City of Pendergrass v. Rintoul

354 Ga.App. 618

841 S.E.2d 399

CITY OF PENDERGRASS

v.RINTOUL et al.

A19A2071

Court of Appeals of Georgia.

March 16, 2020

Certiorari Dismissed April 5, 2021

Michael A. Caldwell, Earnest H. Delong Jr., Atlanta, for Appellant.

Nancy Val Preda, for Appellee.

Reese, Judge.

The City of Pendergrass ("the City") appeals from the final judgment entered against it in this whistleblower action, following a jury verdict in favor of Katherine Rintoul ("Appellee Rintoul") and William Garner ("Appellee Garner") totaling over $1,000,000. The City asserts that the trial court erred in failing to grant its motions for a directed verdict. The City also asserts that the jury's damage awards to the Appellees were both arbitrary and unsupported by competent evidence. For the reasons set forth infra, we affirm.

On appeal from a jury verdict in a civil case, we view the record in the light most favorable to the jury's verdict and the trial court's final judgment.¹ So viewed, the record shows the following facts. Appellee Rintoul was the City Clerk for the City from January 2005 to July 2009. In addition to City Clerk, Appellee Rintoul held the additional positions of Election Superintendent, Librarian, and Court Clerk for the City. Appellee Garner was a lieutenant with the City police department from January 2005 to September 2009.

In June 2009, the Appellees gathered evidence which they believed equated to, inter alia, misuse of public tax moneys, misuse of local-option sales tax ("LOST") funds, misuse of city equipment, bribery of public officials, and employment of an undocumented immigrant. On June 27, 2009, City Administrator and Chief of Police, Robert Russell ("Russell"), met with Appellee Garner, accused Garner of making derogatory statements about him, and threatened to terminate Garner as a result. Appellee Garner recorded the conversation with Russell via the audio microphone on Garner's duty belt, which transmitted to the recording device in his patrol car. The following day, on June 28, the Appellees met with Melvin Tolbert, the mayor ("Mayor Tolbert") of the City. The Appellees supplied Mayor Tolbert with the documents, recordings, and evidence in order for him to investigate what the Appellees alleged were misappropriation of city funds, misuse of city property, bribery of public officials, and other misdeeds by city officials and employees. Appellee Garner also voiced concerns about potentially illegal actions by Russell.

Mayor Tolbert requested time to investigate the allegations made by the Appellees, at which time he requested that City Attorney Walter Harvey ("Harvey") review the documents and evidence provided by the Appellees to determine if Russell had misused city funds. Approximately a week later, Harvey reported the results of his investigation to Mayor Tolbert. As a result of the investigation, Mayor Tolbert docked Russell's salary by $10,000 per year, and removed him from his position as Chief of Police. A new chief of police, James LaRoque, was later appointed to replace Russell.

Following the Appellees’ conversation with Mayor Tolbert, Russell issued orders, verbally and in writing, to Appellee Garner mandating that Garner be isolated from all city employees. Russell also commanded Garner not to converse with any city employee, including fellow members of the police force, or he would face termination. The City moved the location of the police station, records and all other police personnel to City Hall, but refused to allow Appellee Garner access to the building after changing the locks. The City required Appellee Garner to work in the former police building alone, sequestered from all other city employees without telephone service or any of the essential records and equipment required to perform his duties as a police officer, except for the use of his patrol vehicle while on duty.

A fellow police officer working for the City filed a complaint against Appellee Garner, which led to an investigation against Garner. The City filed a statement with the Georgia Peace Officers Standards and Training ("POST") Council regarding Appellee Garner's resignation, stating that Garner had resigned in lieu of termination. At trial, James LaRoque testified that he knew Appellee Garner's POST record (which details a law enforcement officer's training, employment history, and violations) was incorrect, but did not take any attempts to remove or correct the false statement. The incorrect statements in Appellee Garner's POST record negatively affected his ability to gain employment with other departments following his resignation from the City.

In July 2009, Mayor Tolbert met with all city employees to inform them that there would be large-scale layoffs because of the city's perilous economic situation. Appellee Rintoul was terminated at the conclusion of the meeting, along with three other city employees. However, the other three employees were rehired shortly thereafter. Further, within weeks of terminating Appellee Rintoul, the City hired additional police officers, James LaRoque as chief of police, and a city clerk.

The Appellees initially sued the City and eight individual city officials alleging retaliation under the Georgia Whistleblower Act,² Racketeer Influenced and Corrupt Organizations Act violations, tampering with evidence, witness tampering, theft by conversion, theft of services, criminal conspiracy, bribery, extortion, and making false statements. The trial court granted the City's partial motion for summary judgment. On interlocutory review, we vacated the trial court's decision in June 2017.³

By the time of trial, a single retaliation claim remained, with the City remaining as the sole defendant. At the close of the presentation of the Appellees’ evidence, the City moved for a directed verdict, arguing that Appellee Garner was collaterally estopped from rearguing that he had been constructively discharged and that the City was not a "public employer" subject to the Georgia Whistleblower Act,⁴ because it did not receive state funds. The trial court denied the City's motion, and the City renewed its motion for directed verdict at the close of evidence. The jury returned a verdict for the Appellees on their claim of retaliation. Following a hearing on a motion for attorney fees, the trial court issued a final judgment on January 30, 2018. This appeal followed.

"The standard of appellate review of the trial court's denial of a motion for a directed verdict is the ‘any evidence’ standard."⁵ Additionally, "a jury verdict, after approval by the trial court, and the judgment thereon will not be disturbed on appeal if supported by any evidence, in the absence of any material error of law."⁶ Moreover, "[t]he issue of damages is a matter for the jury, and a reviewing court should not interfere with the jury's damages award unless it is so small or excessive that it justifies an interference of gross mistake or undue bias."⁷ Additionally,

the appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant's motion for directed verdict, new trial and j.n.o.v. will not be disturbed.⁸

"The jury is the final arbiter of the facts, and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict."⁹ Further, in order to prevail on a motion for directed verdict, an appellant must show "that there was no conflict in the evidence as to any material issue and that the evidence introduced, with all reasonable deductions therefrom, demanded the verdict sought."¹⁰

With these guiding principles in mind, we turn now to the City's specific claims of error.

1. The City asserts that the trial court erred in failing to grant its motions for directed verdict. Specifically, the City contends that the Appellees failed to prove it is a "public employer" and that the Appellees were not "public employees" within the meaning of the Georgia Whistleblower Act. We disagree.

Under OCGA § 45-1-4 (a) (4), the term "[p]ublic employer" is defined as

the executive, judicial, or legislative branch of the state; any other department, board, bureau, commission, authority, or other agency of the state which employs or appoints a public employee or public employees; or any local or regional governmental entity that receives any funds from the State of Georgia or any state agency.

Under OCGA § 45-1-4 (a) (3), the term "[p]ublic employee" is defined as

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.

The Georgia Whistleblower Act "applies to the receipt by a public employer from any public employee of complaints or information concerning the possible existence of any activity constituting fraud, waste, and abuse in or relation to any state programs and operations under the jurisdiction of such public employer."¹¹

In its motion in limine, the City stated that the issues to be tried included whether the City was a public employer, whether the Appellees were public employees, whether the Appellees made a disclosure under OCGA § 45-1-4, and whether the City retaliated against the Appellees. Within the joint pre-trial order, at the commencement at trial, the City asserted that whether the City violated the Georgia Whistleblower Act was a decision for the jury.

During trial, the court received two motions for a directed verdict from the City. The first motion was given by the City at the...