Forney v. Purvis

• Decision Date: 13 January 1989
• Citation: 190 Ga.App. 192,378 S.E.2d 470
• Parties: FORNEY et al. v. PURVIS. 77217.
• Court: Georgia Court of Appeals

Page 470

378 S.E.2d 470

190 Ga.App. 192

FORNEY et al. v. PURVIS.

77217.

Court of Appeals of Georgia.

Jan. 13, 1989.

Rehearing Denied Feb. 7, 1989.

Michael J. Bowers, Atty. Gen., Marion O. Gordon, First Asst. Atty. Gen., Wayne P. Yancey, Sr. Asst. Atty. Gen., Rita J. Llop, Asst. Atty. Gen., for appellants.

Harold D. Corlew, Walbert & Hermann, Paul D. Hermann, David H. Bedingfield, Atlanta, for appellee.

POPE, Judge.

In January 1986, plaintiff and over one hundred other employees of Outboard Motor Corporation of Calhoun, Georgia, were laid off after they staged a labor strike. Plaintiff and all other laid-off employees were members of a labor union. Shortly after they were laid off work, the employees discontinued the strike and became eligible for unemployment insurance benefits. To facilitate the registration process of the large number of applicants, the Calhoun office of the Georgia Department of Labor (hereinafter referred to as "DOL") scheduled a mass claims registration assembly at the Armory in Calhoun on January 24, 1986. The former striking employees completed the necessary forms for filing a claim for unemployment benefits.

Many of the claimants also completed DOL Form 511, a form used in registering for the employment services of the DOL, a service which refers registrants to potential job openings. In order to be registered on the computer for employment services, an applicant must not only file Form 511 but must also obtain a personal interview by a member of the DOL staff. Because the purpose of the mass claims registration at the Armory was to register the applicants for unemployment benefits, the personal interviews necessary for registering for employment services were not conducted. It is disputed whether the applicants were informed of the necessity of reporting to the DOL office for an interview. The 511 forms turned in by these applicants were kept in a stack on the desk of one of the DOL staff members with the expectation that registration for employment services would be completed at such time as the applicant visited the DOL office.

To receive unemployment benefits, a claimant must show he is actively seeking work (OCGA § 34-8-151(a)(3)) and that he has "registered for work" at an employment service office (OCGA § 34-8-151(a)(1)). Those making their claims through local offices of the DOL, referred to internally as "satellite" offices, are automatically sent a computerized Form 854 letter with their first benefit check. The letter informs the claimant that in order to continue to receive benefits, he or she must register in person for job referrals through the employment services of the DOL. According to evidence presented by appellants, individuals making their claims through those offices, referred to internally by the DOL as "itinerant" offices, are not sent the Form 854 letter because these claimants may live too far from an office offering employment services to require them to register in person. Prior to July 1985, the Calhoun office of the DOL was operated as an itinerant office. In July 1985, the Calhoun office was to have become a satellite office with its own connection to the central computer of the DOL headquarters in Atlanta. At the time of the change, because of administrative oversight, the central computer was not programmed to send Form 854 letters to unemployment benefits claimants filing through the Calhoun office. Consequently, neither the former striking employees of Outboard Motor Corporation nor any other claimants through the Calhoun office were notified by letter of the necessity for registering for employment services in person.

The record reflects that plaintiff completed a Form 511 when she registered for unemployment benefits at the Armory on January 24, 1986. Plaintiff made repeated visits to the Calhoun DOL office between February and June 10, 1986, to inquire about her unemployment benefits and to ask whether jobs were available. On each occasion, plaintiff was told that no jobs were available. The record also reflects that fifty-two former striking employees completed their registration for employment services between January and June 1986, but only thirty-three job referrals were extended to these employees during that period. We note that twenty-eight of these referrals were made in May and June, after a union official had written a letter to the DOL complaining of alleged unfair treatment of the former striking employees. Defendant Gladys Johnson, an internal investigator for DOL, conducted an investigation and concluded that 210 jobs were available through employment services from January through June for which some or all of the striking employees would have been qualified for referral.

When plaintiff visited the DOL office on June 10, 1986, to inquire about employment, an employee of DOL discovered she was not on the computerized job referral list. Plaintiff completed a second Form 511 and was properly registered for job referrals. After June 10, plaintiff was referred to several job interviews but plaintiff claims she has been denied referral to other better paying jobs which she believes have been referred to others through DOL. Plaintiff's complaint, as amended, was brought against four employees of the DOL and alleges the defendants negligently or alternatively, intentionally, deprived her of her rights guaranteed by the First and Fourteenth Amendments of the United States Constitution. Essentially, plaintiff claims that defendants discriminated against her because of her affiliation with a labor union and that defendants are liable for violating her civil rights pursuant to 42 USC § 1983. Defendants appeal the trial court's denial of their motion for summary judgment.

1. Defendants first argue that they are entitled to "judgment on the pleadings" because the plaintiff's complaint does not state a cognizable claim under 42 USC § 1983. In fact, defendants did not file a motion for judgment on the pleadings but filed a motion for summary judgment, which was denied. We affirm.

Plaintiff alleges that from January to June 1986, defendant Bobby Cochran (senior employee of the Calhoun office of the DOL) improperly refused to refer her to job opportunities through the DOL's employment services because of her affiliation with a labor union. In June she was finally placed on the job service listing and was referred to several jobs. However, plaintiff further alleges that from June 1986 to the time of her amended complaint, she was improperly denied referral to better paying jobs for which she was qualified. Plaintiff alleges the remaining defendants, who are also employees of the DOL and are Cochran's superiors, were made aware of defendant Cochran's alleged illegal conduct but refused to stop him and, instead, aided in the furtherance of said conduct. Discrimination against members of a labor organization is actionable pursuant to 42 USC § 1983. Thomas v. Younglove, 545 F.2d 1171 (9th Cir.1976); Orr v. Thorpe, 427 F.2d 1129 (5th Cir.1970). Thus, to prevail on a motion for summary judgment, defendants must present uncontroverted evidence sufficient to pierce plaintiff's allegations. See Ringer v. Lockhart, 240 Ga. 82, 239 S.E.2d 349 (1977). This defendants have failed to do.

Defendants presented evidence that, due to inadvertent error, the computers serving the Calhoun office were not programmed to send the Form 854 letter to any applicants for employment benefits. Thus, defendants argue plaintiff was not discriminated against because of her union affiliation but was treated exactly as any other applicant to the Calhoun office. "Inadvertent errors, honest mistakes, agency confusion, even negligence in the performance of official duties, do not warrant redress under [42 USC § 1983]." Silverman v. Barry, 845 F.2d 1072, 1080 (D.C.Cir.1988). However, the failure to inform plaintiff of the necessity of registering for employment services is not the gist of plaintiff's complaint.

According to defendant Cochran, the written applications for employment services filled out by the former striking employees at the Armory were kept together in a stack on the desk of one of the DOL...