Forrester v. Ga. Dep't of Human Serv..
| Decision Date | 24 March 2011 |
| Docket Number | No. A10A1992.,A10A1992. |
| Citation | 308 Ga.App. 716,708 S.E.2d 660 |
| Parties | FORRESTER et al.v.GEORGIA DEPARTMENT OF HUMAN SERVICES. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Fox, Chandler, Homans, Hicks & McKinnon, David A. Fox, Sidney O. Smith III, Gainesville, for appellants.Thurbert E. Baker, Attorney General, Annette M. Cowart, Senior Assistant Attorney General, Romy D. Smith, Assistant Attorney General, for appellee.DILLARD, Judge.
Tonya Forrester, Phyllis Charnley, and Stefanie Phillips brought suit against the Georgia Department of Human Services (“DHS”) following their termination from the Dawson County Department of Family and Children Services (“DFCS”), claiming that they were dismissed for reporting the unlawful conduct of another employee in violation of Georgia's whistle-blower statute.1 DHS was granted summary judgment on these claims, which Forrester, Charnley, and Phillips now appeal. For the reasons noted infra, we affirm the trial court's grant of summary judgment in favor of DHS.
Viewed in the light most favorable to the nonmovant appellants,2 the record shows that Forrester, Charnley, and Phillips (collectively “appellants”) were employees at Dawson County DFCS, and that Forrester supervised Charnley and Phillips. During their tenure with DFCS, the appellants became friends, and Forrester even vacationed with Charnley on one occasion. This otherwise positive work environment, however, was hampered by the troubling behavior of Forrester's co-supervisor, Samantha Delong.
Delong was a longtime employee of DFCS who, for one reason or another, was chronically absent from the office. Beginning in 2005, Forrester complained to Dawson County DFCS Director Amanda Morgan about Delong's many absences, “venting [her] frustrations” about having to do the job of two people and speculating that Delong was someone who “doctor shopped” for prescription pain medication. And when Morgan left to become a DFCS regional director in 2006, Forrester approached the new director of Dawson DFCS, Dorothy Gore, about Delong's chronic absenteeism and alleged “doctor shopping” for pain medication. After Gore left Dawson DFCS in 2007 (after being placed on administrative leave during the investigation discussed infra), Jill Rice became the interim director. And while a new interim director provided Forrester with yet another opportunity to vent about Delong, Forrester claims that she never had a “formal” conversation with Rice about Delong because, according to Forrester, Rice was already well aware of Delong's problems (having previously supervised Delong in another county). Nevertheless, in June 2007, Forrester did contact Rice to inform her that (1) Delong was intoxicated at work; (2) the employees were concerned she might drive while impaired; and (3) on the few occasions when Delong did come to work, she generally did so while under the influence of prescription drugs. In response to Forrester's concerns, Rice took action against Delong by personally keeping up with her use of leave and, eventually, depleting it when necessary. But the revolving door continued at Dawson, and in October 2007, Rice left the office and John Wilson became the next interim director. In Forrester's own words, she thereafter began “venting” to Wilson about Delong's disturbing conduct. And throughout this entire time period, while Forrester was complaining to her superiors, Charnley and Phillips were making similar complaints to her about Delong's on-the-job actions/inactions.
In the early summer of 2007, while appellants were raising their concerns about Delong, allegations arose that then-Dawson Director Gore forced DFCS clients to use a friend's counseling service, which then triggered an investigation by the Office of Investigative Services (“OIS”).3 Judy Blackwell was assigned to handle the Gore investigation by OIS, and during the course of this investigation she was advised of issues that certain employees had with Delong, Forrester, Charnley, and Phillips.4 Specifically, these employees accused the appellants of, inter alia, not working the required number of hours; getting their hair done and going tanning during work hours without taking leave; taking overly long lunches and arriving late without reflecting same on their time sheets; and not making required home visits. In response to these complaints, Blackwell outlined the employees' concerns in a letter to the main DFCS director.
In what was a routine practice when employee misconduct is alleged, DFCS management requested that OIS investigate Delong and the appellants after examining Blackwell's letter. Blackwell was thereafter assigned this investigation in September 2007 and was directed to further look into the allegations of abused leave time by Delong and the appellants.5 Blackwell's investigation began on October 1, 2007, and she advised Delong and the appellants shortly thereafter that she was looking into an alleged misuse of funds and abuse of the agency's leave policy.
Throughout the course of Blackwell's investigation, the three employees who had expressed their concerns to Blackwell maintained logs of Delong and appellants' activities at work, including the time of their arrival and departure, which the employees then provided to Blackwell. One of these employees was Don Hamil. Hamil, like Charnley and Phillips, was supervised by Forrester, and he became suspicious of Delong and the appellants after inadvertently stumbling upon some of their time sheets on Forrester's office floor, examining them, and realizing that the time reflected on those sheets was inaccurate. Hamil thereafter began documenting appellants' various and sundry workplace activities, noting instances when they (1) scheduled lengthy hair appointments during office hours; (2) told co-workers they were going shopping but then indicated on a sign-out board that they were on a DFCS-related errand; (3) played games on a work computer; and (4) clipped coupons during work hours (on one occasion) for over an hour. Thereafter, Blackwell substantiated these claims by comparing Hamil's logs to appellants' time sheets.
Meanwhile, shortly after the start of Blackwell's investigation, Wilson (as noted supra) became the interim director of Bawson County DFCS. Forrester approached Wilson in October 2007, and the two discussed Delong's misuse of leave, as well as her erratic, strange behavior. The appellants also spoke to members of the Bawson County Sheriff's Office regarding their concerns about Delong's prescription drug use and that she might drive while under the influence of those drugs, and then informed Wilson that they had made this disclosure. Throughout this entire time period, Wilson relayed the appellants' and his own concerns about Delong to upper management in DFCS.
In January 2008, Blackwell completed her investigation of Delong and the appellants, submitting the original version of the report to her supervisor. The final version was then signed in February 2008, and thereafter made its way up through the chain of command. When a DFCS field operations director eventually received the OIS report, she was “shocked” by the falsification of time sheets and abuse of leave by Delong and the appellants. And based upon Blackwell's investigation, the field operations director decided it was appropriate to terminate all of them. The field operations director's decision and subsequent recommendation of termination was based exclusively on the OIS report, and she was completely unaware of any reports by the appellants regarding their concerns with Delong. A DFCS employee relations analyst then agreed with the recommendation to terminate Delong and the appellants based on the serious misconduct outlined in the OIS report.6
Accordingly, Forrester was terminated because she (1) signed off on falsified time sheets, (2) took long lunches, (3) conducted personal errands during those long lunches, (4) went tanning during work hours, and (5) spent most of one workday at a hair appointment. Charnley was terminated for falsifying her time sheets, and Phillips was terminated for falsifying her time sheets and downloading and playing a game on her computer during work hours.7
Thereafter, the appellants filed suit under OCGA § 45–1–4, claiming that they were terminated in retaliation for making protected disclosures regarding Delong's unlawful workplace activity. They also contended that their time sheets accurately reflected a 40–hour work week, and that on the occasions when they spent time out of the office, they did so using “flex time” that DFCS employees were encouraged (if not mandated) to take—due to budget constraints—in order to avoid working overtime and receiving compensatory time (also known as “comp time”), for which DFCS was required to pay employees time-and-a-half. According to the appellants, this was a common practice at their office, and they were merely doing what they could to avoid the accrual of comp time. Thus, while the appellants admit that they did not accurately reflect the use of flex time on their time sheets, they claim that Forrester knew when Charnley and Phillips worked late and that she verbally approved their use of this time.8
DHS then moved for summary judgment, which the trial court granted because, in its view, the appellants failed to present evidence of retaliation. In its order, the trial court also briefly acknowledged the appellants' pending motion for the qualification of an expert witness, which the court likewise denied, and in doing so noted that the proposed expert-witness testimony would not have changed its decision. Forrester, Charnley, and Phillips now appeal the grant of summary judgment for DHS, as well as the trial court's refusal to consider qualifying their expert witness.
1. Appellants first contend that the trial court erred in granting summary judgment for DHS because there are genuine issues of material fact for a jury to resolve and this grant of summary...
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