Caldon v. Bd. of Regents of The Univ. System of Ga.., A11A0382.
| Decision Date | 13 July 2011 |
| Docket Number | No. A11A0382.,A11A0382. |
| Citation | 11 FCDR 2379,272 Ed. Law Rep. 664,715 S.E.2d 487,311 Ga.App. 155 |
| Parties | CALDONv.BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Moorman & Peischel, Christopher G. Moorman, Atlanta, for appellant.Thurbert E. Baker, Atty. Gen., Laura W. McDonald, Kathleen T. Gosden, Asst. Attys. Gen., for appellee.DOYLE, Judge.
Elizabeth Denise Caldon, formerly employed at Macon State College, appeals from the trial court's grant of summary judgment to the Board of Regents of the University System of Georgia (“the Board”) as to Caldon's claim that she was unlawfully discharged in violation of the Georgia Whistleblower Act, OCGA § 45–1–4. For the reasons that follow, we affirm.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. 1
Viewed in this light, the record shows that Caldon worked as an administrative assistant in the office of the President of Macon State College from 1993 until 1997 and worked directly for President David A. Bell from 1997 to 2008. In addition to other duties, Caldon prepared Bell's monthly leave reports,2 which Bell later reviewed and signed. Caldon deposed that in 2006 she began discussing with Bell her concerns that he was under-reporting his use of leave. In July 2008, the Board issued a publication discussing leave reports, and Caldon expressed to Bell that she understood the Board policies to require him to account for more leave taken in his reports than he included. Caldon deposed that Bell's under-reporting of leave time for July 2008 was so egregious that she declined to complete his leave form for August 2008. On September 15, 2008, Caldon attached a note to Bell's August 2008 leave form, stating “With your medical and personal leaves, and the stricter auditing guidelines, I feel it more appropriate for you to complete your personal leave reports”; Bell recalled receiving the note and that Caldon had objections to his leave reports. In support of her claim that she was engaged in whistleblowing activity, Caldon pointed to Bell's leave reports from the months before and after her termination, which show that Bell reported a greater amount of leave after her September 15 note.
In addition to leave reporting, Caldon deposed that she engaged in other activity, which she contended should be considered whistleblowing activity, including: (1) reporting in July 2008 a conflict of interest between Bell and his personal financial advisor, Jimmy Patton, who as the chair of the Macon State College Foundation was in a position to vote on Bell's compensation, which report led to Patton's recusal from Foundation business related to Bell's compensation; (2) as late as August 28, 2008, reporting Bell's practice of registering for but not attending various professional functions, which were paid for using state money; and (3) voicing concerns related to Bell's mental ability to handle his job responsibilities to Vice President Levy Youmans, who in August 2007, asked Caldon to limit Bell's participation in meetings.
Although Bell gave Caldon good ratings on annual performance reviews through 2008, Bell received complaints about Caldon's interactions with him and others, including from Youmans, Vice President Barbara Frizzell, and former Chief of Staff Larry Stinson.
In June 2008, John Cole replaced the retiring Stinson, and Cole deposed that on September 23, he advised Bell to terminate Caldon after learning that she verbally reproached Bell in front of other employees. Nevertheless, Bell decided to give Caldon “the benefit of the doubt.”
On September 24, 2008, Caldon was involved in another verbal exchange with Bell in which she discussed Bell's handling of a personal family matter between him and his son, Thomas. Caldon deposed that Thomas called, and while she was on the phone with him, Bell approached her. Caldon deposed that Bell stated, and laughed. Caldon deposed that because she feared Thomas had overheard Bell's statement, her response was, ; she denied that she raised her voice to Bell. Letitia Langley, a secretary in the office, deposed that she heard Caldon say to Bell, “I will not tolerate that” and “[h]e is your son,” and Langley was shocked that Caldon made such statements to Bell. Cole was also present and overheard the exchange and considered Caldon to be “yell[ing] at” and “berating” Bell. Caldon later sent an e-mail to Cole, which said:
My apologies for my remarks a few moments ago, but you have no idea of the behavior that I have witnessed for years by Dr. Bell towards his own son (and so many others that I will not discuss). Dr. Bell's own wife has refused to even see him—or allow him in their home—since 2006 (according to Thomas).
He is right— this is none of my business. However, his son has called me at home in tears more times than I can remember. As a Christian, I have to accept his calls and simply listen. That is all that I do—listen.
Thomas simply wanted to give his Father a message this morning about a prostate doctor's appointment— nothing more—and Dr. Bell's “smirk” and total indifference simply caught me off guard. I should be used to it by now; however, it is hard to leave my Christian values at the door when I enter my office each morning (as Dr. Bell has demanded in so many words for years).
The only thing I know to do now is to continue praying for him and his family.3
Thereafter, while Cole and Bell were in Bell's office, Cole counseled Bell to terminate Caldon, explaining that it was inappropriate for Caldon to speak to Bell in that manner and that it affected his office and the college. Bell agreed with Cole, and the two discussed Caldon's termination. Bell spoke to Youmans and Frizzell on the afternoon of September 24 to explain his decision to terminate Caldon and confirm their agreement with the decision. Bell offered to allow Caldon to resign her position or be terminated; Caldon initially chose to resign, but subsequently withdrew her resignation and filed for a review of her termination.4
Thereafter, Caldon filed suit alleging that the Board had violated the Georgia Whistleblower Act by terminating her employment. The Board moved for summary judgment, contending that Caldon had failed to meet her burden of establishing a prima facie case of retaliation. The trial court agreed with the Board, finding that the undisputed facts established that Caldon engaged in insubordinate behavior toward her supervisor, which she admitted, and was fired immediately thereafter. Based on that fact, the trial court concluded that no jury issue existed on the question of whether Caldon was fired for a retaliatory purpose.
Caldon contends that the trial court erred by granting summary judgment to the Board with regard to her whistleblower claim because there were disputed issues of material fact regarding the reason Bell fired Caldon and that Bell's motivation for Caldon's termination is a jury question. We disagree.
OCGA § 45–1–4 prohibits public employers from (1) retaliating “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”; or (2) retaliating “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.” 5 “The statute gives public employees the right to bring an action in superior court to have the retaliatory action set aside.” 6 The statute “applies to the receipt by a public employer from any public employee of complaints or information concerning the possible existence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer,” 7 and it is...
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