Albers v. Ga. Bd. of Regents of the Univ. Sys. of Ga.

330 Ga.App. 58

766 S.E.2d 520

ALBERS

v.GEORGIA BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA et al.

No. A14A1220.

Court of Appeals of Georgia.

Nov. 21, 2014.

Billips & Benjamin, Matthew Carl Billips, Decatur, for Appellant.

Samuel S. Olens, Atty. Gen., Shelley S. Seinberg, Asst. Atty. Gen., for Appellees.

Opinion

PHIPPS, Chief Judge.

On November 19, 2009, Christopher Albers was given written notice that he would be terminated from his position as chief of police at Georgia Perimeter College (“GPC”). Asserting a wrongful termination claim under the Georgia Whistleblower Statute,¹ Albers sued the Georgia Board of Regents of the University System of Georgia, GPC, and GPC's President. The defendants moved for summary judgment, arguing that the facts did not support a whistleblower claim and that the applicable statute of limitation barred the action. The trial court granted the motion, and Albers appeals. For reasons that follow, we reverse.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law.² We review the grant of summary judgment de novo, construing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the non-moving party.³

So viewed, the record shows that Albers began working for GPC as chief of police in March 2005. In this role, he served as chief executive of GPC's department of public safety, overseeing security services, police procedure, parking control, homeland security, and other security matters. According to Albers, his supervisor, Executive Vice President Ronald Carruth, had never criticized his performance prior to November 2008. That changed, however, following an incident in late October of that year.

On October 28, 2008, a GPC student reported to the public safety department that his laptop was missing from a classroom. GPC officers investigated, concluded that another student had taken the computer, and obtained a warrant for her arrest. In the meantime, the suspect's mother contacted the school, complaining about how her daughter had been treated by GPC officers.

After this complaint, several college administrators, including the dean of student services and director of human resources (“HR”), instructed Albers to speak with the district attorney about having the charges against the student reduced or dropped. Albers refused, telling Carruth: “[I]t would be inappropriate and unethical for me to try and influence the DA in any way as to how he would handle this case.”

At some point, the HR director commenced her own investigation into the laptop incident. Albers and his deputy chief objected to the HR inquiry, asserting that it interfered with their ongoing criminal investigation and obstructed justice. Albers discussed the concurrent HR investigation with an assistant district attorney, who indicated that HR's inquiry was improper. Following this conversation, Albers informed Carruth that GPC should not attempt to influence the outcome of the criminal prosecution, and he continued to object to the administration's interference in the police investigation.

The record further shows that Albers's interference objections were not limited to the laptop incident. According to Albers, the administration “repeatedly insert[ed] itself improperly into criminal investigations.” On one occasion, for example, Anthony Tricoli, the president of GPC, told Albers how to proceed with a criminal investigation involving a student and instructed him to work directly with the dean of student services. When Albers objected that Tricoli had overstepped his bounds and was interfering with a police inquiry, Tricoli responded, “I'm the President.”

By the spring of 2009, the relationship between the college administration and the public safety department “was extremely strained,” and Albers believed that his job was in jeopardy. According to Albers, Carruth was undermining his authority, and the HR director was overtly hostile toward him. Also during this period, an audit revealed that Albers had used a GPC warehouse to receive and store large amounts of grain that he needed for his “home brewers” beer-making club. Although GPC's director of logistical services had given Albers permission to use the warehouse, Carruth and Tricoli asserted that Albers had exercised poor judgment in having beer grain delivered to the campus.

On June 16, 2009, GPC issued a written reprimand and one-day suspension to Albers in connection with the beer grain deliveries. A few days later, on June 19, 2009, GPC suspended Albers indefinitely after concluding that he had violated a direct order not to discuss certain matters with his staff.

Carruth met with Albers on June 25, 2009, and told him that he should resign or he would be terminated. Albers initially agreed to resign, and Carruth indicated to Albers that he was in a “transition period,” which Albers understood to mean a “transition out the door.” Over the next few months, Albers performed special projects for Carruth, but he no longer functioned as the GPC police chief and had no authority within the GPC public safety department. At that point, Albers knew his employment would be ending. He also “felt that [he] was being retaliated against for ... upholding[ing] the law.”

In August 2009, Carruth asked Albers to sign a “Letter of Understanding” that outlined, among other things, his limited responsibilities and duties going forward at GPC, as well as an agreement that he submit his resignation. The letter further stated: “[I]t is estimated that your last day with GPC will be December 31, 2009, or whenever you find employment, whichever comes first.” Albers refused to sign the letter, did not agree to its terms, and told Carruth that he had decided not to resign from his position.

On November 19, 2009, Carruth issued a termination letter to Albers, which provided: “You will be terminated from your position effective December 11, 2009 for unsatisfactory job performance.” Less than one year later, on November 10, 2010, Albers filed this suit, asserting that his termination constituted improper retaliation under the whistleblower statute. The defendants subsequently moved for summary judgment. The trial court granted the motion, finding that (1) Albers did not engage in protected whistleblowing activity; (2) even if Albers had engaged in protected activity, no causal connection existed between that activity and his termination; (3) Albers was terminated for legitimate business reasons; and (4) Albers's claim was barred by the statute of limitation.

1. Under Georgia's Whistleblower Statute, a public employer may not 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” 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.”⁴ The term “retaliate” 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 or conditions of employment for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency.⁵

To establish a claim under the statute, a public employee must demonstrate that (1) he was employed by a public employer; (2) he made a protected disclosure or objection; (3) he suffered an adverse employment action; and (4) there is some causal relationship between the protected activity and the adverse employment action.⁶ The parties do not dispute the trial court's finding that Albers was a public employee employed by a public employer. The question on appeal is whether he offered evidence supporting the other elements of his claim.

(a) The defendants argue, and the trial court found, that Albers never engaged in protected whistleblowing activity. Albers, however, objected to the administration's directive that he speak with the district attorney about having the charges against the suspected laptop thief dropped or reduced. He also took exception to the HR laptop investigation, relaying to Carruth his understanding from an assistant district attorney that the investigation was improper and that “it is illegal for any entity to try and influence the outcome of a criminal case in any way.”

The trial court dismissed these objections, finding that they “were about potential, speculative, or nonexistent violations ... none of which constitute protected activity under [OCGA § 45–1–4 ].”⁷ But the Whistleblower Statute protects a public employee who objects to employer-related activity that he reasonably believes violates the law.⁸ And particularly given Albers's communication with the assistant district attorney, at least some evidence supports the conclusion that Albers opposed specific, ongoing activity by GPC's administration that he reasonably believed obstructed justice.⁹ The trial court, therefore, erred in granting summary judgment on this ground.¹⁰

(b) The trial court also found summary judgment appropriate on the issue of causation. According to the court, the substantial delay between the alleged whistleblowing activity and Albers's termination undermined any causal link between the events as a matter of law. We disagree.

The causation element in a whistleblower case “is construed broadly so that a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.”¹¹ It is true that timing may be important in the causation analysis. As we have noted, a retaliation claim fails “[i]f there is a substantial delay between the protected expression and the adverse action in the absence of other evidence tending to show causation.”¹² In...