Coward v. MCG Health, Inc.

• Decision Date: 27 June 2017
• Docket Number: A17A0295
• Citation: 802 S.E.2d 396
• Parties: COWARD et al. v. MCG HEALTH, INC.
• Court: Georgia Court of Appeals

342 Ga.App. 316

802 S.E.2d 396

COWARD et al.

v.MCG HEALTH, INC.

A17A0295

Court of Appeals of Georgia.

June 27, 2017

John Michael Brown, for Appellants.

Alyssa Karynn Peters, Frank L. Butler III, Jeffery Lyn Thompson, Macon, for Appellee.

Miller, Presiding Judge.

Catherine Coward and Mary Bargeron (collectively "Plaintiffs") sued MCG Health, Inc., alleging that MCG Health terminated their employment in violation of Georgia's Whistleblower Statute, OCGA § 45–1–4. The trial court granted summary judgment to MCG Health, and Plaintiffs now appeal, contending, inter alia, that they each established a prima facie case of retaliation under OCGA § 45–1–4 ; that MCG Health's true reasons for terminating their employment were discriminatory; and that the reasons articulated by MCG Health for their termination were pretextual.¹ After a thorough review of the record, we conclude that the Plaintiffs failed to show this Court that their complaints triggered the protections afforded by the Georgia Whistleblower Statute. Therefore, neither Coward nor Bargeron established that she engaged in a protected activity for purposes of establishing a prima facie case under OCGA § 45–1–4, and we must affirm the grant of summary judgment to MCG Health.

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. 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.

(Citation and footnote omitted.) Caldon v. Bd. of Regents of the Univ. System of Ga. , 311 Ga.App. 155, 715 S.E.2d 487 (2011) ; see also Tuohy v. City of Atlanta , 331 Ga.App. 846, 771 S.E.2d 501 (2015).

So viewed, the record shows that Plaintiffs are registered nurses. Coward began working for MCG Health in 2001 and was trained as a charge nurse.² Bargeron began working for MCG Health in 2004 as a Senior Staff R.N. and also worked as a charge nurse. Initially, Plaintiffs were assigned to the child and adolescent psychiatric unit, and they occasionally worked in the adult psychiatric unit (hereinafter the "Adult Unit").

In August 2009, Plaintiffs were reassigned to work in the Adult Unit on a regular basis. On September 11, 2009, Coward was assigned to work as the charge nurse for the 3:00 p. m. to 11:00 p. m. shift in the Adult Unit. Although Coward had been the charge nurse in the Adult Unit before, including the prior day, she asked another nurse to take her place as charge nurse for that shift. Coward did not report the change in assignments to any manager at MCG Health or to the unit clerk who provided administrative support for the Adult Unit. This was the first time Coward had changed her charge nurse assignment since her transfer to the Adult Unit.

On the evening of September 15, 2009, Coward was working in the Adult Unit when a patient in that ward attempted suicide. Coward's supervisor came in that night and took statements from the staff, including Coward. Coward told her supervisor that she believed that the attempted suicide resulted from short-staffing in the Adult Unit. One week later, MCG Health terminated Coward's employment for refusing to perform her assigned duties as charge nurse on September 11, 2009.

On May 31, 2010, Bargeron was assigned to work as the charge nurse in the Adult Unit. The unit was busy, and there was no unit clerk when Bargeron arrived for her shift at 3:00 p. m. Bargeron twice called her manager to report that the unit was understaffed, and Bargeron's manager told her both times to obtain the necessary official status report³ from the prior shift's charge nurse so as to transition between the two shifts. During the second phone call,

Bargeron informed her manager that she had not obtained a status report from the prior shift's charge nurse,⁴ and Bargeron refused to go forward with her staffing assignment. The supervisor instructed Bargeron to go home, and, a few days later, MCG Health terminated Bargeron's employment for refusing her May 31 assigned shift.

Plaintiffs subsequently filed suit against MCG Health, alleging that it retaliated against them for speaking out about the understaffing and terminated their employment in violation of OCGA § 45–1–4 (hereinafter the "Whistleblower Statute").⁵ Following discovery in this case, MCG Health moved for summary judgment, arguing that Plaintiffs failed to establish a prima facie case of retaliation. MCG Health further argued that it had legitimate, non-discriminatory reasons for terminating Plaintiffs' employment and that Plaintiffs could not show that the reasons for their termination were pretextual. The trial court granted summary judgment to MCG Health, and this appeal ensued.

1. On appeal, Plaintiffs contend that the trial court erred in granting summary judgment to MCG Health. We disagree.

The Whistleblower Statute, 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.

(Punctuation and footnotes omitted.) Caldon , supra, 311 Ga.App. at 158, 715 S.E.2d 487. Our appellate courts have repeatedly explained that

[i]n construing a statute, this [C]ourt applies fundamental rules of statutory construction [that] require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to look diligently for the intention of

the General Assembly. Where the plain language of a statute is clear and susceptible of only one reasonable construction, we must construe the statute according to its terms.

(Citation omitted.) Lue v. Eady , 297 Ga. 321, 332 (3) (b), 773 S.E.2d 679 (2015).

In the context of evaluating whether a state whistleblower claim is subject to summary adjudication, this Court utilizes the McDonnell Douglas burden-shifting analysis used in Title VII retaliation cases. Tuohy , supra, 331 Ga.App. at 848–849 (1), 771 S.E.2d 501 ; see McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802–806, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Under the McDonnell Douglas framework, the plaintiff must first make a prima facie case of retaliation. If the plaintiff makes a prima facie case, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employment decision. If the employer successfully meets this burden of production, then the burden shifts back to the plaintiff to show that each proffered reason was pretext.

(Citations omitted.) Tuohy , supra, 331 Ga.App. at 849–850 (1), 771 S.E.2d 501.

On appeal, Plaintiffs specifically argue that they satisfied the prima facie case because (i) MCG Health was a public employer; (ii) they engaged in protected activities when they complained about staffing issues; and (iii) they were terminated as a result of their conduct.

To establish a prima facie case of retaliation under the Whistleblower Statute,

a public employee must demonstrate that (1) [she] was employed by a public employer; (2) [she] made a protected disclosure or objection; (3) [she] suffered an adverse employment action; and (4) there is some causal relationship between the protected activity and the adverse employment action.

(Footnote omitted). Albers v. Ga. Bd. of Regents of the Univ. System of Ga. , 330 Ga.App. 58, 61 (1), 766 S.E.2d 520 (2014) ; see also Forrester v. Ga. Dept. of Human Svcs. , 308 Ga.App. 716, 722 (1) (a), 708 S.E.2d 660 (2011) (physical precedent only).

Addressing the second prong of the prima facie case,⁶ the plain language of the Whistleblower Statute required Coward and Bargeron to show that they either (1) disclosed a violation of or noncompliance with a law, rule, or regulation to a supervisor⁷ or (2) objected to or refused to participate in an activity, policy, or practice that they reasonably believed to be in violation of or noncompliance with a law, rule, or regulation. See OCGA § 45–1–4 (d) (2), (3). Under the Whistleblower Statute, a law, rule, or regulation "includes 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).

(a) Whether Coward made a protected disclosure or objection.

Coward complained to her supervisor that the Adult Unit was short-staffed after a patient attempted suicide, which Coward attributed to an insufficient nurse-to-patient ratio. Coward also told her supervisor that she thought that short-staffing was affecting patient care and was a "chronic problem." In making these complaints, Coward identified only internal operating procedures for staffing requirements as the basis for her concerns. Indeed, she admitted in her deposition that she never identified to her supervisor that the understaffing violated any law, rule, or regulation. Complaints arising under internal policies are not, however, the type of protected activity the Whistleblower Statute was intended to protect. Edmonds v. Bd. of Regents of the Univ. System of Ga. , 302 Ga.App. 1, 6–7 (1), 689 S.E.2d 352 (2009) (a safety concern arising under an internal policy is not a law, rule, or regulation under the statute), disapproved in part on other grounds, Wolfe v. Bd. of Regents of the Univ. System of Ga. , 300 Ga. 223, 232 (2) (d), n. 5, 794 S.E.2d 85 (2016).

Construed in Coward's favor, her own testimony, and the record as a whole, show that, prior to her termination, Coward failed to engage in any activity that would have triggered protection under the Whistleblower Statute. Moreover, no evidence showed that she objected to or refused to...