Waters v. Georgia Department of Juvenile Justice
Filing
53
ORDER granting 44 Motion for Summary Judgment. The Clerk shall enter judgment in favor of the Defendants' and closed this case. Signed by Judge J. Randal Hall on 4/14/16. (cmr)
IN THE UNITED STATES
DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
JOHNNY DARNELL WATERS,
Plaintiff,
*
V.
*
*
GEORGIA DEPARTMENT OF JUVENILE
*
JUSTICE,
*
et al.,
Defendants.
6:14-cv-10
*
*
*
ORDER
This
case
concerns
a dispute between a
state
employee
and
his supervisors and coworkers over what personal activity should
occur
at
work.
specialist
("DJJ")
that
with
Evans
his
Plaintiff
the
Georgia
County
coworkers
were
Plaintiff
prohibited
content
Office,
misusing
and
his
work
a
probation
Juvenile
of
their
Justice's
time
and
management
violating
his supervisors did not
accusations;
discovered
on his
Waters,
complained to
To his surprise,
investigate
instead
Darnell
Department
Services
department policies.
immediately
Johnny
that
he
computer.
they
investigated
frequently
After
viewed
preliminary
reports were verified by the DJJ's Office of Investigations, the
DJJ
terminated
press release.
Plaintiff
and
announced
This case soon followed.
his
termination
in
a
Presently
before
summary judgment.
on
Plaintiff's
(Doc.
claim
Whistleblower Act
claims
under
Jeffery
1983
Timothy
Plaintiff
Johnny
Parole
Plaintiff.
District
DJJ
under
§ 45-1-4,
against
for
the
Georgia
and on Plaintiff's
the
DJJ
Strickland.
and
The
Defendants
Court
GRANTS
BACKGROUND
Darnell Waters
Probation
began his
Specialist
I
County Services Office on March 1, 2007.
Strickland,
motion
motion.
I.
Juvenile
Defendants'
Defendant
O.C.G.A.
§
is
Defendants seek summary judgment
against
42 U.S.C.
and
Court
55.)
("GWA"),
Alligood
Defendants'
the
the
office's
Strickland,
Director
Juvenile
in
Rusty
turn,
Rogers,
with
the
DJJ's
as
a
Evans
At the office, Timothy
Program
Manager,
reported
who
employment
to
reported
supervised
DJJ
Assistant
to
Southeast
Regional Administrator Defendant Jeffrey Alligood.
Plaintiff's position required the supervision of children
between the ages of seven and eighteen to ensure they comply
with probation conditions.
DJJ policy required Plaintiff to log
every contact made with children under his supervision into an
internal
Plaintiff
tracking
failed
system
to
within
meet
required child contacts.
policy
72
hours.
standards
During
in
2009,
documenting
Strickland first discussed this with
Plaintiff in June 2009 and gave him two formal reminders in July
and September.
Strickland placed Plaintiff on decision-making
leave for the repeat documentation violations from January 2010
through January 2011.
His performance
evaluation for July
1,
2009 through June 30, 2010 indicated that Plaintiff did not meet
performance
expectations.
Plaintiff's
evaluation
indicated that
Plaintiff met
he
improvement
needed
regarding
July
2011
performance
expectations,
logging
child
but
contacts
that
within
the 72-hour documentation period.
In
other
2011,
DJJ
made
employees.
following:
coworker,
Plaintiff
(1)
In
that
Malcolm
the
Evans
CSO
his
state
his
vehicle;
particular,
coworker
Tucker,
office;
a
(2)
and
complaints
Plaintiff
Michael
double-barrel
Clark
(3)
concerning
conduct
alleged
Clark
sold
shotgun
in
transported
shotgun
Strickland permitted
by
the
another
front
of
shells
in
Clark
to
view
interview questions for a position he applied for and view other
applicants'
resumes.
complaints,
At
the
time
Plaintiff
made
these
Strickland did not pursue any investigation into the
alleged incidents.
On
December
explained
included
Wednesday,
scheduled
have
his
in
6,
concern
his
case
December
audit
found that
2011,
of
Strickland
over
the
notes.
According
14,
2011,
the
office's
noticed Plaintiff
left
to
Plaintiff
and
descriptions
he
Strickland,
on
Strickland conducted a regularly
cases.
This concerned
had not
with
inadequate
Plaintiff failed to
prior three days.
met
the
Strickland
claims
record any contacts
to
in the
Strickland because he had
office
on Monday or Tuesday
of that week.
left
Because
Plaintiff does
not
work Wednesdays,
Plaintiff with only Thursday and Friday to have any child
contacts.
For
his
part,
Plaintiff
maintains
well-within the allotted 72 hours to document
Ostensibly
had
done
the
his
purpose
time
computer
to
numerous
among
Strickland
created
a
of
and,
"Special
Incident
Report"
Alligood
of
material
Alligood
the
directed
Rogers
Sheila Phillips.
at
his
Plaintiff
approached
web
browsing
websites,
and
and
Rogers
call
DJJ
baconlube.com.
included
direction,
on
print
completed a
then
Plaintiff's
Principal
informed
computer.
Investigator
Phillips drove to the Evans County Services
Georgia
Bureau
Investigation's
investigation.
what
non-work-related
found
Plaintiff's
to
child contacts.
Plaintiff
("SIR").
to
remained
discovered
Rogers's
confiscated
Alligood
he
websites
Office,
forensic audit.
search
and
the
he
Strickland
clickandflirt.com
list
from certain ones
to
Strickland,
others,
that
determining
week,
began
inappropriate
including,
of
that
and
According
history.1
visited
for
with
Plaintiff's
outs
this
of
computer,
and
("GBI")
crime
DJJ Deputy Commissioner Carl
suspend
Plaintiff
with
sent
pay
it
to
lab
for
the
a
Brown instructed
pending
the
Alligood then relayed the suspension directive
to Rogers and Strickland. Plaintiff, who typically does not work
1 The parties dispute whether Plaintiff s computer was unlocked
when Strickland approached it or whether Strickland necessarily asked
Michael Clark for his password.
This dispute is immaterial for this
motion.
on
Wednesdays,
Strickland
came
to
informed
the
him
office
that
that
he
day,
was
at
which
suspended
point
pending
investigation.
Investigator
Phillips
Michael Maybin to
assigned
DJJ
Senior
Investigator
investigate Plaintiff's computer use.
obtained Strickland's
his investigation.
Maybin
SIR and interviewed Strickland concerning
On December 19, Maybin interviewed Plaintiff
and gave him the opportunity to prepare a written statement.
In
his
to
statement,
Plaintiff
claimed
that
he
did
not
subscribe
clickandflirt.com and had only visited the website in an attempt
to
unsubscribe.
acknowledged
Facebook,
During the course of
visiting
Bass
Pro
the
interview,
non-work-related
Shop,
and
Georgia
websites,
Wildlife,
Plaintiff
including
and
a
website
where he viewed a video of how to make a "drain oh bomb."
Concurrently with Maybin's investigation,
GBI Agent Matthew
Heath conducted a
forensic examination of
Plaintiff's
computer.
Heath
summary
excel
detailing
prepared
a
Plaintiff's internet use.
report
and
an
file
Heath determined that
[Plaintiff]
extensively
visited
numerous
non-work related and personal websites, to
include
www.clickandflirt.com,
a
dating
website;
www.baconlube.com,
a
website
advertising
a
www.facebook.com,
sexual
a
social
lubricant;
networking
website;
and
www.theoutdoorstrader.com,
forum
swap
and
to
outdoor
items.
sell
firearms
[Heath]
also
and
a
other
determined
through
[his]
audit that
[Plaintiff]
had
viewed
pictures
sexually
posed
women.
Further, [Plaintiff's] computer use produced
a combined total of ten thousand (10,000)
hits
on
www.theoutdoorstrader.com,
about
eleven (11)
hits on www.baconlube.com,
and
approximately
(448)
(Heath Aff.,
four
hundred
and
forty-eight
hits on www.clickandflirt.com.
Doc.
44,
Ex.
4
S[
6.)
Heath
gave
his
report
to
final
report
of
Maybin and also discussed its finding by phone.
On
January
investigation
Strickland's
25,
that
Maybin
includes
SIR,
memorandum of
2012,
an
prepared
Maybin's
report
Maybin's
interview with
Plaintiff,
report").
Maybin
gave
the
summarizing
report
the
Office
of
Internal
and
Sarah
to
a
Notice,
letter
a
from
(collectively the "DJJ
Phillips
findings
Plaintiff violated DJJ•policies.
Brown
investigation,
Investigative
and the GBI's forensic report
memorandum to
of
Administrative
Strickland,
memorandum
a
and
who
prepared
concluding
a
that
Phillips sent the report and
Draper,
Director
Two
Investigations.
the
days
of
later,
the
DJJ
Draper
informed Commissioner Gale Buckner of the investigation and sent
the DJJ report to DJJ Staff Attorney Andre Castaing.
Draper
later
investigation
Commissioner
met
and
Buckner
with
Commissioner
explained
the
testified
that
Buckner
GBI's
she
Brown and
regarding
forensic
"trusted
the
the
audit.
unbiased
information" the GBI found on the computer.
On
February 7,
2012,
Buckner emailed Draper
regarding the
status of the case. Draper replied to Brown and advised him that
the Office
of Legal
Services was
reviewing the
case.
At the
same time, Castaing prepared a termination review and gave it to
DJJ
General
Counsel
Tracy
Masters.
Castaing
Commissioner Buckner a copy of the review and,
no
one
else
informed
did
Castaing
immediately.
Buckner
her
either.
of
That
her
afternoon,
decision
did
not
to his knowledge,
Commissioner
to
give
terminate
Buckner
Plaintiff
When she made the decision to terminate Plaintiff,
had
not
decision
read
was
the
based
reports
on
principally
that
the
misused his
state
computer
Additionally,
she
generated
what
Draper
investigation
had
to
no
view
by
the
and
DJJ or
GBI;
told
her,
Brown
indicated
that
Plaintiff
sexually explicit
knowledge
of
Plaintiff's
websites.
complaints
regarding his coworkers' policy violations.
After
meeting
with
Commissioner
Buckner,
Castaing
called
Alligood to notify him that Buckner wanted Plaintiff terminated
that
day.
He
termination
then
letter
emailed
for
Alligood
Alligood's
Strickland met with Plaintiff,
and
gave
him
the
and
Strickland
signature.
informed him of his
termination
letter,
which
was
draft
that
Later
a
day,
termination,
signed
by
Alligood.
Two days later,
Office
"no
of
Human
rehire"
Then,
which
on
Resources,
designation
February
was
Sam Clonts,
15,
inappropriate
of
placed
2012,
the
to
local
termination
use
informed Plaintiff by
was
transmitted
Plaintiff's
the Acting Director of the DJJ
on
DJJ
property
employment
issued
media
following
state
his
the
and
letter
a
press
outlets,
that
a
record.
release,
announcing
investigation
violations
of
into
DJJ
policies.
DJJ Public Affairs Officer Jim Schuler testified that
Commissioner Buckner decided to issue a press release concerning
the
on
termination.
information
letter,
later
In drafting
from
the
the press
release,
Commissioner's
office,
Schuler
the
termination
and a synopsis of Strickland's investigation.
learned
about
articles
in
the
newspaper
relied
Plaintiff
regarding
his
termination.
Concurrent
computer use,
to
the
DJJ's
investigation
into
Plaintiff's
Strickland and Alligood also began to
investigate
Plaintiff's allegations of rule violations by his coworkers.
January
13,
2012,
Special
Incident
allegations
the
Report
concerning
investigated these
them.
Each
of
DJJ Office
Investigations
from Strickland
Michael
accused
received
containing
Clark's
gun
but
was
unable
denied
the
purchase.
to
a
Plaintiff's
misconduct,
allegations,
the
of
On
Maybin
substantiate
and
Maybin
found no other evidence to corroborate Plaintiff's allegations.
Plaintiff
against
him
believes
for
that
reporting
Plaintiff initially filed suit
County,
Georgia.
That
Strickland
policy
in the
and
Clark
violations
retaliated
to
Alligood.
Superior Court of DeKalb
suit was voluntarily dismissed,
and the
present litigation alleging retaliation in violation of the GWA
and
denial
2014.
of procedural
due
process was
filed on
February 2,
II.
Summary
genuine
56(a).
the
judgment
dispute
entitled
to
under
the
party,
in
the
appropriate
any
as
a
material
matter
in
[its]
only
fact
of
if
"there
and
law."
(1986),
substantive
Fed.
is
no
movant
the
is
R.
law.
U.S.
242,
248
light
Elec.
favor."
1437
477
the
Matsushita
587
governing
Inc.,
facts
574,
1428,
to
judgment
Liberty Lobby,
U.S.
as
is
STANDARD
Civ.
P.
Facts are "material" if they could affect the outcome of
suit
view
SUMMARY JUDGMENT
most
favorable
Indus.
Co.
Anderson
(1986).
v.
The
Court must
the
non-moving
to
Zenith
v.
Radio
Corp.,
475
and must draw "all justifiable inferences
U.S.
(11th Cir.
v.
1991)
Four
Parcels
(en banc)
of
Real
Prop.,
941
F.2d
(internal punctuation and
citations omitted).
The
Court,
by
motion.
How
moving
to
party
reference
Celotex
carry
Corp.
this
proof at trial.
1115
(11th Cir.
to
has
the
initial
materials
v.
burden
Catrett,
depends
Fitzpatrick v.
1993) .
on
burden
file,
477
on
the
U.S.
who
of
basis
317,
bears
non-movant
has
the
for
323
the
City of Atlanta,
When the
showing
the
(1986).
burden
of
2 F.3d 1112,
the burden of
proof at trial, the movant may carry the initial burden in one
of
two
ways:
by
negating
an
essential
element
of
the
non-
movant's case or by showing that there is no evidence to prove a
fact necessary to the non-movant's case.
Clark, Inc., 929 F.2d 604,
Adickes
v.
S.H.
Kress
606-08
& Co.,
398
9
See Clark v.
(11th Cir. 1991)
U.S.
144
(1970)
Coats
&
(explaining
and Celotex,
477
U.S.
317).
response
in
Before
opposition,
movant has met
genuine
its
issues
judgment
as
of
a
F.3d 248,
254
statement
insufficient.
law.
is
non-movant's
consider
whether
the
showing that there are no
and
that
v.
it
meet
is
City
of
(per curiam).
cannot
the
entitled
Columbus,
to
120
A mere conclusory
the
burden
at
trial
is
929 F.2d at 608.
avoid
indeed
trial,
1997)
evaluate
first
Jones
if—the movant
summary judgment."
proof at
of
fact
non-movant
may
there
can
must
material
Clark,
If—and only
that
it
(11th Cir.
the
Court
initial burden of
matter
that
non-movant
the
summary
a
Id.
carries
its
judgment
material
initial
only by
issue
of
burden,
the
"demonstrating]
fact
that
precludes
When the non-movant bears the burden of
the non-movant must tailor its
method by which the movant carried its
response to
initial burden.
the
If the
movant presents evidence affirmatively negating a material fact,
the
non-movant
withstand
fact
a
"must
directed
sought to be
the movant
shows
non-movant
must
respond
verdict
negated."
with
motion
evidence
at
trial
Fitzpatrick,
sufficient
on
the
2 F.3d at
either
show
that
the
record
material
1116.
an absence of evidence on a material
fact,
contains
to
If
the
evidence
that was "overlooked or ignored" by the movant or "come forward
with
additional
verdict
motion
deficiency."
burden by
evidence
at
Id.
relying
sufficient
trial
at
on
based
1117.
the
on
to
the
withstand
alleged
The non-movant
pleadings
10
or by
cannot
repeating
a
directed
evidentiary
carry
its
conclusory
allegations contained in the complaint.
See Morris v. Ross,
F.2d
Rather,
1032,
1033-34
(11th
Cir.
1981).
the
663
non-movant
must respond with affidavits or as otherwise provided by Federal
Rule
of Civil
Procedure
In
action,
notice
this
of
56.
the
Clerk
Defendant's motion
of
for
the
other
materials
default.
in
(Doc.
45.)
772
F.2d
Wainwright,
therefore,
notice
822,
825
Plaintiffs
the right to file affidavits
opposition,
The
gave
summary judgment and informed
them of the summary judgment rules,
or
Court
and
the
consequences
requirements
(11th
Cir.
of
1985)
Griffith
(per
of
v.
curiam),
are satisfied and the motion is ripe for review.
III.
DISCUSSION
Plaintiff's original complaint named the DJJ as a defendant
for
two
counts.
Count
One
alleged
that
the
DJJ
deprived
Plaintiff of his constitutionally protected reputational liberty
interest
Count
under
Two
violation
(Id.
II
42
U.S.C.
alleged
of
the
43-46.)
that
§
1983.
Defendant
(Compl.,
DJJ
later
1
terminated
Georgia Whistleblower Act,
Plaintiff
Doc.
amended
II
Plaintiff
O.C.G.A.
his
35-42.)
§
in
45-1-4.
complaint
to
add
Defendants Strickland and Alligood to the § 1983 claim.
A. Reputational Liberty Claim
Count One of Plaintiff's Amended Complaint is a procedural-
due-process
claim
constitutionally
for
protected
deprivation
reputational
11
of
liberty
Plaintiff's
interest
under
42
U.S.C.
the
§
1983
against
DJJ directly.
Below,
adequate
state
mandamus
is
summary
claim
law
an
judgment
on
the Court
remedies.
adequate
judgment
against
Defendants
in
all
the
addresses
Because
state
law
Defendants'
Defendants.
alternate
Alligood,
ground
on
Court
of
the
the
finds
Court
Plaintiff's
also
GRANTS
sovereign
and
existence of
Court
remedy,
favor
The
the
Strickland,
that
GRANTS
§
1983
summary
immunity
with
respect to Plaintiff's § 1983 claim against the DJJ.
1. Exhaustion of Adequate State Law Remedies
To
prove:
prove
"(1)
attending
(5)
by
a
a
reputational
a false statement
governmental
the
liberty
(2)
a
plaintiff
of a stigmatizing nature
employee's
governmental
claim,
employer
discharge
(6)
(4)
made
without
a
opportunity for employee name clearing."
Cotton v.
F.3d
present
1328,
Court
1330
assumes
five.
(11th
that
Cir.
Plaintiff
2000).
can
For
satisfy
state remedies
were
available but
the plaintiff
(3)
public
meaningful
Jackson,
216
purposes,
the
elements
Narrowing the focus to the sixth element,
must
one
through
"[i]f adequate
failed to
take
advantage of them, the plaintiff cannot rely on that failure to
claim that
Id.
at
the
state
deprived him
of procedural
due
process."
1331.
Defendants argue that Plaintiff failed to pursue state law
remedies to
clear his name before filing suit.
In particular,
Defendants argue that Plaintiff did not request a name-clearing
12
hearing from the DJJ and did not file a mandamus action in state
court following his
contend
that
termination.
Plaintiff
Relying on Cotton,
possesses
an
adequate
Defendants
state-law
remedy,
requiring summary judgment in their favor.
In Cotton,
receiving
South Georgia College fired the plaintiff after
EEOC
complaints
harassing two coworkers.
requested
a
hearing
and,
subsequently,
then
filed
Circuit
suit
held
to
in
that
hearing,
process claim."
plaintiff
Id. at 1329.
contest
the
federal
charge,
court.
"because
adequate
Id.
has
failed
at 1330.
which
denied.
On
sexually
to
the
College
The plaintiff
appeal,
state
Plaintiff with the
he
with
The plaintiff repeatedly
the Board of Regents
available to provide
clearing
charging
law
the
Eleventh
remedies
were
opportunity for a name
state
a
procedural
In particular,
the Court found
that the plaintiff could have sought a writ of mandamus
Georgia
Superior Court.
Georgia
later
under
confirmed
O.C.G.A.
§
clearing hearing.
Id.
at 1332-33. The Supreme
that mandamus
9-6-20
for
Joiner v.
the
an
available
purpose
of
seeking
702 S.E.2d
194,
in a
Court of
is
Glenn,
due
remedy
a
name-
196
(Ga.
2010). Ordinarily, failure to seek a writ of mandamus "deprives
a
claimant
Cty.,
14,
Ga.,
of
No.
an
actionable
5:13-cv-82,
cause
of
action."
2014 WL 3974668,
Harris
at *3
v.
Pierce
(S.D. Ga. Aug.
2014).
Plaintiff asserts that this is not an ordinary case for two
reasons.
First,
once the press release issued,
13
mandamus would
be
inadequate,
his
ability
directly.
and,
to
second,
request
The
Court
a
because
Plaintiff
name-clearing
disagrees:
both
lacked notice
hearing
reasons
from
are
the
of
DJJ
typical
of
reputational liberty claims.
The Court
release
begins
defeats
established
the
that
with
Plaintiff's
adequacy
of
argument
mandamus
post-publication
that
relief.
the press
It
name-clearing
is
well-
hearings
may
satisfy due process and that a writ of mandamus ordering one is
an
adequate
procedure
1983.
state-law
need
not
Instead,
the
remedy.
provide
state
"[T]o
all
be
relief
procedure
adequate,
available
must
be
the
under
able
state
Section
to
correct
whatever deficiencies exist and to provide with what process is
due."
v.
Cotton,
Wille,
process
132
due
216
F.3d
F.3d at
679
Plaintiff
1331
(11th
to
(citations
Cir.
protect
1998)
his
omitted).
noted
liberty
Harrison
that
"the
interest
only
was
a
^name clearing hearing,'" and that such a hearing "need not take
place
before
termination
information."
Campbell
v.
Id.
Pierce
1984)).
Cotton
"can
held
be
publication."
Harrison,
at
or
683
the
n.9
publication
(first
Cty. , Ga. , 741
itself
either
states
before
that
or
citation
F.2d
the
after
1342,
of
the
omitted)
1345
hearing
termination
Cotton, 216 F.3d at 1330 (emphasis added)
132 F.3d at 683 n.9).
(citing
(11th Cir.
name-clearing
the
damaging
or
(citing
Here, Plaintiff was due a name-
clearing hearing, not the non-issuance of the press release
14
Read
together,
Cotton
and
Harrison
stand
for
the
proposition that a post-publication mandamus action to receive a
name-clearing
hearing
Plaintiff has
or
even
not
an
adequate
supported his
assuming
publication
is
that
context.
remedy.
position with any case
mandamus
Cotton
state-law
is
inadequate
controls
this
case
in
holding
the
and
post-
the
Court
finds that mandamus is an adequate remedy.
Having found that mandamus is an adequate state-law remedy,
the
Court
does
not
address
Plaintiff's
argument
that
he
should
be excused from asserting an otherwise adequate state-law remedy
because
the
DJJ
did
clearing hearing.
Because
not
notify
him
of
his
right
to
a
name-
See id. at 1332 n.3.
"mandamus
would
be
an
adequate
remedy
to
ensure
that Plaintiff was not deprived of his due process rights . . .,
Plaintiff
has
failed
to
state
a
claim
for
a
procedural
process violation . . . ." Cotton, 216 F.3d at 1333
omitted).
The
Court
favor on Plaintiff's
§
GRANTS
summary
judgment
in
due
(citations
Defendants'
1983 claims.
2. Sovereign Immunity
Plaintiff's
§
additional reason:
1983
claim
against
the
DJJ
fails
for
an
Plaintiff pled the claim against a sovereign
state and not a "person" under § 1983.
Defendants
did
not
mention
this
claim
in
their
opening
brief because they believed Plaintiff abandoned the claim in his
15
brief
opposing
Br.,
Doc.
Defendants'
52
at
17.)
motion
to
There,
dismiss.
Plaintiff
(Def.'s
Reply
acknowledged
that
"Defendant Georgia DJJ cannot be liable under his § 1983 claim."
(PL's
Opp.
Br.,
response brief
Defendant
DJJ
apparently
Doc.
claims
in
Eleventh Amendment
Defendants
that
its
because
argue
13
at
4.)
Nevertheless,
"Defendants'
analysis
of
Defendants
the
Motion does
42
U.S.C.
believe
Immunity."
(Doc.
that
the
DJJ
is
claim
for
50
equitable
Plaintiff's
DJJ
at
immune
not
1983
§
is
13
claim,
entitled
n.4.)
even
include
In
from
to
reply,
claims
for
equitable relief.
Plaintiff's
the
DJJ,
a
not
one
of
state
its
[Plaintiff]
has
officials,
the
prospective
Authority,
v.
Pugh,
department
officials
sued an
relief."
713
438
in
an
781,
the
v.
1523
782
brought
Jekyll
(11th Cir.
(per
rather
bars
against
immunity
capacity.
state
also
(1978)
is
sovereign
official
Amendment
Fouche
F.2d 1518,
U.S.
possessing
agency of
Eleventh
relief
"Because
than
state
injunctive
Island
1983)
and
or
State-Park
(citing Alabama
curiam)).
judgment is therefore GRANTED in Defendant DJJ's
Summary
favor on this
claim.
B. Georgia Whistleblower Act Claim
Count
the
DJJ
two
of
Plaintiff's
terminated
Whistleblower
Act,
original
Plaintiff
O.C.G.A.
in
§
violation
45-1-4.
16
Complaint
of
Georgia
alleged
the
that
Georgia
courts
have
applied
under
the
the
(Ga. Ct.
McDonnell
GWA.
App.
Douglas
Touhy v.
framework
to
City of Atlanta,
retaliation
771
S.E.2d
claims
501,
504
2015).
Under the McDonnell Douglas framework, the
plaintiff must
first make a prima
facie
case.
If the plaintiff makes a prima facie
case, the burden of production shifts to the
employer
to
articulate
some
legitimate,
nondiscriminatory reason for the employment
decision.
If
the
employer
successfully
meets the burden of production,
then the
burden shifts back to the plaintiff to show
that each proffered reason was pretext.
Id.
a
at
505.
prima
Defendants argue that Plaintiff cannot demonstrate
facie
case
and
cannot
demonstrate
that
their
nondiscriminatory reason to terminate Plaintiff was pretextual.
1. Prima Facie Case
To prove a prima facie retaliation claim,
a plaintiff must
show that "(1) he was employed by a public employer;
a protected disclosure or objection;
employment
between
action."
action;
the
and
protected
(4)
there
activity
(3)
523
(Ga. Ct. App.
he made
he suffered an adverse
is
some
and
the
causal
adverse
Albers v. Ga. Bd. of Regents of Univ.
S.E.2d 520,
(2)
Sys.
relationship
employment
of Ga.,
7 66
2014).
Defendants only challenge the fourth element of the prima
facie
case:
the
existence
of
a
causal
typical whistleblower retaliation claim,
relationship.
In
a
to establish a causal
relationship a plaintiff must show that the decision maker knew
that the plaintiff engaged in protected whistleblowing activity.
17
Forrester v. Ga.
Ct. App.
Dept.
2011) .
Commissioner
fired him.
of Human Servs.,
Here,
Buckner
Instead,
however,
knew
of
708 S.E.2d 660,
670
Plaintiff does not argue that
Plaintiff s
complaints
when
investigation
termination.
she
Plaintiff argues that Commissioner Buckner
was the "cat's paw" of Defendants Strickland and Alligood,
biased
(Ga.
is
Defendants
the
true
insist
cause
that
the
of
GWA
whose
Plaintiff's
does
not
allow
cat's-paw causation because the GWA requires "but-for" causation
and
does
See
not
Sims
follow
v.
MVM,
2013) (distinguishing
causation
former
Title
under
Inc.,
whether
ADEA
requires
VII's
from
motivating-factor
704
F.3d
cat's
Title
"but-for"
paw
VII
1327
may
on
causation
the
and
causation.
(11th
be
used
to
grounds
the
Cir.
show
that
latter
the
only
"motivating factor").
Whether
the
cat's-paw
theory
of
causation
is
available
under the GWA is a question of law that appears to be
of first impression.2
2 Powell
5791563
v.
For present purposes, the Court assumes—
Valdosta City Sch.
(M.D. Ga.
Nov.
6, 2014)
paw theory under the GWA.
causation
was
available
(Ga. App.
Dist., No.
7:13-cv-53,
2014 WL
is the only case applying the cat's-
In Powell, the court assumed that cat's-paw
under
Title VII, which Georgia
link element.
a matter
the
GWA because
it
is
available
under
courts have looked to regarding the causal
Id^ (citing Freeman v.
Smith,
750 S.E.2d 739,
741-43
2013) .
In
Sims
v.
MVM,
Inc.,
704
F.3d
1327
(11th
Cir.
2013),
the
Eleventh Circuit articulated one possible explanation for not applying
a cat's-paw theory under the GWA.
under the
Sims concerned a retaliation claim
American Disabilities Act.
The
court distinguished claims
under the ADEA from the USERRA retaliation claims at issue in Staub v.
Proctor
Hosp.,
explained,
562
U.S.
411,
421
(2011).
requires "but-for" causation,
18
The
ADEA,
the
court
while USERRA and Title VII
but
does
not
find—that
cat's-paw causation
the GWA and analyzes Plaintiff's claim.
that
Plaintiff
cat's-paw
cannot
theory,
make
the
a
Court
prima
does
is permitted under
Because the Court finds
facie
not
case
decide
even
whether
under
a
cat's-paw
causation is available under the GWA.
In
the
Title VII,
context
when
recommendation
1328,
decisionmaker
paw."
decisionmaker
a
non-decisionmaker
complaint."
under
the
1332
acts
(11th
as
the
followed
without
Stimpson v.
Cir.
1992).
biased
FMLA
and
City
In
a
biased
independently
of
Tuscaloosa,
those
cases,
non-decisionmaker's
the
"cat's
"But where the ^decisionmaker conducts his own evaluation
and makes an independent decision,
taint
claims
a
from
investigating the
F.3d
retaliation
the Eleventh Circuit has held that "causation may be
established
186
of
of
a
biased
subordinate
his decision is free of the
employee.'"
Caldwell
v.
Clayton
both require retaliation to be only a motiving factor.
Sims, 704 F.3d
at 1335.
The court found that cat's-paw causation was not allowed in
"but-for" statutes and held that it was not available under ADEA.
at
Id.
1336.
Defendant
causation.
argues
See
that
O.C.G.A.
the
GWA
45-1-4(d)(2)
similarly
("No
requires
public
but-for
employer
shall
retaliate against a public employee for disclosing a violation"
(emphasis added)).
The Supreme Court of Georgia and Court of Appeals
of Georgia appear to have never directly addressed whether but-for or
motivating
factor
causation
is required
under the
GWA,
much
less
whether cat's-paw causation is allowed.
In this case, the only way Plaintiff can establish a causal
relationship is through a cat's-paw theory.
The Court assumes that
theory is allowed, but finds that it is not satisfied on these facts.
19
Cty.
Sch.
curiam)
Dist.,
(quoting
1262,
1270
cat's
paw
behind
604
F.
Pennington
(11th Cir.
theory
the
App'x
855,
v.
City
2001)).
must
(11th Cir.
of
the
other
Foster v.
2013)
party's
Thomas Cty.,
that
and
decision
927
(quoting Stimpson,
In
Staub
v.
Supreme
Court
(per
261
F.3d
Huntsville,
the
not
discriminatory
the
underlying
misconduct identified in the recommendation,
of
2015)
"A plaintiff operating under a
'prove
recommendation,
861
to
employee
was an actual cause
terminate
F. Supp.
animus
2d 1350,
the
employee.'"
1360-61
(M.D.
Ga.
(2011),
the
186 F.3d at 1331).
Proctor
explained
Hosp.,
the
562
U.S.
411,
relationship
421
between
independent
investigations and facts provided by biased supervisors:
[I]f the independent investigation relies on
facts provided by the biased supervisor—as
is
necessary
in
any
case
of
cat's-paw
liability—then the employer (either directly
or through the ultimate decisionmaker) will
have effectively delegated the factfinding
portion of the investigation to the biased
supervisor.
Id. at 421.
not
In this way,
delegate
between
the
fact
an independent investigation that does
finding
cuts
non-decisionmaker's
off
the
biased
causal
relationship
investigation
and
the
termination.
The
knew
of
Court
assumes
Plaintiff's
that
Strickland
complaints
and
Alligood,
regarding
conducted a biased initial investigation.
rule
who
each
violations,
The question becomes
whether Maybin and Heath's investigations, the contents of which
20
were reported to
Commissioner Buckner by Brown and Draper,
were
similarly tainted by their reliance on facts relayed to them by
Strickland
and
Alligood
or
whether
their
factfinding
was
sufficiently independent.
Maybin's DJJ report included the following:
investigation
Strickland;
to
created
(3)
Plaintiff;
and
facts
(4)
(2)
(5)
a
letter
report.
are
the
from
The
the
of
a report of
SIR
created
notice
by
directed
interview between Maybin
Strickland;
SIR and
result
the
investigative
a memorandum of
computer
which
Maybin;
an administrative
Plaintiff;
forensic
by
(1)
and
(6)
Strickland's
Strickland's
the
GBI's
email
relay
assumedly
biased
investigation.
But Maybin's report includes two documents that
are
the
assuredly
memorandum of
result
Maybin's
of
independent
interview with
factfinding:
Plaintiff,
and the
the
GBI's
forensic report.
In the
of
the
facts
instance,
hunting
did,
interview,
relayed
Plaintiff
and
insisted
that
unsubscribe
admissions
contest
his
from
in
of the facts
Maybin
in
that
he
interview
websites
to
visited
amount
to
emails.
to
Plaintiff
baconlube.com
independent
contained in Strickland's SIR.
For
devoted
clickandflirt.com
unsolicited
21
SIR.
outdoortrader.com.
ever
visit
website's
Strickland's
visiting
including
only
the
the
to
admitted
firearms,
however,
Plaintiff acknowledged the truth of most
was
and
to
Plaintiff's
verification
The GBI's report is also independent.
In mid-January 2012,
Heath conducted the forensic audit of Plaintiff's state computer
and
summarized
spreadsheet.
social
had
to
audit,
have
sites,
nuclear
in
Doc.
Heath "was
used
a
report
44,
Ex.
access
informative documents
of
the
4
SI
Ex.
assumedly
A
at
biased
dating
The
Prior
to
computer was
websites
online
1.)
Heath,
fact
from
of
therefore,
Strickland's
tools
such
as
"Encase
which include the
v6,
IEF
v4,
and
(Id.)
Encase
consistent
5. )
Heath then conducted his investigation using the
software
NetAnalysis."
associated
detailing the usage
standard procedure to collect evidence,
of
and
informed that the
to
(Heath Aff.,
investigation.
use
Aff.,
been
and
bombs."
knowledge
GBI's
findings
(Heath
beginning the
suspected
his
and NetAnlysis
with
that
reports
described
in
towards
internet
radio
hunters
service,
non-work-related
and
were
gun
(Id.)
activity
SIR.
Heath's
"a social forum website
owners,"
among the
websites.
internet
Strickland's
report notes that theoutdoorstrader.com,
targeted
found
and
most
big983.com,
an
frequently visited
Although
the
excel
spreadsheet containing the entire results does not appear to be
in the
record,
Heath
states that he
theoutdoorstrader.com,
approximately
448
11
hits
personal internet activity.
hits
on
found over
on
hits
baconlube.com,
clickandflirt.com,
(Heath Aff. SI 6.)
22
10,000
among
on
and
other
Additionally,
the
To
visual
Heath
images
viewed
do
this,
Encase
files,
which
includes
browsing but
Encase
of
report
sexually
for
not
the
searches
images
determine
internet
browsing.
computer's
a
to
Plaintiff's
during
Encase
temporary
that
were
software
viewed
intentionally saved by a
indicated
posed
dating,
used
that
women,
hunting,
Plaintiff's
Facebook
and
during
computer's
files
profiles,
firearm
internet
internet
user.
included
and
The
images
advertisements
websites.
Heath
also
discovered pictures of deer and firearms that were intentionally
saved to Plaintiff's "My Pictures" folder.
that
no
pornographic
images
bombs were discovered.
or
images
(Heath Aff.,
The report indicated
depicting
Ex.
explosives
or
A at 1.)
In her memorandum to Brown and Draper attached to Maybin's
investigation,
Sheilla
forensically examined
found
that
he
Phillips
[Plaintiff's]
"visited
numerous
explained
that
"Heath
state desktop computer" and
non-work
related
and
personal
websites" and "viewed pictures of sexually posed women in under
garments
and
bikinis
ClickandFlirt.com."
Plaintiff
question,
the
caveat
that
unsubscribe.
his
on
(Doc. 44, Ex. 27 at 18.)
explained that
with
extensively
admitted to viewing
exception
only
Phillips's
of
visit
to
Facebook
Further,
the
baconlube.com
memorandum,
in
with
clickandflirt.com
introductory
Phillips
websites
and
and
the
was
to
therefore,
summarizes the two key pieces of independent investigatory work
performed by Maybin and Heath: the interview with Plaintiff and
23
the
forensic
affidavit
clear
audit
and
that
of
his
deposition
it
was
state
computer.
testimony,
the
facts
Finally,
Commissioner
discovered
in
in
Buckner
the
her
makes
independent
investigation conducted by Heath, as relayed to her by Brown and
Draper, which led her to terminate Plaintiff.3
Because
independent
determination
that
and
factfinding
Commissioner
because
investigation,
relationship
established.
Plaintiff
the
The
Buckner
Court
necessary
visited
finds
for
Court,
a
led
the
prima
therefore,
websites
relied
that
to
on
the
facie
GRANTS
the
the
in
question,
independent
required
case
same
causal
cannot
summary judgment
be
in
favor of Defendant DJJ on Plaintiff's GWA retaliation claim.
IV.
As
discussed,
the
CONCLUSION
Court
GRANTS
summary judgment on all counts.
Defendants'
motion
for
The Clerk SHALL enter judgment
3 The Court notes that Plaintiff disputes whether he visited
clickandflirt.com more than on a single occasion to unsubscribe.
Plaintiff does not, however, dispute that Commissioner Buckner relied
on Draper and Brown's description of Heath's investigation that found
Plaintiff
did
visit
the
therefore, relied on
websites were visited
website
more
often.
Commissioner
Buckner,
Heath's independent factfinding
into what
on the state computer in question.
It is
possible Heath's investigation was inaccurate, as Plaintiff maintains,
and
that
Commissioner
Buckner's
decision
was
a
mistake.
But
retaliation laws do not check to see whether the decisionmaker made a
substantively correct decision;
discrimination
laws,
ensures
the GWA,
that
like most retaliation and
a decisionmaker
does
not
take
an
adverse action based on improper reasons.
See Brown v. Am. Honda
Motor Co., 939 F.2d 946, 951 (11th Cir. 1991) (a defendant may act
"for a good reason, a bad reason, a reason based on erroneous facts,
or for no reason at all, as long as it [] is not for a discriminatory
reason.").
24
in
favor
of
Defendants
and
against
Plaintiff
and
CLOSE
this
case,
ORDER ENTERED at Augusta,
Georg ia,
this
(4^
*^^
day of April,
2016.
HONORAB]*BOlr RANDAL HALL
UNITED
STATES
SOUTHERII
25
DISTRICT
DISTRICT
JUDGE
OF GEORGIA
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