Freeman v. Smith

324 Ga.App. 426

750 S.E.2d 739

FREEMAN et al.

v.SMITH.

Board of Regents of the University System of Georgia

v.Smith.

Smith

v.

Board of Regents of the University System of Georgia et al.

Nos. A13A1289

A13A1290

A13A1291.

Court of Appeals of Georgia.

Oct. 31, 2013.

Certiorari Denied February 24, 2014.

Samuel S. Olens, Atty. Gen., Dennis R. Dunn, Deputy Atty. Gen., Annette M. Cowart, Sr. Asst. Atty. Gen., Christopher A. McGrew, Asst. Atty. Gen., for appellants.

Copeland & Walker, Roy W. Copeland, for appellee.

McFADDEN, Judge.

Cassandra Smith, a former administrative employee at Albany State University, sued Everette Freeman and Abiodun Ojemakinde—respectively, the University's president and vice president for academic affairs—for violating her constitutional and statutory rights. She argued, among other things, that they fired her without due process of law. She also sued the Board of Regents of the University System of Georgia, alleging, among other things, that her termination was in retaliation for her role as a whistleblower and that the Board of Regents breached her employment contract. The defendants and Smith appeal the denial of their motions for summary judgment. We hold that because Smith has not presented evidence of a causal connection between her disclosures and any materially adverse action, the Board of Regents is entitled to summary judgment on the whistleblower claim. We also hold that Smith was an employee at will, so her termination did not breach the alleged employment contract and the Board of Regents is entitled to summary judgment on that claim. Moreover, as an employee at will, Smith had no property interest in her job so all of the defendants are entitled to summary judgment on her claims for due process violations. Accordingly, we reverse the denial of the defendants' motion for summary judgment and affirm the denial of Smith's motion for summary judgment.

"Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56(c)." Caldon v. Bd. of Regents of the Univ. System of Georgia, 311 Ga.App. 155, 715 S.E.2d 487 (2011) (citation omitted). "To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff's claim." Jones v. Bd. of Regents of the Univ. System of Georgia, 262 Ga.App. 75, 76, 585 S.E.2d 138 (2003). "A de novo standard of review applies to an appeal from a [ruling on] summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant." Caldon, 311 Ga.App. at 155, 715 S.E.2d 487. (citation omitted).

Viewed in this light, the record shows that in April 2009, Freeman hired Smith to be the interim associate vice president for research and sponsored programs. In October 2009, he sent her a letter offering her the job on a non-interim basis, and she accepted. The appointment letter stated that Smith would hold her administrative position "at the pleasure of the President, and it is subject to annual renewals."

Ojemakinde, who apparently was Smith's direct supervisor, grew disenchanted with her performance throughout 2010. He sent her to a leadership training center, but was unhappy with the results.

In February 2011, Freeman and Ojemakinde gave Smith a performance improvement plan with specific goals developed with her input. In March, Ojemakinde gave her an unfavorable annual performance evaluation.

On May 5, 2011, Smith asked for an emergency meeting with Freeman to discuss alleged violations of the law regarding certain federal grants. At the meeting on May 12, 2011, Freeman believed that Smith said she could no longer work with Ojemakinde. Freeman asked her to resign. When she refused, she was fired.

Smith asked Freeman to reconsider the decision, but he declined. Smith then appealed to the Board of Regents, which likewise affirmed. Smith was never given a hearing.

Smith sued the Board of Regents, Freeman, and Ojemakinde. She claimed that the individual defendants violated her due process rights by firing her without a hearing and without first employing progressive discipline practices. Against the Board of Regents, Smith asserted not only that her due process rights were violated, but also that the Board of Regents breached her employment contract and that she was fired in retaliation for being a whistleblower. The parties moved for summary judgment. The trial court denied the motions, but certified its order denying Freeman and Ojemakinde's motion for immediate review. After Freeman and Ojemakinde filed their appeal, Smith and the Board of Regents filed cross-appeals from the denial of their motions for summary judgment.

1. The Board of Regents was entitled to summary judgment on Smith's whistleblower retaliation claim.

OCGA § 45–1–4(d)(2) prohibits public employers 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, unless the disclosure was made with knowledge that the disclosure was false or with reckless disregard for its truth or falsity." The Board of Regents argues that it is entitled to summary judgment on Smith's whistleblower retaliation claim because, among other things, Smith has not shown a causal connection between her disclosures and any materially adverse employment action. We agree.

The parties assume that in analyzing Smith's whistleblower claim, we would follow the burden-shifting framework as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and approved in the physical precedent Forrester v. Ga. Dept. of Human Svcs., 308 Ga.App. 716, 722(1), 708 S.E.2d 660 (2011) (physical precedent). Although many courts have followed the McDonnell Douglas framework when analyzing retaliation claims based on circumstantial evidence, not all have done so. See, e.g., Ramirez v. Bausch & Lomb, 546 Fed.Appx. 829, 2013 WL 5716823, at *1, 2013 U.S.App. LEXIS 21371 at *3 (11th Cir. Oct. 22, 2013) ("[W]here there is no controlling state law, [Florida Whistleblower Act] claims are analyzed under the Title VII retaliation framework. For retaliation claims based on circumstantial evidence, we apply the burden-shifting analysis established in McDonnell Douglas ....") (citation omitted); Hicks v. Baines,

593 F.3d 159, 164 (2d Cir.2010) ("Retaliation claims under Title VII are evaluated under a three-step burden-shifting analysis.") (citation and punctuation omitted); Bishop v. Bell Atl. Corp., 299 F.3d 53, 58 (1st Cir.2002) (following McDonnell Douglas framework to analyze a claim with no direct evidence of retaliation under Maine's whistleblower statute). Compare Gordon v. FedEx Freight, 674 F.3d 769, 774 (7th Cir.Ill.2012) ("In resolving retaliatory discharge claims, Illinois does not apply the McDonnell Douglas burden-shifting framework commonly applied in federal retaliation cases."). Courts have observed that " one of the difficulties with applying the McDonnell Douglas framework at the summary judgment stage is that it invites trial judges to weigh evidence and assess the credibility of witnesses." Eastridge v. Rhode Island College, 996 F.Supp. 161, 165–166 (D.R.I.1998) (discrimination case) (citation and punctuation omitted).

We are not required to decide whether the McDonnell Douglas framework should be adopted in whistleblower retaliation cases because, under any standard, Smith has not pointed to record evidence that any materially adverse employment action was a matter of retaliation for her whistle-blowing activity. Jones, 262 Ga.App. at 81(4), 585 S.E.2d 138 (because the only direct evidence of record was that plaintiff was terminated for a legitimate reason, "[i]n order to avoid summary judgment, [he had to] show that the record provide[d] circumstantial evidence that his termination was a matter of reprisal."). See Caldon, 311 Ga.App. at 158–159 & n. 6, 715 S.E.2d 487 (acknowledging but not expressly adopting Forrester's analysis under the McDonnell Douglas burden-shifting framework of the grant of summary judgment on a whistleblower claim).

Smith alleged that she disclosed four violations of federal law or regulations. First, she alleged that at an unspecified time, she relayed to Freeman and Ojemakinde a complaint by Taryn Thomas, who was employed in the federally-funded Health Careers Opportunity Program, that Thomas had been required to perform numerous responsibilities that the grant specified other people were to perform. This violated OMB Circular A–110. (Smith does not describe what OMB Circular A–110 is, but presumably it is some sort of federal regulation.) The problem occurred prior to Smith's arrival at Albany State. When Smith did not get a response, she relayed her concern to the Board of Regents, which could not substantiate the allegations.

Second, Smith alleged that on multiple occasions, beginning in February 15, 2010, she reported to Freeman, Ojemakinde and others the misuse of funds in the federally-funded NASA Science Engineering Mathematics Aerospace Academy, in violation of federal budgeting rules. She reported that before she started at Albany State, Granville Wrensford and Elizabeth Lovett had subcontracted the position of "family café coordinator," a "key" position under federal regulations, to a person named Verda Parker even though the grant application, which was approved by the funding agency, specified that Elizabeth Lovett would hold the position. Smith also informed the Board of Regents, which could not substantiate the allegations.

Third, Smith alleged that in September 2010, she informed Freeman, Ojemakinde, and Connie Leggett that the staff involved in the federally-funded DNA Ancestry Project had conducted human subject research without obtaining prior approval from the Institutional Review Board, of which...