Brathwaite v. Fulton–Dekalb Hosp. Auth.

• Decision Date: 29 June 2012
• Docket Number: No. A12A0165.,A12A0165.
• Citation: 12 FCDR 2240,729 S.E.2d 625
• Parties: BRATHWAITE v. FULTON–DeKALB HOSPITAL AUTHORITY et al.
• Court: Georgia Court of Appeals

729 S.E.2d 625

12 FCDR 2240

BRATHWAITE

v.FULTON–DeKALB HOSPITAL AUTHORITY et al.

No. A12A0165.

Court of Appeals of Georgia.

June 29, 2012.

Matthew Carl Billips, Decatur, for Brathwaite.

Randy C. Gepp, Mary Janet Huber, Atlanta, for Fulton–DeKalb Hospital Authority et al.

ANDREWS, Judge.

After being terminated from her job as a medical coder at Grady Memorial Hospital, Althea Brathwaite sued the entity operating the hospital, the Fulton–DeKalb County Hospital Authority d/b/a Grady Health System (Grady); the hospital's chief executive officer, Michael Young; the hospital's senior vice president for human resources, Michael Black; the hospital's chief financial officer, Michael Ayres; and the hospital's medical coding manager, Tracey Quinn. Brathwaite alleged in count one that Grady terminated her in violation of the whistle-blower statute (OCGA § 45–1–4); in count two that Quinn was negligently hired and retained; in count three that Young, Black, Ayres, and Quinn were negligently supervised; in count four that Quinn tortiously interfered with her employment contract with Grady; and in count five that she was entitled to the award of attorney fees pursuant to OCGA § 13–6–11. The trial court granted Quinn's motion for judgment on the pleadings on the tortious interference claim, and granted summary judgment in favor of Grady, Young, Black, and Ayres on the remaining claims. On Brathwaite's appeal, we reverse the grant of judgment on the pleadings in favor of Quinn, and affirm the grant of summary judgment in favor of Grady, Young, Black, and Ayres.

1. The trial court erred by granting judgment on the pleadings against Brathwaite on her claim that Quinn tortiously interfered with her employment contract with Grady.

The grant of a motion for judgment on the pleadings pursuant to OCGA § 9–11–12(c) “is proper only where there is a complete failure to state a cause of action or defense.” Pressley v. Maxwell, 242 Ga. 360, 249 S.E.2d 49 (1978). When considering the motion, “all well-pleaded material allegations of the opposing party's pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” Id. (punctuation and citation omitted).

In support of the tortious interference claim in her amended complaint, Brathwaite alleged that, after Quinn was initially hired by Grady as coding manager in April 2008, she discovered allegations that Quinn had engaged in misconduct in her previous employment; that she reported the allegations to Quinn's supervisor and to Grady's “hotline” for complaints; that Quinn's supervisor reported the allegations to Grady's acting chief executive officer and to Ayres; that Grady conducted an investigation of the allegations; that as a result of her report of the allegations and the investigation, Quinn was forced to resign in June 2008; that after Quinn resigned from Grady, Quinn continued to be in frequent communication with Ayres; that during the period Quinn was not employed by Grady, “Quinn solicited and obtained the agreement of one or more co-defendants, including defendants Ayres and Young, to terminate [Quinn's former supervisor and Brathwaite], among others who had complained about Quinn;” that in September 2008, at the direction of Ayres and Black, Grady re-hired Quinn as coding manager; that shortly after Quinn was re-hired Grady terminated Quinn's former supervisor; that Quinn told others at Grady that she knew Brathwaite was the person who complained about her to the former supervisor; and that Quinn subsequently terminated her in February 2009 claiming that she failed a medical coding test and lacked a current coder certificationeven though she passed the test and was currently certified as a professional coder.

Taking these allegations as true, Brathwaite asserted that Quinn tortiously interfered with her employment contract with Grady while Quinn was acting (at least part of the time) as a third party or “stranger” to the contract. Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 608–609, 503 S.E.2d 278 (1998). The elements of a claim for tortious interference with contract are “the existence of a valid contract and that the defendant acted intentionally, without privilege or legal justification, to induce another not to enter into or continue a business relationship with the plaintiff, thereby causing the plaintiff financial injury.” Id. at 608, 503 S.E.2d 278. To establish that a defendant acted without privilege, the plaintiff must show that the defendant was a stranger to the contract or business relationship at issue. ASC Constr. Equip. USA, Inc. v. City Commercial Real Estate, Inc., 303 Ga.App. 309, 313, 693 S.E.2d 559 (2010). “[O]nly a stranger to both the contract at issue and the business relationship giving rise to and underpinning the contract may be liable for tortious interference.” Perry Golf Course Dev., LLC v. Housing Auth. of the City of Atlanta, 294 Ga.App. 387, 390, 670 S.E.2d 171 (2008) (punctuation and citation omitted); McLane, 269 Ga. at 608–610, 503 S.E.2d 278. As to an employment contract, “a defendant averred to have been acting in an official capacity is not a stranger to an employment contract ( Johnson v. Rogers, 214 Ga.App. 557(3), 448 S.E.2d 710 (1994)), and neither is an employee's supervisor. Hylton v. American Assn. for Vocational Instructional Materials, 214 Ga.App. 635, 448 S.E.2d 741 (1994).” McLane, 269 Ga. at 609, 503 S.E.2d 278;Dong v. Shepeard Community Blood Center, 240 Ga.App. 137, 138, 522 S.E.2d 720 (1999). Even in the context of at-will employment, the employee has a cause of action for tortious interference where “a party with no authority to discharge the employee, being activated by an unlawful scheme or purpose to injure and damage [the employee], maliciously and unlawfully persuades the employer to breach the contract with the employee.” Moore v. Barge, 210 Ga.App. 552, 553, 436 S.E.2d 746 (1993) (punctuation and citation omitted).

The trial court ruled that, because the amended complaint alleged that Quinn was Brathwaite's coding manager when Brathwaite was terminated from employment at Grady, Quinn was not a stranger to the contract and therefore cannot be liable for tortious interference with the contract. It is true that actions taken by Quinn while employed by Grady as Brathwaite's manager cannot support the tortious interference claim because, when Quinn took those actions, she was not a stranger to the employment contract. McLane, 269 Ga. at 609, 503 S.E.2d 278. But the amended complaint alleged that, while not employed by Grady, Quinn took actions to tortiously interfere with Brathwaite's employment contract with Grady by soliciting and obtaining an agreement with Ayres to terminate Brathwaite after Quinn was re-hired. These allegations concerned actions taken by Quinn when she was a stranger to the employment contract which Brathwaite contends were a proximate cause of her later termination. To the extent the complaint alleged that Quinn took tortious actions as a stranger to the employment contract that contributed to Brathwaite's subsequent termination, the complaint stated a cause of action against Quinn for tortious interference. The trial court erred by granting judgment on the pleadings on this cause of action.

2. The trial court correctly granted summary judgment against Brathwaite on her claim that Grady violated the whistle-blower statute at OCGA § 45–1–4.

Brathwaite claimed that her termination by Grady was employment retaliation in violation of OCGA § 45–1–4 after she blew the whistle on Quinn by complaining about her to a supervisor and to the Grady complaint “hotline.” The whistle-blower statute at OCGA § 45–1–4 protects a public employee from retaliation by a public employer after the employee complains to the employer about waste, fraud, or abuse relating to state programs and operations under the jurisdiction of the employer. Specifically, the statute provides:

No public employer shall retaliate 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.

[and]

No public employer shall 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)(2), (3).

A “law, rule, or regulation” is defined as “includ[ing] any federal, state, or local statute or ordinance or any rule or regulation adopted according to any federal, state, or local statute or ordinance.” OCGA § 45–1–4(a)(2). Even assuming that other elements of the whistle-blower claim were satisfied, the claim still failed because Brathwaite did not complain that there was a “violation of or noncompliance with” any law, rule or regulation as required by the statute, nor did she object to or refuse to participate in “any activity, policy, or practice of [Grady] that [she] has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation.”

The record shows that Brathwaite complained to a supervisor and to the Grady complaint “hotline” that she received a report that Quinn was terminated from a prior job for embezzlement or fraud, and that she was “concerned [Quinn] will embezzle...