (1973); Tuohy v. City of Atlanta, 331 Ga.App. 846, 848-850 (1) (771 S.E.2d 501) (2015).[1] Under this framework,

the plaintiff must first make a prima facie case of retaliation. If the plaintiff makes a prima facie case, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employment decision. If the employer successfully meets this burden of production, then the burden shifts back to the plaintiff to show that each proffered reason was pretext.

(Citation, punctuation and footnote omitted.) Harris v. City of Atlanta, 345 Ga.App. 375, 377 (813 S.E.2d 420) (2018).

         On appeal, Franklin contends that the trial court erred by requiring her to prove an actual violation of HIPAA as opposed to reasonable cause to believe that Fulton County violated or failed to comply with HIPAA or Fulton County regulations. See OCGA § 45-1-4 (d) (3). She also contends that the trial court erred by failing to conclude that all of her claims of retaliation constituted adverse employment action, that there was a causal relation between her protected activity and the adverse employment action, and that the County's proffered explanations for the adverse employment action were pretextual. We begin our analysis with the adverse employment action element of Franklin's claim.

         1. Adverse Employment Action. While Franklin contends that the trial court erred by concluding that she did not suffer from adverse employment action, the record shows that the trial court characterized the denial of two specific job opportunities as denied promotions sufficient to establish a prima facie case of an adverse employment action.[2] We will therefore only consider whether the following constituted adverse employment action: delaying a request to attend a training session; change of job duties from credentialing providers and credit card processing to electronic funds transfer duties; denial of leave requests and requests for documentation of leave; and the denial of a third alleged transfer opportunity.[3]

         (a) Freeman v. Smith. Our research has revealed only one Georgia decision addressing the standard for determining whether a public employee has met her burden of proving "adverse employment action" under the Georgia Whistleblower Act. In Freeman v. Smith, 324 Ga.App. 426 (750 S.E.2d 739) (2013), this Court addressed the validity of an administrative employee's claim that she suffered multiple instances of retaliation for her role as a whistleblower. Id. at 432 (1). We first addressed whether this Court should apply the burden-shifting framework of McDonnell Douglas, supra. We noted that not all jurisdictions had accepted this framework, as well as difficulties inherent in its application, before concluding that "[w]e are not required to decide[4] whether the McDonnell Douglas framework should be adopted in whistleblower retaliation cases because, under any standard, [the plaintiff] has not pointed to record evidence that any materially adverse employment action was a matter of retaliation for her whistle-blowing activity." Id. at 429 (1).

         After so stating, we outlined four occasions on which the plaintiff claimed she made protected disclosures under the Georgia Whistleblower Act. We then addressed the causation element, stating, "the only evidence [the plaintiff] has presented of a causal connection is the temporal proximity between her disclosures and the materially adverse employment actions. But, . . . the only actions that occurred less than three months after the disclosures were not materially adverse." Freeman, 324 Ga.App. at 432 (1). We then analyzed adverse employment action as follows:

"[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, meaning that it might well have dissuaded a reasonable employee from making [the statutorily-protected disclosure]." Cobb v. City of Roswell, 533 Fed.Appx. 888, 896, 2013 U.S. App. LEXIS 16608 at *18 (11th Cir. 2013) (citing Burlington Northern & Santa Fe R. Co. v. White, 548 U.S. 53, 67-68 (126 S.Ct. 2405, 165 L.Ed.2d 345) (2006)). The actionable employer conduct must be "significant," rather than "trivial." Burlington Northern, 548 U.S. at 67-68. We conclude that a reasonable employee would not have found this conduct - incorrectly warning [the plaintiff] that an employee would be transferred - to be materially adverse. For these reasons, it is immaterial that this warning occurred in the same month in which [the plaintiff] relayed her concerns. . . .

Id. Based upon this language, it is clear that this Court applied the standard established by the United States Supreme Court in Burlington, supra, to hold that the plaintiff in Freeman, with regard to one of her retaliation claims, had failed to establish an adverse employment action.[5]

         (b) Standard for Adverse Employment Action in Title VII Retaliation Cases. Our application of the Burlington standard for adverse employment action in federal retaliation cases to retaliation cases under the Georgia Whistleblower Act in Freeman, supra, is understandable at first glance. However, an examination of the differences between the federal retaliation statute and the Georgia Whistleblower Act, as well as the United States Supreme Court's rationale in Burlington, supra, makes it clear that we should not have done so.

         In Burlington, supra, the United States Supreme Court addressed whether the standard for adverse employment action in employment discrimination cases brought under the substantive discrimination section of Title VII should apply to retaliation cases brought under a different section of Title VII. 548 U.S. at 56. It noted a split in Circuit Courts of Appeal decisions with regard to "whether the challenged action has to be employment or workplace related and about how harmful that action must be to constitute retaliation." (Emphasis supplied.) Id. at 60 (II). At that time, three Circuit Courts of Appeal "appl[ied] the same standard for retaliation that they appl[ied] to a substantive discrimination offense, holding that the challenged action must result in an adverse effect on the terms, conditions, or benefits of employment." (Citations and punctuation omitted.) Id.

         In answering the question before it, the Supreme Court found the language of the different provisions significant. Burlington, 548 U.S. at 61 (II) (A). It quoted the following language from Title VII's core anti-discrimination provision (often referred to as a substantive discrimination claim):

         It shall be an unlawful employment practice for an employer

(1)to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. § 2000e-2(a)

(Punctuation omitted; emphasis in original.) Id. at 61-62 (I) (A). It then contrasted this language with the following language contained in ...

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