atlanta independent school system, order on defendant's …
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IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA
IMOGENE REDWINE ,
Plaintiff,
v.
ATLANTA INDEPENDENT SCHOOL SYSTEM,
Defendant.
CIVIL ACTION FILE NO:
2015-CV-257709
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter came before the Court on Defendant Atlanta Independent School System's MOTION
FOR SUMMARY JUDGMENT filed on January 17,201.7. Plaintiff, a former special education teacher at
Brown Middle School, brings her claim under the Georgia Whistleblower Act ("G WA"), alleging that
she was retaliated against after she reported concerns of alleged cheating on the Critereon-Referenced
Competency Test ("CRCT"). The Court conducted a hearing on the Motion on September 14, 2017, and
counsel for Plaintiff and Defendant both appeared and presented oral argument. After a thorough
consideration of the pleadings, oral argument, and the applicable law, the Court rules as follows:
The Court has authority to grant a motion for summary judgment " ... if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law ... " O.C.G.A. § 9-11-56. Defendant argues in its Motion that Plaintiffs claim under
the GWA fails for four reasons: I) The claim is barred by the statute of limitations, 2) Plaintiff cannot
establish a prima facie case under the GWA, 3) Defendant has provided legitimate non-retaliatory
Fulton County Superior Court ***EFILED***RM
Date: 10/4/2017 2:29 PMCathelene Robinson, Clerk
reasons for Plaintiffs termination, and 4) Plaintiff cannot establish retaliatory animus. The Court will
address each of these arguments in turn.
The Statute of Limitations Bars Any Claim for Acts Which Occmred Prior to Mru·cb l. 2014
Plaintiff's Complaint chronicles a series of events that occurred over the course of her
employment at Brown Middle School which she argues to be the result of her reporting concerns about
fellow teachers cheating on the CRCT. The GWA provides that "[a) public employee who has been the
object of retaliation in violation of this Code section may institute a civil action in superior court for
relief as set forth in paragraph (2) of this subsection within one year after discovering the retaliation or
within three years after the retaliation, whichever is earlier." O.C.G.A. §45-1-4(e)(l) [emphasis added).
Plaintiff filed her Complaint on March 2, 2015, therefore her claim can only be based upon alleged
adverse actions occurring on or after March 3, 2014. It cannot be disputed that Plaintiffs Complaint
recounts several events which occurred prior to March 3, 2014. Where Plaintiff and Defendant disagree
is on whether those events should be characterized as separate actionable employment practices or
simply parts of a scheme which climaxed with the ultimate adverse employment action on June 30, 2014
when her employment with AISS ended.
Plaintiffs allegations go back several years before she was ultimately non-renewed iJ12014. Her
story begins in 2007 when she alleges that the then principal of Brown Middle School, Donnell
Underdue, learned that she bad spoken to her former supervisor about Underdue pressuring teachers to
cheat on the CRCT and that he re-assigned her to teaching a subject that she was not comfortable with or
qualified to teach. From that point on, according to Plaintiffs Complaint, her reporting of the cheating
scheme and refusal to comply with the cheating resulted in her being targeted and harassed in a variety
of ways, culminating with her accrued claim for non-renewal of her employment contract. Under the
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GW A, each adverse employment action alleged by a plaintiff is to be considered a separate cause of
action which triggers the running of the statute oflimitations. Franklin v. Eaves, 337 Ga. App. 292, 297
(2016). However the statute of limitations does not begin to toll until an action has "accrued," and "the
true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could
first have maintained his action to a successful result." Albers v. Georgia Bd. of Regents of Univ. Sys.
of Georgia, 330 Ga. App. 58, 65 (2014) (quoting Tuttle v. Georgia Bd. of Regents of Univ. Sys. of
Georgia, 326 Ga. App. 350, 353 (2014)). Like the plaintiff in Albers, the alleged retaliation being
complained of in this case is the termination of employment, thus the action accrued upon Plaintiff
receiving notice of her impending non-renewal on March 3, 2014.
The fact that Plaintiffs action did not accrue until March 3, 2014 does not mean that Plaintiffs
evidence is limited to events occurring on and after that date. The Court finds that Plaintiffs summary
of acts set forth in her Complaint as well as her Responses to Defendant's Motion for Summary
Judgment and Statement of Material Facts serves to provide background to Defendant's ultimate action
of non-renewal which forms the basis of her Complaint. In other words, while the series of allegedly
retaliatory acts enumerated by Plaintiff may or may not rise to the level of "adverse employment
actions," and either way would be time baned to the extent such actions occurred during the time
spanning the 2007-2008 school year until March 1, 2014, Plaintiff is not precluded from presenting
evidence of those actions in her effort to provide a complete picture of what led to her non-renewal in
2014.
Plaintiff Can Establish a Prima Facie Case Under the OW A
It has been recently established in Georgia courts that "the McDonneJI Douglas burden-shifting
analysis used in Title VII retaliation cases is appropriately utilized in the context of evaluating whether a
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state whistle-blower claim is subject to summary adjudication ... " Forrester v. Georgia Dep't of Human
Servs., 308 Ga. App. 716, 721 (2011 ). Under that analysis, Plaintiff has the initial burden of establishing
e prima facie case under the GWA, at which point the burden shifts to Defendant to show that there was
a legitimate, non-retaliatory reason for the adverse employment action taken against her. Upon such a
showing the burden would then shift back to Plaintiff to prove that Defendant's proffered reason for the
employment action is only pretext for unlawful retaliation. The Court will first address the issue of
whether Plaintiff can establish aprimafacie case. This being a motion for summary judgment and not a
final determination on the merits, the Court's role at this juncture is only to determine whether there is
any genuine issue of material facts that should go forth to be tried by a jury. O.C.G.A. §9-11-56. The
Court is required to accept Plaintiffs version of the facts as true and resolve all doubts in favor of
Plaintiff. Jackson v. Payne, 326 Ga. App. 536, 536 (2014). With this standard in mind, the Court finds
that Plaintiff has provided evidence sufficient to show that she can establish a prim a facie case under the
GWA.
It is well settled that to establish a prima facie claim under the statute, a public employee must
demonstrate the following four elements: (1) [s]he was employed by a public employer; (2) [s]he made a
protected disclosure or objection; (3) [s]he suffered an adverse employment action; and (4) there is some
causal relationship between the protected activity and the adverse employment action. Albers, 330 Ga.
App. at 61; OCGA § 45-1-4(d).
The first and third elements are not disputed; as an employee of Brown Middle School (and
therefore an employee of AISS) Plaintiff was employed by a public employer and on March 3, 2014 she
suffered an adverse employment action when she was notified of her non-renewal.
As to the second element, the Court reads Plaintiffs Complaint as raising both protected
disclosures and objections. Defendant argues that under the holding in Forrester v. Georgia Department
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of Human Resources, Plaintiff did not make a protected disclosure because the violation she allegedly
disclosed was a matter of common knowledge. Fonester, 308 Ga. App. at 716. Defendant also argues
that Plaintiff could not have made a protected objection because no one ever expressly instructed her to
violate any law or policy. Construing the facts in Plaintiffs favor, her reporting to her supervisors and to
a government agency (in this case the District Attorney's office) that she had concerns about cheating at
Brown Middle School were disclosures of a violation of the Jaw. There is a question of fact as to
whether the specific violations that she was reporting were in fact widely known at the time she
disclosed them. The fact that her supervisors knew about ongoing violations does not necessarily mean
that her reports were not a disclosure, as "nothing in the whistleblower statute suggests that protection
from retaliation ought to hinge on whether the information is unknown to the recipient." McKnight v.
Doughertv Cty., Ga., 1:12-CV-13 WLS, 2014 WL 1315554, at *4 (M.D. Ga. Mar. 28, 2014). And while
Plaintiff is not alleging that anyone expressly instructed her to cheat, she has alleged a series of facts
which show that she refused to participate in cheating on the CRCT despite pressure to do so from
school supervisors. This classifies as an objection under O.C.G.A. §54-l-4(d)(3).
As to the fourth element, the Court finds that there is a sufficient causaJ relationship between the
protected activity and the adverse employment action. Most persuasive is the temporal proximity
between Plaintiffs February 3, 2014 meeting with Principal Crooms and Assistant Principal Danser,
during which she disclosed violations concerning grade changing at Brown Middle School, and her
being notified that her contract was not being renewed on March 3, 2014. To show sufficient causation
"[ ... ]a plaintiff merely has to prove that the protected activity and the negative employment action are
not completely unrelated", and Plaintiff here has met that standard. Albers v. Georgia Bd. of Regents of
Univ. Sys. of Georgia, 330 Ga. App. 58, 62-63 (2014). It is for the jury to decide the credibility of the
witnesses and whether Principal Crooms, Assistant Principal Danser, and Superintendent Davis should
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be believed in their testimonies that they had no knowledge of Plaintiffs disclosures to school
supervisors, testimony before the grand jury, or communication with the District Attorney's Office.
There is a Question of Fact as to Whether Defendant Has Provided Legitimate Non-Retaliatory Reasons
Having recognized that Plaintiff can establish a prima facie case of retaliation, the Court now
turns to whether Defendant has provided legitimate, non-retaliatory reasons for the adverse employment
action. Defendant contends that the non-renewal letter sent to Plaintiff on May 28, 2014 indicated the
legitimate reasons that her contract would not be renewed. Those reasons were: 1) incompetency for
failure to provide adequate instructional planning and strategies and to complete the requirements of the
Spring 2014 PDP; 2) willful neglect for failure to differentiate instruction, complete IEPs, and address
the individual needs of each student, 3) insubordination for failure to complete the Spring 2014 PDP and
the IEPs, and 4) other good cause. Keeping in mind that "[t]he employer need not persuade the court
that its proffered reasons are legitimate, as its burden is merely one of production, not proof. .. ", the
Court finds that Defendant has sufficiently produced a legitimate and non-retaliatory reason for
Plaintiffs non-renewal and thus the burden is shifted back to Plaintiff to show that each of the stated
reasons are pretextual. Tuohy v. City of Atlanta, 331 Ga. App. 846, 851 (2015).
Plaintiff Can Establish Retaliatory Animus
Defendant argues that Plaintiff cannot show that the proffered legitimate reasons for the adverse
action were pretextual because she cannot show that the decision makers involved had knowledge of her
disclosures when the adverse actions were taken, and thus there is no retaliatory animus. The Court
disagrees. Plaintiff can meet her burden of showing pretext by "a direct showing that a discriminatory
reason more likely motivated the (defendant] or by an indirect showing that the (defendant's]
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explanation is not credible." Id. Plaintiff has provided several pieces of evidence, including that: 1) there
is close temporal proximity between her meeting with Principal Crooms and Assistant Principal Danser
and her non-renewal, 2) the depositions and affidavits of the Georgia Professional Standards
Commission and her special education supervisor illustrate her highly qualified status and her own
testimony is evidence that there was fabricated information in her teaching evaluations, 3) Principal
Crooms and her special education supervisor attempted to prevent Plaintiff from going to meet with the
District Attorney's Office, and 4) Plaintiff had a history of satisfactory performance evaluations. This
evidence, taken in a light most favorable to Plaintiff, is sufficient to create a genuine issue of material
fact as to whether Defendant's stated reasons for not renewing Plaintiff's contract were merely pretexts
for retaliating against her.
For the reasons stated herein, Defendant's Motion for Summary Judgment is hereby GRANTED
on the basis of the applicable statute of limitations running as to any adverse employment claim
accruing on or before March 1, 2014 and DENIED on all other grounds.
SO ORDERED, ADJUDGED AND DECREED THIS 4th DAY OF October, 2017.
Filed and Served Electronically via Odyssey eFileGA
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