Shelnutt v. Mayor, No. A15A0381.

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtMcMILLIAN, Judge.
Citation776 S.E.2d 650,333 Ga.App. 446
PartiesSHELNUTT et al. v. The MAYOR and Aldermen of the City of Savannah et al.
Decision Date18 June 2015
Docket NumberNo. A15A0381.

333 Ga.App. 446
776 S.E.2d 650

SHELNUTT et al.
v.
The MAYOR and Aldermen of the City of Savannah et al.

No. A15A0381.

Court of Appeals of Georgia.

June 18, 2015.
Reconsideration Denied July 28, 2015.

Certiorari Denied Nov. 2, 2015.


776 S.E.2d 652

Karsman, McKenzie & Hart, Jeremy Springer McKenzie, Savannah, for Appellants.

Hunter, Maclean, Exley & Dunn, Shawn Anton Kachmar, Savannah, W. Brooks Stillwell III, for Appellees.

Opinion

McMILLIAN, Judge.

333 Ga.App. 446

Christopher Shelnutt and 49 other firefighters (the “ Firefighters”) from the City of Savannah appeal the trial court's grant of a motion to dismiss and motion for judgment on the pleadings filed by the Mayor and Aldermen of the City of Savannah (the “City”) and Stephanie Cutter, the Savannah city manager, as to their claims for breach of contract.1 The Firefighters asserted in their “First Amended and Recast Complaint” that the City's written “Pay Policy” created a contract between the City and the Firefighters and that the City breached that contract by paying them less than they were owed under the terms of the Pay Policy.

In considering the trial court's decision on a motion to dismiss and/or a motion for judgment on the pleadings, we apply a de novo review and thus “owe no deference to the decision of the court below.” Pryce v. Rhodes, 316 Ga.App. 523, 523, 729 S.E.2d 641 (2012) (motion for judgment on pleadings). See also Liberty County School Dist. v. Halliburton, 328 Ga.App. 422, 423, 762 S.E.2d 138 (2014). Moreover, we must consider all well-pled material allegations on the Firefighters' complaint as true, with all doubts resolved in their favor. Ewing v. City of Atlanta, 281 Ga. 652, 653(2), 642 S.E.2d 100 (2007) (motion to dismiss); Early v. MiMedx Group, Inc., 330 Ga.App. 652, 654, 768 S.E.2d 823 (2015) (motion for judgment on the pleadings). “We may also consider any exhibits attached to and incorporated into the complaint and the answer, also construing them in the appellant's favor.” Stafford v. Gareleck, 330 Ga.App. 757, 758, 769 S.E.2d 169 (2015) (motion to dismiss). See also Early, 330 Ga.App. at 654, 768 S.E.2d 823 (motion for judgment on the pleadings). Nevertheless, a court should not grant a motion to dismiss unless “the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof[.]” (Citation omitted.) Austin v. Clark, 294 Ga. 773, 774–775, 755 S.E.2d 796 (2014). And “[a] motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment.” (Citation and punctuation omitted.) Sherman v. Fulton County Board of Assessors, 288 Ga. 88, 90, 701 S.E.2d 472 (2010).

333 Ga.App. 447

The complaint alleges that the Firefighters are all supervisors with the City's Bureau of Fire and Emergency Services, some of whom are classified as “exempt” for pay purposes and some of whom are classified as “non-exempt.”2 The City's Pay Policy includes provisions outlining changes in compensation for employees when promoted to a higher position, and those provisions have undergone a number of revisions since 1998.3

776 S.E.2d 653

From 1998 to November 2009, the Pay Policy provided, in pertinent part, that “[a]n employee promoted to a higher classification shall receive an increase of five percent above his/her current pay,” and “[w]hen the present rate of the promoted employee is five percent or more below the minimum of the new pay grade, he/she will receive the minimum of the new pay grade.” And during the same time period, the Pay Policy also provided that an individual promoted to an “exempt” supervisory position “shall receive an increase of 7.5% above his/her current pay,” with the qualification that if “the present rate of the promoted employee is 7.5% or more below the minimum of the new pay grade, he/she will receive the minimum of the new pay grade.” As of November 2009, the percentage pay increase for employees “promoted to a higher classification” was raised to ten percent “up to the maximum of the new pay range,” and the language providing for a 7.5% pay increase for “exempt” supervisory positions was deleted.

Additionally, as of July 2005, the Pay Policy was amended to include a provision that mandated a one-time promotional pay increase for an employee promoted to a supervisory position, whether exempt or non-exempt, to “a minimum of 5% above the highest paid employee to be supervised at the time of the promotion.” This language was removed from the Pay Policy in the November 2, 2009 revision but was reinserted in the September 8, 2013 revision of the Pay Policy.

The Complaint, as amended, alleges that each of the 50 Firefighters has received a promotion since 2002 but did not receive the pay increases outlined in the City's Pay Policy. They assert that Cutter, or her designees, failed to enforce the City's pay requirements as required by the Pay Policy, but rather “determine[d] pay based on personal favoritism and bias.”

In response, the City and Cutter rely on language that appears in all versions of the Pay Policy, which provides that “[e]xceptions to

333 Ga.App. 448

or interpretation of these rules and policies will be referred to the Human Resources Director and/or City Manager for resolution. The City Manager has the authority to make exception to these policies as deemed necessary.” They assert that this language demonstrates that the policies are discretionary and not enforceable contract terms.

The City and Cutter also cite disclaimer language found in the December 2004, the November 2006, and the January 2014 editions of the “City of Savannah Employee Handbook” (the “Handbook”), which they attached to their answer.4 Each version of the Handbook contains a “NOTICE TO ALL EMPLOYEES,” stating that the Handbook is

only a general guide to the City's employment policies and to some of your benefits.... It is informational only. From time to time, the City reviews its policies, procedures, and benefits and makes revisions based on the need for or desirability of changes. Thus, any policy, procedure, or benefit outlined in this handbook may be modified, decreased, eliminated or increased at any time with or without advance notice. In addition, the City remains free to decide in all cases whether to apply the policies expressed herein to any particular set of circumstances.

The Handbook further provided that it “does not constitute an expressed or implied contract. The employee may separate from his/her employment at any time; the City of Savannah reserves the right to do the same.”

However, the December 2004 and November 2006 versions of the Handbook do not include or expressly incorporate the City's Pay Policy. Rather, the Handbooks list a number of employment-related topics and for “specific information,” refer the employee to the City's Pay Policy, which “[could] be found on the City's P: drive,” as well as the Fair Labor Standards Act Handbook, which “[could] be found on the City's Intranet or obtained through [the employee's] department director.” The City and Cutter have not pointed us to any provision in either the 2004 Handbook and/or the 2006 Handbook expressly incorporating the Pay Policy into its terms, and we have found none. Moreover,

776 S.E.2d 654

none of the versions of the Pay Policy from November 2, 2002 through June 28, 2012 expressly incorporate or reference either the Handbook or its disclaimer language. However, the January 2014

333 Ga.App. 449

version of the Handbook contains the September 8, 2013 version of the Pay Policy in full and no longer refers employees to the City's P: drive for specific information.

1. In granting the City's motion, the trial court treated the Pay Policy and the Handbook as one document, finding, for example, without citation or analysis, that the provision of the Pay Policy granting a promoted employee a raise of five percent above the highest paid employee to be supervised “was first incorporated into the ... Handbook” as of July 2005. Thus, the trial court relied on the disclaimer language of the Handbook in finding that “throughout the policy the City makes clear that this is not a contract, that the City remains free to decide whether to apply the policies to a particular set of circumstances and may modify, decrease, eliminate or increase any policy or benefit at any time without advance notice.” (Emphasis supplied.) And the trial court concluded that “the instant pay policy and employee manual are not a binding contract.”

However, we find no basis for treating the Pay Policy as part of the Handbook prior to January 2014,5 when the Handbook was expanded to include the Pay Policy within its terms. Prior to that time, the Handbook merely directed employees to refer to a digital version of the Pay Policy on the City's hard drive for more information. Nor do we see any basis in the text for treating the Handbook and its disclaimers as part of the Pay Policy as neither...

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15 practice notes
  • Williams v. Dekalb Cnty., A22A0508
    • United States
    • United States Court of Appeals (Georgia)
    • July 1, 2022
    ...than factual assertions in affidavits, which were attached to the pleadings. See Shelnutt v. Mayor & Aldermen of City of Savannah , 333 Ga. App. 446, 448, 776 S.E.2d 650 (2015) (employee handbook); Hendon Properties v. Cinema Dev. , 275 Ga. App. 434, 435, 620 S.E.2d 644 (2005) (parties’......
  • Summerville v. Innovative Images, LLC, A19A0258
    • United States
    • United States Court of Appeals (Georgia)
    • March 15, 2019
    ...alone to find the parties' intent." (Citation and punctuation omitted.) Shelnutt v. Mayor &Aldermen of the City of Savannah , 333 Ga. App. 446, 452 (3), 776 S.E.2d 650 (2015). Hence, "[w]here the language of the contract is plain, unambiguous, and capable of only one reasonabl......
  • Schroeder v. Dekalb Cnty., A17A0551
    • United States
    • United States Court of Appeals (Georgia)
    • June 14, 2017
    ...should be granted only if the moving party is clearly entitled to judgment. Shelnutt v. Mayor & Aldermen of City of Savannah , 333 Ga. App. 446, 776 S.E.2d 650 (2015) (citations and punctuation omitted). Simply put, a defendant is entitled to a "grant of a motion for judgment on th......
  • Williams v. Dekalb Cnty., A22A0508
    • United States
    • United States Court of Appeals (Georgia)
    • July 1, 2022
    ...than factual assertions in affidavits, which were attached to the pleadings. See Shelnutt v. Mayor & Aldermen of City of Savannah, 333 Ga.App. 446, 448 (776 S.E.2d 650) (2015) (employee handbook); Hendon Properties v. Cinema Dev., 275 Ga.App. 434, 435 (620 S.E.2d 644) (2005) (parties' a......
  • Request a trial to view additional results
15 cases
  • Williams v. Dekalb Cnty., A22A0508
    • United States
    • United States Court of Appeals (Georgia)
    • July 1, 2022
    ...than factual assertions in affidavits, which were attached to the pleadings. See Shelnutt v. Mayor & Aldermen of City of Savannah , 333 Ga. App. 446, 448, 776 S.E.2d 650 (2015) (employee handbook); Hendon Properties v. Cinema Dev. , 275 Ga. App. 434, 435, 620 S.E.2d 644 (2005) (parties’ agr......
  • Summerville v. Innovative Images, LLC, A19A0258
    • United States
    • United States Court of Appeals (Georgia)
    • March 15, 2019
    ...contract alone to find the parties' intent." (Citation and punctuation omitted.) Shelnutt v. Mayor &Aldermen of the City of Savannah , 333 Ga. App. 446, 452 (3), 776 S.E.2d 650 (2015). Hence, "[w]here the language of the contract is plain, unambiguous, and capable of only one reasonable int......
  • Schroeder v. Dekalb Cnty., A17A0551
    • United States
    • United States Court of Appeals (Georgia)
    • June 14, 2017
    ...pleadings should be granted only if the moving party is clearly entitled to judgment. Shelnutt v. Mayor & Aldermen of City of Savannah , 333 Ga. App. 446, 776 S.E.2d 650 (2015) (citations and punctuation omitted). Simply put, a defendant is entitled to a "grant of a motion for judgment on t......
  • Williams v. Dekalb Cnty., A22A0508
    • United States
    • United States Court of Appeals (Georgia)
    • July 1, 2022
    ...than factual assertions in affidavits, which were attached to the pleadings. See Shelnutt v. Mayor & Aldermen of City of Savannah, 333 Ga.App. 446, 448 (776 S.E.2d 650) (2015) (employee handbook); Hendon Properties v. Cinema Dev., 275 Ga.App. 434, 435 (620 S.E.2d 644) (2005) (parties' agree......
  • Request a trial to view additional results

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