Doss v. City of Savannah

• Decision Date: 28 March 2008
• Docket Number: No. A07A2133.,A07A2133.
• Citation: Doss v. City of Savannah, 660 S.E.2d 457, 290 Ga.App. 670 (Ga. App. 2008)
• Parties: DOSS v. CITY OF SAVANNAH et al.
• Court: Georgia Court of Appeals

290 Ga. App. 670

660 S.E.2d 457

290 Ga.App. 670

DOSS v. CITY OF SAVANNAH et al.

No. A07A2133.

Court of Appeals of Georgia.

March 28, 2008.

Denise D. VanLanduyt, for Appellant.

Oliver, Maner & Greay, Patricia T. Paul, Patrick T. O'Connor, Weiner, Shearouse, Weitz, Greenberg & Shawe, Malcolm Mackenzie,

III, Anthony R. Casella, James B. Blackburn, Savannah, for Appellee.

ADAMS, Judge.

Christa Doss appeals the trial court's grant of summary judgment in favor of the City of Savannah, the City of Savannah Police Department, Savannah Police Chief Daniel Flynn and Greg Capers on Doss's claims for due process violations, gender discrimination, sexual discrimination, defamation, breach of contract, and violations of "29 U.S.C. § 1983."

On appeal from the grant or denial of a motion for summary judgment, this Court reviews the record de novo, construing the evidence and the inferences drawn from it most strongly in favor of the nonmoving party. Harrison v. Daly, 268 Ga.App. 280, 281, 601 S.E.2d 771 (2004). Viewed in that light, the evidence shows that Doss was employed by the City of Savannah as an officer in the City's police department from 1991 until she was terminated in October 2002. When she was hired, Doss was given, and acknowledged receipt of, the Savannah Police Department Standard Operating Procedures Manual ("SOP"), which sets out policies and procedures for the department.

On October 9, 2002, Doss was involved in a automobile collision between her police car and another vehicle. The other vehicle had the right of way, and the collision was deemed to be Doss's fault. After the accident, Doss's supervisor, following standard protocol, took Doss for a urine drug test. The sample tested positive for a prescription barbituate medication, and the lab forwarded the results to Chris Wilburn, the City's Employee Assistance Program Coordinator.

Wilburn discussed this positive result with Doss. In response, Doss furnished a letter and a prescription dated December 23, 1999 for a drug, which could have caused this result. But Doss could not produce the bottle for this prescription. She told Wilburn that she put a lot of her old medicines in a bottle together. Wilburn concluded that Doss either took medicine for which she did not have a prescription or was irresponsible in taking medicine under a three-year old prescription that she "was no longer under physician care for." He concluded that either of these actions would constitute a violation of the City's Drug Policy. Wilburn put his conclusions into an e-mail, which he sent to Captain Ben Herron of the police department.

After Police Chief Flynn learned of the situation, he conferred with Wilburn, reviewed the SOP and discussed the City's drug policy with City Human Resources Director Beth Robinson. Flynn ultimately concluded that there was "a bona fide violation of the policy," and that the policy was "more restrictive for police employees than for other city employees." As a result, he decided to terminate Flynn's employment.

On October 17, 2002, Doss received a written Suspension Prior to Dismissal Notice from Flynn, listing as the cause "Violation of City/Dept policy," specifically "HR-017 (Alcohol and Chemical Use Policy)." Doss appealed, and was given a pre-termination hearing. City Manager Michael Brown, Flynn, and Robinson attended the hearing with Doss. At the hearing, Doss received a copy of a memo from Herron detailing the accident and subsequent incidents. She was given the opportunity to respond to the memo and to state any disagreement she had with Herron's version of events. Brown told her that he believed that she exhibited poor judgment in mixing her medications. Doss told Brown that she agreed that she had used poor judgment in some respects, but did not believe that it warranted termination. She asked Brown some questions about the chain of custody on the urine used for her positive test and requested that he investigate these matters. Brown adjourned the meeting and asked Wilburn and Robinson to review the procedures used for Doss's test to make sure everything was correct. Subsequently, Brown decided to uphold Flynn's recommendation of termination, and wrote Doss a letter informing her of this decision and of her right to pursue an appeal with the Civil Service Board. She did not appeal her termination to the Board.

Doss, however, filed for unemployment with the Georgia Department of Labor, which provided her a notice saying that "available facts" showed that she did not violate her employer's drug-free workplace policy and thus was eligible to receive benefits. In addition, she filed a charge with the EEOC, asserting sexual discrimination and sexual harassment by defendant Capers, who at one time was her superior, and others. The EEOC ultimately issued her a right to sue.¹ Doss subsequently filed this suit and on appeal argues error in the trial court's order of summary judgment on her claims.

In order to prevail on their motion for summary judgment, the defendants were required to show the absence of any genuine issue of material fact entitling them to judgment as a matter of law. "A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case." (Footnote omitted.) Wallace v. Wal-Mart Stores, 272 Ga.App. 343, 612 S.E.2d 528 (2005). Once the defendant does so, "the burden shifts to the nonmoving party to point out specific evidence giving rise to a triable issue." (Footnote omitted.) Norby v. Heritage Bank, 284 Ga.App. 360, 361, 644 S.E.2d 185 (2007).

1. Doss first asserts that the trial court erred in granting summary judgment on her claim that she was deprived of her right to employment without due process of law under Count 1. She asserts that as a public employee she has a property interest in her job and can only be dismissed for cause citing Maxwell v. Mayor, etc. of Savannah, 226 Ga.App. 705, 707(1), 487 S.E.2d 478 (1997). See also Camden County v. Haddock, 271 Ga. 664, 665(1), 523 S.E.2d 291 (1999) (discussing due process claim under the state constitution). In Maxwell, this Court noted that "[u]nder Georgia law a public employee has a property interest in her job whenever she may only be dismissed for cause." (Citation and punctuation omitted.) 226 Ga.App. at 707(1), 487 S.E.2d 478. There, the only evidence demonstrated that the plaintiff, a City of Savannah police officer, could be dismissed for "good cause," and no evidence was presented that the plaintiff was an employee at will. Id. The trial court found that this evidence was sufficient to withstand summary judgment on the issue of whether the plaintiff had a property interest in his employment, although the Court ultimately determined that no due process liability existed. Id.

The evidence in this case demonstrates that the City's Employee Handbook,² revised after the Maxwell decision, now clearly states that it does not "constitute an expressed or implied contract." It further notes that a city employee "may separate from his/her employment at any time; the City of Savannah reserves the right to do the same." This is a clear statement of an at will employment relationship. See Wilson v. City of Sardis, 264 Ga.App. 178, 179(1), 590 S.E.2d 383 (2003).

Doss argues that portions of the SOP setting out procedures to be followed for disciplinary matters created a requirement that she could only be terminated for cause, and notes that the City followed these procedures to find a ground to support her termination.³ She argues that the SOP was the only policy that governed her termination, noting that Flynn replied in the negative when he was asked, "Did you look to at the time of Chris Doss's accident any other policy other than the SOP policy regarding drug and alcohol abuse?" But this question arose in the context of other questions regarding Flynn's conversations with Wilburn about the positive drug test. We note that Flynn also testified that he contacted City Human Resources Director Robinson to discuss "the City's policy with regard to employees who are impaired by alcohol or chemicals." It is clear that he considered the City policy in deciding to recommend Doss's termination because he concluded that it imposed a higher standard on police personnel, than on other City employees. And Doss's notice of suspension pending termination specifically cites a City human resources policy, not the SOP. Thus, the record demonstrates that Doss was subjected to the same policies as any other City employee, including the notice in the City Handbook that her employment is terminable at will.

Nevertheless, construing the evidence in the light most favorable to Doss, we find that an issue of fact exists as to whether the SOP provided Doss with a property interest in her employment. This Court previously found that the existence of similar disciplinary policies, along with evidence that the policy referred to termination for "just cause," and testimony that the parties understood that cause was required for termination constituted "some evidence" of a property right to employment. DeClue v. City of Clayton, 246 Ga.App. 487, 489, 540 S.E.2d 675 (2000). The Court found that this evidence, when considered in conjunction with the Clayton city employee manual providing that employment with the city was terminable at will, prevented a finding as a matter of law that the plaintiff had a property right in her employment. Id. at 490, 540 S.E.2d 675. Conversely, we find that the SOP and other city policies as applied in this case prevent a finding as a matter of law that Doss's employment was terminable at will.

But even assuming a property right, we find that the trial court properly granted summary judgment to the defendants. As there is no evidence or allegation that Capers had any involvement in...