Johnson v. Rogers, A94A1701

• Decision Date: 17 August 1994
• Docket Number: No. A94A1701,A94A1701
• Citation: 214 Ga.App. 557,448 S.E.2d 710
• Parties: JOHNSON v. ROGERS et al.
• Court: Georgia Court of Appeals

Page 710

448 S.E.2d 710

214 Ga.App. 557

JOHNSON v. ROGERS et al.

No. A94A1701.

Court of Appeals of Georgia.

Aug. 17, 1994.

McKee & Barge, Christopher J. Ramig, Atlanta, for appellant.

Michael J. Bowers, Atty. Gen., Susan L. Rutherford, Jeffrey L. Milsteen, Sr. Asst. Attys. Gen., for appellees.

BIRDSONG, Presiding Judge.

Appellant/plaintiff William R. Johnson III appeals the order of the superior court granting summary judgment in favor of appellees/defendants Robert Eugene Rogers, Sr. et al.

Appellant was employed by the Georgia Department of Labor (DOL) and at all times pertinent was employed in the capacity of Employment Counselor, Sr. In December 1989, he was terminated from employment for reason of job abandonment with DOL following his election not to return to work after being ordered to transfer from Hinesville to Savannah. The transfer of appellant was to be accomplished without pay reduction but in a non-supervisory capacity of either an Employment Counselor, Sr. or Employment Counselor. Appellant elected not to accept his supervisor's subsequent offer to rescind the termination action if appellant would return to work in compliance with the transfer order. This election appears to have been motivated by appellant's contention that the transfer action was a demotion, which had been accomplished in violation of applicable Rules of the State Personnel Board (SPB Rules).

Appellant administratively was upset with his termination in accordance with the procedure promulgated under the Rules and Regulations of the State Personnel Board (SPB); the SPB denied his grievance adopting the initial decision of the hearing officer. The hearing officer found, inter alia, that the separation was appropriate under all circumstances asserted, the preponderance of evidence failed to show a violation of any SPB Rule in separating appellant under the provision of Rule 12.202, and DOL cured any error arising from appellant's belief that he was on annual leave or the fact he had reported to the Hinesville office and worked on certain personnel matters on December 6, 1989, by offering appellant employment reinstatement on January 31, 1990. Appellant appealed the SPB decision to the superior court; the court remanded the case to the SPB to allow appellant to present evidence of having worked during the alleged period of abandonment. The hearing officer at the second hearing received evidence regarding whether appellant had been placed on leave during the alleged five-day period of absence. The SPB reviewed the new evidence and held that the DOL had not violated the SPB Rules and Regulations in terminating appellant's employment under the provisions pertaining to abandonment of position. The SPB further found that even if appellant had performed some work while on the alleged leave--thereby tolling the five-day abandonment period--by declining the reinstatement offer, he abandoned his job. The SPB's decision was reviewed and affirmed by the superior court and appellant elected not to appeal that judicial determination.

Appellant thereafter brought suit alleging tortious interference with his employment contract and also asserting a cause of action under 42 U.S.C. § 1983 averring that the acts of appellees were taken under color of law and in violation of his constitutional rights. As to appellant's current civil suit, the superior court granted summary judgment holding that res judicata, collateral estoppel, and failure to exhaust administrative remedies barred the action. Held:

1. The applicable standard for summary judgment in this case is announced in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474. On appeal a grant of summary judgment must be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga.App. 764, 767(5), 431 S.E.2d 746.

2. The trial court held, inter alia, that, under the SPB Rules, appellant's "transfer did not constitute a demotion because his class and pay status were unaffected." We agree. SPB Rule 10.301. The record establishes as a matter of law, by positive and uncontradicted evidence, that the transfer of appellant was to be accomplished so as to retain him in his existing pay status; no genuine issue of material fact exists as to this issue. Assuming arguendo a modicum of circumstantial evidence had existed that a reduction in pay would directly result from the transfer, it is a long-standing rule that a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. Sandifer v. Long Investors, 211 Ga.App. 757, 760(2), 440 S.E.2d 479; Brewer v. Southeastern Fidelity Ins. Co., 147 Ga.App. 562, 564, 249 S.E.2d 668 and cases cited therein. Likewise we agree, as a matter of law, with the holding of the trial court that appellant's reassignment to Savannah did not constitute a relocation within the meaning of applicable SPB Rules; the SPB Rules pertaining to relocation are not applicable where, as here, an employee is required to report to an office less than 50 miles from his original assignment. Compare SPB Rule, Ch. 478-1, § G. 200 with Office of Planning & Budget Policy Memorandum No. 2 (Revision 6), Par. 2d.

3. As to the tortious interference claims, we find that each claim against a defendant averred to have been acting in his or her official capacity is not a claim against a stranger to the contract; defendants, to the extent of acting within their official capacities, were not intermeddlers acting both improperly and without privilege. See Renden v. Liberty Real Estate etc., 213 Ga.App. 333, 444 S.E.2d 814 and cases cited therein.

4. Pretermitting whether the trial court did not err in holding that appellant's substantive due process claims asserting constitutional deprivation (42 U.S.C. § 1983), by means of constructive demotion or...