McDonnell Douglas Framework and Pretext in Whistleblower Cases
Recently, the Georgia Court of Appeals formally stated that the McDonnell Douglas framework, used in Title VII retaliation, federal whistleblower, and state discrimination claims, applied to claims brought under the Georgia Whistleblower Act. Although, in Forrester v. Ga. Dept. of Human Svcs., 308 Ga. App. 716, 708 S.E.2d 660 (2011), the Court of Appeals previously held that the McDonnell Douglas analysis was appropriate for courts to use in evaluating whether a state whistleblower claim is subject to summary adjudication, this decision was physical precedent only. With its recent decision in Tuohy v. City of Atlanta, 771 S.E.2d 501 (2015), the Court of Appeals solidified the applicability of the McDonnell Douglas analysis to state whistleblower claims.
The McDonnell Douglas “test” calls for a burden-shifting analysis where the plaintiff must first make a prima facie case of retaliation. If the plaintiff meets this burden, the burden shifts to the employer to show a legitimate, nondiscriminatory reason for the adverse employment action. As explained by the Court of Appeals, “[t]he employer need not persuade the court that its proffered reasons are legitimate, as its burden is merely one of production, not proof” and is “exceedingly light.” Id. at 506 (quoting Burgos-Stefanelli v. U.S. Dept. of Homeland Security, 410 Fed. Appx. 243, 247 (11th Cir. 2011) (emphasis in original).
If the employer meets this burden of production, the burden shifts back to the plaintiff to show that each proffered reason was pretext. The plaintiff can establish pretext “by a direct showing that a discriminatory reason more likely motivated the defendant or by an indirect showing that the defendant’s explanation is not credible.” Id. (quoting Bailey v. Stonecrest Condo. Assn., 304 Ga. App. 484, 491, 696 S.E.2d 462 (2010). In order to meet this burden, the plaintiff “must present probative evidence on the issue of pretext because the plaintiff has the burden of establishing pretext” and “must meet the [proffered] reason head on and rebut it, and  cannot succeed by simply quarrelling with the wisdom of that reason, or showing that the decision was based on erroneous facts.” Id.
The Touhy decision is helpful as it provides concrete direction to parties and judges as to how to analyze whistleblower claims. As a general rule of thumb, public employers should be able to articulate, and support, legitimate, non-discriminatory reasons for any adverse employment actions to avoid liability in these type of cases.