Thompson v. Dekalb Cnty.

363 Ga.App. 61

870 S.E.2d 558

THOMPSON

v.DEKALB COUNTY, Georgia.

A21A1754

Court of Appeals of Georgia.

March 7, 2022

Eleanor Mixon Attwood, for Appellant.

Randy C. Gepp, Ann Reinhard Schildhammer, Marc Andre Taylor, Atlanta, for Appellee.

Gobeil, Judge.

In this Georgia Whistleblower Act¹ ("GWA") action filed by Mark A. Thompson, the trial court granted summary judgment to Thompson's former employer, DeKalb County. Thompson appeals, contending that the trial court erred in finding Thompson did not make a prima facia case of whistleblower retaliation, in accepting DeKalb County's reason for terminating Thompson as true, and in failing to consider his evidence of pretext. Thompson also argues that the trial court erred by resolving factual disputes and failing to view the evidence in the light most favorable to Thompson; and in finding that his disclosures were not protected because they were "widely known." For the reasons that follow, we affirm.

On appeal from the grant of summary judgment, this court applies a de novo standard of review. Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. We must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

Tuohy v. City of Atlanta , 331 Ga. App. 846, 846, 771 S.E.2d 501 (2015) (citations omitted).

So viewed, the record shows that Thompson began working for the DeKalb County Law Department in 2003. From 2010 through 2014, he worked as a senior assistant county attorney. In 2010, County Attorney Lisa Chang assigned Thompson to represent DeKalb County in a breach of contract action filed in DeKalb County Superior Court by Paul Champion d/b/a Champion Tree Service, asserting that it was not paid for all work performed for the county (the "Champion litigation").²

During the course of representing DeKalb County in the Champion litigation, Thompson allegedly discovered that Champion overbilled the county, did not perform work it claimed to have performed, and engaged in acts of fraud. Thompson also found information linking a county employee to suspicious acts that appeared fraudulent. Thompson notified Chang of his findings; and, although she initially dissuaded him from further disclosures, he eventually reported the alleged criminal activities to the DeKalb County District Attorney. In January 2012, a special purpose grand jury was empaneled to investigate alleged corruption in DeKalb County. Thompson testified before the grand jury in February 2012 about his findings regarding the alleged criminal activities relating to the Champion litigation. The grand jury subsequently issued a report of its findings in January 2013.

During his investigation into the Champion matter, Thompson discovered what he considered to be flaws in DeKalb County's bidding and contract formation process, which he believed made it easier for vendors to defraud the county. Specifically, he believed DeKalb County failed to adhere to OCGA § 36-10-1³ in forming contracts because the contracts were not entered on the County Commission meeting minutes.

In March 2013, Overtis Brantley became the interim County Attorney and ultimately the permanent County Attorney. When she arrived, she met one-on-one with every attorney in the law department. In their introductory meeting, Brantley discussed the Champion litigation with Thompson. Brantley described Thompson's synopsis of the case as "a little incoherent," but she "could tell it was something he was passionate about." Thompson explained to Brantley that he had disclosed the corruption to the District Attorney and testified before the special purpose grand jury.

Thompson and Brantley had several tense interactions. For instance, Thompson thought that Brantley was mocking him when discussing the criminal activities, particularly when she responded that "people steal and people lie." At another meeting, when Thompson told Brantley that Champion was demanding nearly $900,000, she responded "that's Monopoly money." To which Thompson replied "No. That's taxpayer money."

In 2013, Thompson wanted to raise the defense that the contract with Champion did not comply with Georgia law.⁴ After being given permission, Thompson filed an amended answer denying that a contract existed. The superior court subsequently ruled that the contract was valid and enforceable.

Thompson requested that outside counsel be appointed to assist him with the Champion litigation, and Brantley agreed in mid-2014 to retain Anita Thomas. DeKalb County filed a motion for summary judgment in the Champion litigation, asserting, in part, that it was immune from the suit based on sovereign immunity. The superior court denied DeKalb County's motion, and the county appealed. Brantley and Thompson disagreed as to what arguments to include on appeal. Thompson wanted to emphasize the lack of a valid contract and alleged corruption related to the Champion litigation because he thought evidence of Champion's wrongdoing provided "a good reason for [DeKalb County] to not honor [the] contract." However, Brantley and Thompson's managing attorney, Laura Johnson, sought to focus the appeal on the purely legal issue of sovereign immunity to ensure a "clean record." Thompson ultimately was critical of Thomas's work, writing in an e-mail that outside counsel "ha[d] obviously never prepared a motion for summary judgment before." After the decision was made to exclude the extraneous criminal allegations from the appeal of the sovereign immunity issue, in November 2014, Thompson told Johnson that he wished to withdraw from the Champion litigation.

Brantley was extremely upset about Thompson's decision to withdraw from the Champion litigation. She believed his continued argument as to what to include in the appeal (despite her stated strategic reasons for the decision) undermined her authority as the final decision-maker concerning legal strategy. In a December 2014 meeting, Brantley told Thompson that he was not a "team player," that he acted like "a child" and "the smartest person in the room," and that his behavior was "ugly." Brantley believed Thompson, as an at-will employee, could be fired for withdrawing from the Champion litigation as insubordination. Johnson urged Brantley not to fire Thompson, but to let him withdraw, in the hopes that if he worked on matters other than the Champion litigation, "his behavior might revert to something within an acceptable range[.]"

In February 2015, this Court dismissed the appeal from the denial of the motion for summary judgment for DeKalb County's failure to follow the interlocutory appeal procedure ( OCGA § 5-6-34 (b) ).⁵ Champion then moved for attorney fees against DeKalb County and Thompson individually. Champion accused Thompson of presenting false information to the superior court regarding the work Champion performed and delaying the proceedings. Thompson wanted to respond to the motion for fees by naming the DeKalb County employee who had allegedly given him the false information, but Johnson disagreed with this strategy, as she did not believe it would help Thompson or the County.

On May 29, 2015, Brantley, Thompson, Johnson, and Thomas met to discuss the motion for attorney fees. At the meeting, Thompson became upset and behaved in a way that Brantley considered unprofessional. At the end of that meeting, Brantley told Thompson to look for another job. About three weeks later and after another meeting, Brantley sent Thompson a termination letter, in which, among other concerns, she stated that Thompson "responded to stressful litigation situations in a hostile and arrogant manner when interacting with me and others within this office during recent months[,]" and "[t]his type of behavior is not consistent with the team environment I have been working to build in the law department." The letter gave Thompson the option to resign, but he declined, and his employment was terminated in June 2015.

In May 2016, Thompson filed a civil action in the trial court alleging he was terminated by DeKalb County in violation of the GWA. Thompson pointed to his actions and disclosures pertaining to the Champion litigation and associated corruption as protected activities and asserted that DeKalb County unlawfully retaliated against him for those actions. He then filed an amended complaint containing counts for unlawful breach of the GWA, attorney fees pursuant to the GWA, various theories of unlawful termination based on race, and age discrimination under the Age Discrimination in Employment Act.

Because these additional claims presented federal questions, the case was removed to the United States District Court for the Northern District of Georgia in June 2017. Thereafter, DeKalb County moved for summary judgment. The federal magistrate judge issued a Final Report and Recommendation, recommending that summary judgment be granted on all counts of the complaint. After review of the report, the district court judge granted summary judgment to DeKalb County on each of Thompson's federal claims, but declined to exercise supplemental jurisdiction over the state GWA claims, which were remanded to the trial court.

On remand, DeKalb County again filed for summary judgment on the GWA claims. The trial court subsequently granted summary judgment to DeKalb County. The trial court found that either the temporal proximity between DeKalb County's knowledge of protected activities and the adverse employment action was not close enough to be sufficient evidence of causality, or the activities were merely litigation strategy disagreements and not disclosures of violations of laws, rules, or regulations. Further, the trial court noted that the corruption unearthed during the Champion litigation was widely known and therefore not covered by the GWA. Finally, the trial court found that Thompson failed to show that the reasons for his termination were...