Franklin v. Pitts
Decision Date | 15 March 2019 |
Docket Number | A18A1724 |
Citation | 826 S.E.2d 427,349 Ga.App. 544 |
Parties | FRANKLIN v. PITTS. |
Court | Georgia Court of Appeals |
Torin D. Togut, Norcross, for Appellant.
Parsa Fattahi, Dominique Annida Martinez, Atlanta, Kaye Woodard Burwell, for Appellee.
In the second appearance of these parties before this Court, Dedrain Franklin appeals from the trial court’s order granting summary judgment in favor of Robert Pitts ("the County"), whom Franklin sued in his official capacity as chairman of the Fulton County Board of Commissioners. In five enumerations of error, Franklin asserts that the trial court erred by failing to find that genuine issues of fact existed with regard to various elements of her claims against the County under the Georgia Whistleblower Act, OCGA § 45-1-4. For the reasons explained below, we find that Franklin cannot establish a genuine issue of material fact with regard to essential elements of her whistleblower claim — adverse employment action and pretext.
"On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party." (Citation and punctuation omitted.) Seki v. Groupon, Inc. , 333 Ga. App. 319, 775 S.E.2d 776 (2015). The majority of the relevant facts were delineated in our previous opinion, addressing a statute of limitation issue, as follows:
Franklin v. Eaves , 337 Ga. App. 292, 787 S.E.2d 265 (2016) ( Franklin I ).
After this Court reversed the trial court’s grant of summary judgment based upon the expiration of the statute of limitation, Franklin I , 337 Ga. App. at 299-300 (2), 787 S.E.2d 265, the trial court afforded Franklin additional time for discovery before ruling on the County’s motion for summary judgment. In its order, the trial court concluded that Franklin failed to establish a genuine issue of material fact with regard to disclosure of a violation of or noncompliance with HIPAA or a causal link between her alleged protected activity and any adverse employment action. It also concluded that other than her denied promotions, she could not establish that she suffered an adverse employment action, and that with regard to these denied promotions she did not meet her burden of presenting proof to challenge the legitimate, non-retaliatory reason for her failure to receive the promotions.
The Georgia Whistleblower Act precludes a public employer from 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 "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." OCGA § 45-1-4 (d) (2) and (3). Prohibited retaliation includes:
the discharge, suspension, or demotion by a public employer of a public employee or any other adverse employment action taken by a public employer against a public employee in the terms or conditions of employment for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency.
OCGA § 45-1-4 (a) (5).
(Citation, punctuation and footnote omitted.) Harris v. City of Atlanta , 345 Ga. App. 375, 377, 813 S.E.2d 420 (2018).
On appeal, Franklin contends that the trial court erred by requiring her to prove an actual violation of HIPAA as opposed to reasonable cause to believe that Fulton County violated or failed to comply with HIPAA or Fulton County regulations. See OCGA § 45-1-4 (d) (3). She also contends that the trial court erred by failing to conclude that all of her claims of retaliation constituted adverse employment action, that there was a causal relation between her protected activity and the adverse employment action, and that the County’s proffered explanations for the adverse employment action were pretextual. We begin our analysis with the adverse employment action element of Franklin’s claim.
1. Adverse Employment Action . While Franklin contends that the trial court erred by concluding that she did not suffer from adverse employment action, the record shows that the trial court characterized the denial of two specific job opportunities as denied promotions sufficient to establish a prima facie case of an adverse employment action.2 We will therefore only consider whether the following constituted adverse employment action: delaying a request to attend a training session; change of job duties from credentialing providers and credit card processing to electronic funds transfer duties; denial of leave requests and requests for documentation of leave; and the denial of a third alleged transfer opportunity.3
(a) Freeman v. Smith . Our research has revealed only one Georgia decision addressing the standard for determining whether a public employee has met her burden of proving "adverse employment action" under the Georgia Whistleblower Act. In Freeman v. Smith , 324...
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