Me. v. Dep't of Corr.

355 Ga.App. 707

845 S.E.2d 736

MAINE

v.DEPARTMENT OF CORRECTIONS; and vice versa.

A20A0049, A20A0308

Court of Appeals of Georgia.

June 23, 2020

Trent Lee Coggins, Douglas Ray McMillan, for Appellant in A20A0049.

Christopher Michael Carr, Annette M. Cowart, Bryan Keith Webb, Laura Wilkerson McDonald, Atlanta, Courtney Allison Coons Poole, for Appellee in A20A0049.

Christopher Michael Carr, Annette M. Cowart, Bryan Keith Webb, Laura Wilkerson McDonald, Atlanta, Courtney Allison Coons Poole, for Appellant in A20A0308.

Trent Lee Coggins, Douglas Ray McMillan, for Appellee in A20A0308.

McFadden, Chief Judge.

These appeals arise from Sherman Maine's action against his former employer, the Georgia Department of Corrections (the Department), for retaliation in violation of the Georgia Whistleblower Act, OCGA § 45-1-4. After a jury found in Maine's favor on the issue of liability, the trial court granted the Department's motion for judgment notwithstanding the verdict (JNOV). Maine challenges that ruling in Case No. A20A0049. The trial court also conditionally denied the Department's alternative motion for new trial. The Department challenges that ruling in Case No. A20A0308.

Maine, formerly a captain in a state prison, claims that the Department retaliated against him for disclosing and objecting to a confidential operation in the prison that required Maine to provide an inmate with cell phones without his warden's written authorization. He argues that the lack of written authorization for the operation violated a regulation requiring Department personnel to adhere to policies published by the Department. The jury found that Maine objected to this alleged violation at the time of the operation and later disclosed the alleged violation in a letter to the Department's Commissioner, and that the Department fired Maine in retaliation for these actions. But, as detailed below, even when we view the trial evidence most favorably to Maine, that evidence showed that the only person aware of Maine's objection about the lack of written authorization was his warden, who was no longer employed at the prison when Maine was fired and who did not have a role or input in the decision to fire him. And although Maine discussed the confidential operation in his letter to the Commissioner, he did not disclose the aspect of the operation that he contends was unlawful — the lack of written authorization. For these reasons, the trial evidence viewed most favorably to Maine did not show that the Department fired Maine in retaliation for protected objections or disclosures, and the trial court did not err in granting the Department's motion for JNOV on Maine's whistleblower claim. So we affirm the judgment in Case No. A20A0049.

Given our conclusion that the trial court properly granted a JNOV to the Department, we need not reach the issues raised in the Department's cross-appeal from the alternative ruling denying its motion for new trial. So we dismiss Case No. A20A0308 as moot. Finally, we deny as moot Maine's motion to dismiss the Department's cross-appeal as being untimely filed.

1. Facts.

Our resolution of these appeals rests on our review of the trial court's grant of the JNOV to the Department. In reviewing that ruling, we must consider "whether the evidence, with all reasonable deductions therefrom, demanded a verdict contrary to that returned by the factfinder. If there is any evidence to support the jury's verdict, viewing the evidence most favorably to the party who secured the verdict, it is error to grant the motion." Mosley v. Warnock , 282 Ga. 488 (1), 651 S.E.2d 696 (2007) (citations and punctuation omitted). We acknowledge that much of the trial evidence in this case was strongly disputed. On many points Maine and his witnesses told a completely different story than the Department's witnesses. Where such stark conflicts in witness testimony occur, we must, consistent with our standard of review, accept the version of the story that favors Maine.

So viewed, the trial evidence showed that in 2014 the Department fired Maine from his position as a captain at the Valdosta State Prison because, four years earlier, Maine had provided several cell phones to an inmate at the prison who was working as a confidential informant (CI) as part of a confidential operation run by the Department. In the fall of 2010, Maine had been ordered to give the phones to the CI by the then-warden of the prison and by at least one Department investigator. In a meeting with the warden and several Department investigators, Maine had voiced general objections about the confidential operation, emphasizing the safety risks that the operation posed to the CI. In separate conversations with the warden he voiced a more specific objection that he did not have written authorization to give the CI the cell phones. He repeatedly asked the warden for written authorization, but the warden refused to provide it to him. The confidential operation ended several months later, when the CI was transferred out of the prison after being badly injured in an attack by other inmates.

Subsequently, Maine became the subject of a criminal investigation conducted by the Federal Bureau of Investigation with the assistance of investigators from the Department. The FBI investigation primarily focused on other activities that Maine disputed at trial.

In October 2012, the prison had a new warden who, on the recommendation of a superior in the Department, suspended Maine with pay pending an "internal investigation." At that time Maine had no knowledge of the investigation and did not understand why he was being investigated.

Shortly after being suspended, Maine sent a letter to the Commissioner of the Department complaining that he was being treated unfairly and asking for an explanation of and help in resolving his suspension. Among other things, he described in that letter the 2010 confidential operation and stated that he had given the CI cell phones at the instruction of the former warden and several Department investigators. But Maine did not mention in the letter either the lack of written authorization for the operation or his objections to the warden on that ground.

In the fall of 2013, the Department began an administrative investigation of Maine that overlapped with the ongoing FBI investigation in some respects but also addressed Maine's statement that he had provided an inmate with cell phones. The person leading that investigation interviewed Maine, the former warden, and the other Department investigators involved in the 2010 confidential operation, among other people. Maine reiterated his assertion that he had been instructed to provide the cell phones as part of the operation, but he did not mention his request that the authorization be put into writing or the former warden's failure to do so. The others involved in the 2010 operation, including the former warden, denied in their interviews that the operation involved providing the CI with cell phones or that they had instructed Maine to do so. As a result, the investigative case file contained no reference at all to written authorization or any objection by Maine to the lack thereof.

Several persons in the Department reviewed the investigative case file, including the Department's general counsel, who recommended to the prison's warden that Maine be fired for giving cell phones to an inmate. In his written recommendation, the general counsel acknowledged Maine's assertion that he had been instructed to do so, but he concluded that the evidence did not corroborate that assertion. By that time, the prison had yet another warden, who fired Maine on August 22, 2014, based on the general counsel's recommendation. The warden told Maine he was being fired for giving the CI cell phones.

2. Maine's claim under the Georgia Whistleblower Act.

Maine brought a claim against the Department under the Georgia Whistleblower Act, OCGA § 45-1-4, which "creates a cause of action for retaliatory discharge, suspension, demotion, or other adverse employment action taken against a public employee ... by a public employer as a result of the employee's disclosure of, or refusal to participate in, violation of the law[, a rule, or a regulation]." West v. City of Albany , 300 Ga. 743, 797 S.E.2d 809 (2017) (footnotes omitted). Under the Act, a public employer such as the Department 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 government agency," OCGA § 45-1-4 (d) (2), or "retaliate against a public employee 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) (3). See Colon v. Fulton County , 294 Ga. 93, 97 (2), 751 S.E.2d 307 (2013). To prevail on his retaliation claim, Maine was required to "establish 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." Franklin v. Pitts , 349 Ga. App. 544, 547, 826 S.E.2d 427 (2019) (citation and punctuation omitted).

There is no question that the trial evidence showed Maine was employed by a public employer and suffered an adverse employment action, two of the four elements of his cause of action. Instead, our review of the grant of a JNOV turns on whether Maine's objections to the confidential operation in 2010 or his letter to the Commissioner in 2012 concerned a violation of a law, rule, or regulation, and whether either of these activities were causally connected with his 2014 firing.

(a) Alleged violation of a law, rule, or regulation.

We must first identify the law, rule, or regulation that Maine contends was violated...