The Georgia Whistleblower Act May Apply to a City

May 22, 2020

 

            In March 2020, the Georgia Court of Appeals upheld a jury verdict in favor of a former police lieutenant and a city clerk against the City of Pendergrass.  City of Pendergrass v. Rintoul, --- S.E.2d ----, 2020 WL 1242886 (2020).  Plaintiffs Rintoul and Garner were both employed by the City of Pendergrass from 2005 through 2009.  The plaintiff’s brought claims of retaliation under the Georgia Whistleblower Act.

 

            In June 2009, plaintiffs submitted documentation to the mayor, which they believed amounted to misuse of public tax money, misuse of city equipment, bribery of public officials, and employment of an undocumented immigrant.  A day before the meeting with the mayor, Garner met with the chief of police, who accused Garner of making derogatory comments about him and threatened to fire Garner.  Approximately one week after receiving the documentation the mayor docked the salary of the chief of police and removed him from his position, appointing a new chief.  The former chief of police issued orders verbally and in writing mandating that Garner be isolated from the rest of the city employees upon threat of termination.  Garner was not permitted to speak with his fellow police officers.  The police department was moved to another building, but Garner was required to stay, by himself, in the old building.  Another police officer filed a complaint against Garner and the City filed a statement with POST indicating Garner had resigned in lieu of termination.  The new chief of police testified he knew the record was incorrect, but did not correct it.  Due to the statement on Garner’s POST record, he had difficulty securing another job.  In July 2009, Rintoul was laid off, purportedly as a city-wide reduction in workforce due to economic reasons.  Shortly after the layoff, the other employees who were laid off with Rintoul were rehired along with several new employees. 

 

            At trial, the City filed a motion arguing that it was not a public employer because it did not receive state funds and that Garner was collaterally estopped from arguing he was constructively discharged.  The trial court denied the City’s motion and a jury entered a verdict against the City based on Plaintiff’s claim of retaliation under the Georgia Whistleblower Act.  With regard to the receipt of state funds, there was an issue of fact as to whether the city received benefits for upkeep of its libraries, funds for local-options sales tax, and whether the municipal court received funds.  Though the City’s auditor testified that the City did not receive State funds, the auditor conceded that she was not employed by the City during the relevant period and conceded that the libraries were provided high speed internet by the State.   The jury determined that the City was a public employer and that the plaintiffs were public employees.  The Court of Appeals upheld the jury’s finding. 

 

            The City also argued that Garner should be collaterally estopped from making a retaliation claim, because Garner was barred from making a constructive discharge claim.  The Court of Appeals noted that Garner’s claims related to retaliatory actions taken by the City prior to his resignation and after he resigned through the mischaracterization of his POST record.  The Court of Appeals determined that the mischaracterization of Garner’s POST record was a continuing retaliation, so that the Georgia Whistleblower Act applied.  The Court noted that under the Georgia Whistleblower Act retaliation is defined as:

 

the discharge, suspension, or demotion by a public employer of a public employee or any other adverse employment action taken by a public employer against a public employee in the terms or conditions of employment for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency.

 

            Whereas constructive discharge occurred where: “the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.”  Therefore, the Court of Appeals found that the claims were sufficiently different and trial court appropriately denied the City’s motion.

 

            The City also appealed the jury’s award of damages.  However, the Court of Appeals noted that “[i]f the City desired an explanation of the basis for the damage award, it had opportunity to object to the verdict form, which allowed the jury full control to set the damage award, and change or reform the verdict form prior to jury deliberation.”  Furthermore, the Court of Appeals noted the City failed to request a judgment notwithstanding the verdict or a motion for new trial.  Therefore, the Court of Appeals found that the jury’s award was appropriate. 

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