Green v. Sun Trust Banks, Inc.

• Decision Date: 16 November 1990
• Docket Number: No. A90A1487,A90A1487
• Parties: , 6 IER Cases 118 GREEN et al. v. SUN TRUST BANKS, INC. et al.
• Court: Georgia Court of Appeals

Page 712

399 S.E.2d 712

197 Ga.App. 804, 6 IER Cases 118

GREEN et al. v. SUN TRUST BANKS, INC. et al.

No. A90A1487.

Court of Appeals of Georgia.

Nov. 16, 1990.

Rehearing Denied Nov. 30, 1990.

Certiorari Denied Jan. 7, 1991.

Henning, Aitkens, Snellings & Kearns, Stanley T. Snellings, Ford & Haley, James L. Ford, Atlanta, for appellants.

Constangy, Brooks & Smith, Edward Katze, Rosemary P. Lumpkins, Donald W. Benson, Neely & Player, John W. Winborne III, Atlanta, for appellees.

BEASLEY, Judge.

Green and six other former employees of Trust Company Bank and its affiliated companies, Trust Company of Georgia and Sun Trust Banks, appeal from the grant of summary judgment to the banks and four supervisors on claims arising from termination of their employment.

Suit was filed in superior court, removed to federal court due to federal race and sex discrimination claims, and remanded to superior court after plaintiffs stipulated that they would not assert the federal claims there. Aside from those claims, the complaint alleged: defamation in that "defendants stated orally and in writing that plaintiffs were terminated for extortion by waiving late payments and interest charges on installment loans owed by some plaintiffs and some customers," and invasion of privacy by way of said defamation; intentional infliction of emotional distress; wilful and wanton conduct giving rise to punitive damages; wrongful termination based on race, a ground assertedly impermissible as a matter of public policy; attorney fees.

Defendant Cline was a senior vice president who directly oversaw defendant Quidley, a group vice president, and defendant Chaney, an assistant vice president. Quidley oversaw defendant Scott, a vice president in charge of auto leasing, which was supervised by Gallaspy (not a party) and employed plaintiffs Hudson and Jennings, both black females. Scott also directly supervised the dealer section of leasing, in which plaintiff Miles, a white male, worked. Chaney was in charge of installment loan operations where plaintiffs Brandenburg, Sneeze, and Wilder worked, and in which plaintiff Green was the supervisor. Sneeze and Wilder are black females; Green and Brandenburg white females. Summarizing, in addition to the defendant corporations, the parties were Hudson, Jennings, Sneeze, Wilder (black females), Green, Brandenburg (white females), and Miles (white male) as plaintiffs, and Cline, Quidley, Scott and Chaney as defendants.

1. Plaintiff-appellants' briefs contain numerous quotations from the depositions of defendants Chaney, Quidley and Cline. The banks have filed a motion to strike these portions of the briefs on the ground none of these were filed in the court below and are therefore not part of the record on appeal.

Neither the Appellate Practice Act nor the Rules of this court provide for formal striking of references from briefs, but this court may only consider matters of record in the court below. Assertions of fact made in briefs not supported by the record are not considered. Blue v. R.L. Glosson Contracting, 173 Ga.App. 622, 623(1), 327 S.E.2d 582 (1985). References to the Quidley and Chaney depositions, which were not filed below nor considered by the court, will not be considered. Cline's deposition, although not originally filed below, was considered by the court in its ruling and was made part of the record pursuant to OCGA § 5-6-41(f). It will be considered.

2. Viewed with all inferences and reasonable doubts in favor of plaintiffs, opponents of summary judgment, Eiberger v. West, 247 Ga. 767, 769(1), 281 S.E.2d 148 (1981), the facts presented for summary judgment were as follows.

In the fall of 1986, one of the bank collectors was reviewing accounts with a lot of collection activity and noticed that, although Hudson had a significant amount of collection activity, none of her payments showed on the bank records as past due.

The installment loan operations division was responsible for processing incoming payments on installment loans and crediting them to the customer's account. A payment received after the due date was considered late. If payment was not made within 10 days of the due date, a late fee, usually 5-10 percent of the payment, was assessed. Employees in that division were trained in filling out transaction slips by which, using an appropriate code, an employee could cause a payment to show as timely when it was not or could waive the late fee without altering the receipt date.

Pursuant to federal and state banking laws, the banks carried a fidelity bond on all employees. The bond required that all employees be bondable, and that determination was to be made by the personnel department of the banks. The bond by its language terminated as to any employee committing a "dishonest or fraudulent" act.

When employees were hired, they were given an employee benefits handbook which stated: "The nature of the Company's business imposes special obligations on all employees to safeguard its integrity. Employees are expressly forbidden to use their association with the Company for personal gain beyond authorized compensation and benefits. If there is any question that an activity might violate or appear to violate this principle, the employee must seek guidance from appropriate management authority."

Hudson, who had worked in installment operations previously, was familiar with procedures there. She asked Sneeze to backdate one of her own personal payments on an installment loan so as to avoid a late fee. She believed that Sneeze also backdated two other payments of hers.

Sneeze acknowledged backdating Hudson's payments as well as those of Jennings. Sneeze also acknowledged the bank policy that customers who asked that late fees be waived or that their payments be accepted as timely due to bank error had to have a valid reason before the employee was authorized to do that. No reason was given by or requested from Jennings and Hudson.

Jennings initially denied ever having her payments backdated but eventually acknowledged that she asked for waiver of late fees. No reason was given as to why she met the waiver criteria.

Wilder admitted backdating her own payment without approval from a superior and that of another employee, without a reason. She did not know it was wrong.

Brandenburg backdated her own payment which was 30 days late. Had she not done so, her loan status would have been negatively reported to the credit bureau. The only times she backdated payments for regular bank customers were on instructions from a bank officer or customer representative. She was aware that she could have avoided a late fee without backdating her payment.

The day after Hudson was terminated, Green went to her supervisor Chaney and told her she had also backdated some of her own payments, but was unaware it was wrong. She had backdated five to ten of her payments so they would appear timely.

Plaintiffs were dismissed in December 1986. Miles was a bank officer who was not terminated until March of 1987. He and Holliday, another bank employee, had an installment loan for a house trailer. He knew that an employee was not to backdate his personal loan. The employee who backdated the payment at Miles' direction did so because he was an officer of the bank who could authorize it. She was not dismissed.

3. Enumerations 4 and 5, concerning the claim for discharge in violation of public policy plus a discovery dispute unresolved at the time of summary judgment, will be addressed together.

(a) Plaintiffs urge that A.L. Williams & Assoc. v. Faircloth, 259 Ga. 767, 386 S.E.2d 151 (1989), created in footnote 4 of Division 3 a cause of action for wrongful termination in an employment at will situation when race-motivated in violation of public policy. We do not read the suggestion as having changed the law in Georgia. See Borden v. Johnson, 196 Ga.App. 288, 289(1), 395 S.E.2d 628 (1990), cert. denied, 196 Ga.App. ----. Cf. OCGA § 45-19-20 et seq., the Fair Employment Practices Act of 1978.

(b) Plaintiffs filed two motions to compel discovery. The first was to compel response to 11 interrogatories which were objected to by defendants as irrelevant, immaterial, overbroad, burdensome and intended to harass the banks. The interrogatories dealt with other incidents of backdating by other employees of the bank, including all backdating for customers who were not employees, and with the extent of the investigation conducted by the banks of the plaintiffs' backdating.

The second motion dealt with the banks' refusal to answer two interrogatories seeking names of persons on two lists "described by Terry Chaney and Jim Scott in their respective depositions." These depositions were not part of the record below and the motion thus presented nothing for either that court or this one to rule upon. The motion also sought to compel production of documents. Requests 1-4 and 15 are not reviewable because they refer to the Chaney and Scott depositions.

Requests 10 and 11 sought the loan history of a customer who was not involved in the dismissal of plaintiffs and Requests 14 and 16 sought all records dealing with the security investigation of plaintiffs.

No express order was entered by the court on these discovery matters; summary judgment was entered instead. "The trial judge is presumed to know the law [Dixon v. Dixon, 211 Ga. 557, 563, 87 S.E.2d 369] and presumed to 'faithfully and lawfully (perform) the duties devolving upon it by law.' Sullivan v. Brownlee, 174 Ga.App. 813(1), 331 S.E.2d 622." Windom v. State, 187 Ga.App. 18, 19(2), 369 S.E.2d 311 (1988); In re R.L.Y., 181 Ga.App. 14, 16, 351 S.E.2d 243 (1986). It is presumed that the court implicitly denied the motions to compel upon entering summary judgment. Windom, supra. "[T]his court will not presume the trial court committed error where that fact does not affirmatively appear." Whiteley v. State, 188 Ga.App. 129, 130(1), 372 S.E.2d 296 (1988); Fortson...