Pattee v. Georgia Ports Authority

• Decision Date: 18 December 2006
• Docket Number: No. 406CV028.,406CV028.
• Citation: Pattee v. Georgia Ports Authority, 477 F.Supp.2d 1253 (S.D. Ga. 2006)
• Parties: Roger Allen PATTEE and Kimberly Ann Pattee, Plaintiffs, v. GEORGIA PORTS AUTHORITY; Douglas J. Marchand, individually and in his official capacity as Executive Director of the Georgia Ports Authority; and David A. Schaller, individually and in his official capacity as Deputy Executive Director of the Georgia Ports Authority, Defendants.
• Court: U.S. District Court — Southern District of Georgia

477 F.Supp.2d 1253

Roger Allen PATTEE and Kimberly Ann Pattee, Plaintiffs, v. GEORGIA PORTS AUTHORITY; Douglas J. Marchand, individually and in his official capacity as Executive Director of the Georgia Ports Authority; and David A. Schaller, individually and in his official capacity as Deputy Executive Director of the Georgia Ports Authority, Defendants.

No. 406CV028.

United States District Court, S.D. Georgia, Savannah Division.

December 18, 2006.

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A. Lee Parks, Andrew Y. Coffman, Eleanor Mixon Attwood, Steven E. Wolfe, Parks, Chesin & Walbert, PC, Atlanta, GA, for Plaintiffs.

Bradley J. Watkins, Whelchel, Brown, Readdick & Bumgartner, G. Todd Carter, Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, LLP, Brunswick, GA, for Defendants.

ORDER

EDENFIELD, District Judge.

I. INTRODUCTION

This case arises from Roger Pattee's termination as an officer with the Georgia Port Police (GPP), a department of the Georgia Ports Authority (GPA) that provides general law enforcement at Georgia's ports. Doc. # 1. Pattee outlined security flaws in the Port of Savannah and, after receiving an apathetic response from GPP management, he emailed his opinions to a member of Georgia's Homeland Security Task Force. As a result, the Office of the Inspector General of the State of Georgia investigated the Port. Pattee claims his subsequent termination was in retaliation for his First Amendment-protected emails.

Pattee brought a state-court action alleging a violation of 42 U.S.C. § 1983 by the GPA, GPA Executive Director Douglas Marchand, and GPA Deputy Executive Director David Schaller. Doc. # 1, attach. 1 at 27. Pattee also claimed a violation of the Georgia Whistleblower Act, O.C.G.A. § 45-1-4(GWA), id. at 22-23, and his wife claimed loss of consortium damages caused by the violation of the GWA. Id. at 27-28. Pattee sought actual, compensatory, and punitive damages, as well as declaratory relief. Id. at 28-29. The defendants removed the action to this Court, doc. # 1, and now move for summary judgment. Doc. # 25.

II. BACKGROUND

Pattee served as a GPP, Port of Savannah officer from 1997 until 3/8/04. Doc. # 25 at 1. On at least five occasions during that tenure he raised concerns about security deficiencies to his supervisors but was ignored. Doc. # 44 at 1. Out of concern for Port security, Pattee sent a 3/03 email to Stanley Tuggle, Sheriff of Clayton County, Georgia and a member of Georgia's Homeland Security Task Force. Doc. # 44 at 2-3. Eventually the email was forwarded to the Office of the Inspector General of the State of Georgia (OIG). Doc. # 25 at 1.

In that email Pattee related what he termed a problem of "Homeland Security." Doc. # 25, exh. A at 1. Though the GPP is charged with enforcing the law at the Port, he noted, GPP supervisors relegated officers to acting as a private security force for the Port's patrons. Id. Pattee told of instances where economic interests trumped law enforcement, including the release of "drunk drivers, suspects of family domestic violence, and ... people [subject to] valid warrants." Id. at 1-2. Furthermore, restrictions on the "GCIC/NCIC teletype," a machine used to perform criminal history checks, created a problem with investigating individuals and vehicles at the Port — the teletype was available only during standard business hours on weekdays. Id. at 2.

Pattee outlined problems with communication between management and officers, as well as between GPP and other agencies operating at the Port. Id. at 3. He pointed out the continuing violation of a Port Authority Rule governing GPP jurisdiction versus private security. Id. He presented examples of the shoddy equipment GPP officers are given to work with, including old cars, leaky gate-houses, lack of bullet-proof vests, and 13-plus-year-old firearms. Id. at 4-5. He complained about the delegation of supervision of cargo interchanges from GPP to a private entity, a move he claimed was made because adequate security would "hamper the movement of cargo." Id. at 4-5.

Pattee offered suggestions for improving Port security. Id. at 5-7. He suggested the addition of canine units, collaboration with U.S. Customs, and riot training. Id. at 5-6. At the administrative level, he recommended that GPP be removed from the control of the GPA and be restructured. Id. at 6-7. Finally, plaintiff noted that his proposed changes would result in lower pay and benefits for GPP officers like himself; he also presciently stated he would be fired for making the complaint. Id. at 7. Despite that risk, he sent the email because "The Port of Savannah is NOT secure. The security and police operations are run by the shipping industry, not law enforcement minded [sic] people." Id.¹

In response to those emails, the OIG investigated the GPA. Doc. # 25 at 2. On 8/29/03, OIG investigator Robert Terjesen interviewed Pattee. Doc. # 44 at 4. During the interview, Terjesen asked Pattee for the names and contact information of GPP officers who could corroborate his allegations. Id. Pattee hesitated because of a GPA rule restricting the release of officers' contact information. Id. The rule reads:

No officer of the department will release to the public or any public agency the restricted home telephone number of any other officer of the department without the authorization from [sic] their terminal commander.

Doc. # 25 at 2 (quoting GEORGIA PORTS AUTHORITY PORT POLICE DEPARTMENT RULES AND REGULATIONS MANUAL, chap. II, § P2, ¶ 14). In response, Terjesen showed Pattee the Executive Order establishing the OIG which, inter alia, requires "every state employee [to] cooperate with, and provide assistance to, the State Inspector General in the performance of any investigation." Doc. # 25, exh. C at 3; Doc. # 44 at 4-5.

In light of that directive, Pattee gave the names and contact information of fellow officers who had previously complained to Pattee about GPP's inadequacies, knew Pattee was meeting with OIG, and assured Pattee that they would cooperate with OIG. Doc. # 44 at 5. With the exception of one officer, the officers Pattee identified later refused to cooperate with Terjesen (in violation of the Executive Order) out of a fear of GPA retaliation. Id. The one who did cooperate did so only on the condition of anonymity. Id.

On 11/19/03, Inspector General (IG) James Sehorn and Deputy Inspector General Philip Walker met with Marchand and Schaller to discuss the complaint and concerns about security at the Port. Id. at 6. During the meeting Sehorn warned defendants that retaliation against the "whistleblower," whom he did not name, was forbidden. Id. A few days after the meetings, GPP Officers Joseph Saunders and Eric Hampton filed complaints against Pattee with GPA supervisors because the OIG had contacted their houses — contact made possible by Pattee's disclosure of their private phone numbers. Id. at 7. Marchand and Schaller, having met with Sehorn and Walker, and having read the Executive Order, knew that GPP officers were required to cooperate with OIG, including by disclosing other officers numbers in violation of GPA policy. Id. Nonetheless, they conducted an investigation into Pattee's alleged breach of the GPA policy forbidding disclosure of fellow officers' phone numbers. Doc. # 25 at 3.

Pursuant to this investigation, Schaller called Pattee in for an interview on 12/17/03 in which he asked Pattee (1) whether he had violated the GPA policy against releasing fellow officer's phone numbers and (2) whether he had released names or phone numbers of GPP officers to the public or a public agency. Doc. # 25 at 3.² Pattee answered both questions in the negative. Id. (Pattee claims his answers were truthful either because he did not consider Terjesen "the public or a public agency," or because the rule did not apply because he was directed to cooperate by the Executive Order. Doc. # 44 at 10.) The GPA, believing Pattee's answers were inconsistent with Saunders's and Hampton's complaints, asked all three officers to submit to a polygraph test. Doc. # 25 at

Pattee arrived with an attorney at the polygraph appointment. Doc. # 44 at 10. The attorney asked the GPA official overseeing the test whether the results might be used against Pattee in a criminal investigation and what consequences would follow if Pattee refused to take the polygraph. Id. The official refused to answer those questions, stating that they would need to be reviewed by, GPA lawyers. Id. Pattee refused to take the polygraph.

Upon hearing about the polygraph, IG Sehorn called Schaller out of concern that the GPA was retaliating against Pattee. Doc. # 46, exh. 20. Sehorn noted that Pattee was not denying that he provided phone numbers to Terjesen during the investigation, and to punish Pattee for re leasing the phone numbers would be "countermanding the authority of the Governor." Id. Furthermore, Sehorn related the OIG's position on the 12/17/03 meeting to Schaller: Terjesen was not acting as a member of "the public or a public agency," so Pattee had not lied in denying he had not released the phone numbers to the public or a public agency. Id.

Despite the phone call from Sehorn, defendants contacted their legal counsel, who opined that it would not be a violation of the law to terminate Pattee for lying. Id. at 4-5. On 3/8/04, the GPA terminated Pattee after concluding that he lied to Schaller during the investigation of Saunders's and Hampton's complaints. Id. at

In response, Pattee brought this action against the GPA as well as Marchand and Schaller in their individual and official capacities. He claims violations of the First Amendment and the GWA. Doc. # 1. He alleges that he was fired for sending emails to Stanley Tuggle that were critical of the GPA and described major flaws in the security level at the Port of Savannah. Id. The defendants, on the other hand, claim that Pattee was fired for lying...