Edward Tuohy v. City of Atlanta

THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

March 30, 2015

In the Court of Appeals of Georgia
A14A2148. TUOHY v. CITY OF ATLANTA et al.

BOGGS, Judge.

Edward Tuohy filed a complaint against the City of Atlanta, Mayor Kasim

Reed, and the Atlanta City Council (collectively “the City”), alleging that he was

terminated in retaliation in violation of the Georgia Whistleblower Act, OCGA § 45-

1-4. The trial court granted summary judgment in favor of the City, and Tuohy now

appeals. For the following reasons, we affirm.

On appeal from the grant of summary judgment, this court applies a de novo

standard of review. Higginbotham v. Knight, 312 Ga. App. 525, 526 (719 SE2d 1)

(2011). Summary judgment is proper when there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law. OCGA

§ 9-11-56 (c). We must view the evidence, and all reasonable inferences drawn
therefrom, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen.

Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewed, the evidence showed that Tuohy was hired in March 2011 as

treasurer for the City working for the Chief Financial Officer. In July 2011, Mazyck

Advisors submitted to the City invoices totaling $51,882.28 for advisory services. On

August 8, 2011, the chief financial officer for the City, Joya DeFoor, sent Tuohy an

email instructing him to pay the entire invoice “from the remaining cost of issuance

funds. Your staff should be able to determine how much in COI is remaining from the

bank statement without contacting Watershed.” When Tuohy determined that there

were no Watershed funds to pay the invoice, he emailed DeFoor and asked her to

advise him which source he should pay them from. Tuohy stated that he “felt the fact

that the wire was not in its entirety a Watershed wire, I knew that the invoices, from

looking at the invoices, supporting documentation of the wire that it was for more

than just Watershed.” Tuohy stated further that he knew that three other City

departments benefitted from the contractor’s work and that the proper procedure

would be to only charge that portion to Watershed that benefitted Watershed.

On August 25, 2011, Tuohy wired $51,882.28 to Mazyck Advisors but did not

charge the amount to the Department of Watershed. He asserted that in September

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2011, he “received a second email from Ms. DeFoor instructing him to charge the

entire invoice to the Department of Watershed and to not report this to the Financial

Officer of that Department.”1 Tuohy discussed his concerns with John Gaffney, the

City Controller, who testified that Tuohy believed that how he was instructed to

charge the invoice “may be illegal.” Gaffney considered the request to charge an

invoice to a department without that department’s knowledge to be unethical, but

expressed no opinion regarding whether it was illegal, and advised Tuohy to take this

concern to the ethics board or consult with the law department.

In October 2011, Tuohy still had not charged the invoices to the Department

of Watershed and contacted his direct supervisor, Stefan Jaskulak, Deputy CFO for

the City, to inform him that he objected to DeFoor’s instructions and would not

charge the wire to Watershed as directed.2 A week later, on October 12, 2011, the

City terminated Tuohy’s employment. The next day, Tuohy met with City officials

and was told that he had been fired for “performance issues.”

1
While Tuohy’s verified complaint averred that he received this email, he
testified in his deposition that he did not have a copy of this communication because
it was “on my desk, at the City of Atlanta.”
2
Jaskulak testified that Tuohy merely inquired how to process the invoice and
did not express concern about the instructions he received from DeFoor.

3
 In March 2012, Touhy filed a complaint under the Georgia Whistleblower

Statute asserting that he was terminated in retaliation “because he objected to

performing an improper illegal financial transaction.” He maintained that he believed

DeFoor’s instructions to charge the entire invoice to the Department of Watershed,

particularly without notifying that department’s CFO, was improper and “probably

illegal,” and that he confirmed that it was in violation of City policies and procedures.

In April 2012, the City’s Department of Human Resources issued a report of its own

investigation of the matter, and concluded that there was insufficient evidence to

show that Tuohy spoke with Jaskulak or DeFoor regarding what he believed to be an

illegal or unethical directive, and insufficient evidence that his termination was based

on his alleged whistleblowing activity.

The City moved for summary judgment on the ground that Touhy failed to

establish a prima facie case for retaliation. Specifically, it asserted that Tuohy did not

question the propriety of DeFoor’s instructions concerning the invoice, and that the

manner of payment of the invoices was not in violation of the City Code, nor in

violation of Governmental Accounting Standards Board Standards or Generally

Accepted Accounting Principle. The City also contended that Touhy was terminated

for poor work performance, noting that he erroneously approved duplicate payments

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of “approximately four or five million dollars,” and that he used a City telephone to

make threatening phone calls to the husband of a woman with whom he had

previously been in a relationship.

In granting summary judgment in favor of the City, the trial court applied the

framework set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792, 804 (93

SCt 1817, 36 LE2d 668) (1973), and determined that Tuohy failed to establish a

prima facie case of retaliation, and in any case, did not show that the reasons given

for his termination were pretextual. We agree with the latter conclusion and affirm

the grant of summary judgment. See Georgia-Pacific v. Fields, 293 Ga. 499, 504 (2)

(748 SE2d 407) (2013) (appellate court may affirm the grant of summary judgment

when it is right for any reason).

1. Under Georgia’s whistleblower statute, a public employer may not retaliate

against a public employee for disclosing “a violation of or noncompliance with a law,

rule, or regulation to either a supervisor or a government agency,” or “for objecting

to, or refusing to participate in, any activity, policy, or practice of the public employer

that the public employee has reasonable cause to believe is in violation of or

noncompliance with a law, rule, or regulation.” OCGA § 45-1-4 (d) (2) and (3).

“Retaliate” or “retaliation” is defined as

5
 the discharge, suspension, or demotion by a public employer of a public
employee or any other adverse employment action taken by a public
employer against a public employee in the terms or conditions of
employment for disclosing a violation of or noncompliance with a law,
rule, or regulation to either a supervisor or government agency.

OCGA § 45-1-4 (a) (5).

We held in Forrester v. Georgia Dept. of Human Svcs., 308 Ga. App. 716 (708

SE2d 660) (2011) (physical precedent only), that “the McDonnell Douglas

burden-shifting analysis used in Title VII retaliation cases is appropriately utilized

in the context of evaluating whether a state whistle[ ]blower claim is subject to

summary adjudication.” (Emphasis in original.) Id. at 721 (1). While Forrester is

physical precedent only, we agree that the McDonnell Douglas analysis should be

employed for whistleblower claims in Georgia brought pursuant to OCGA § 45-1-4

(d).3 See Freeman v. Smith, 324 Ga. App. 426, 428-429 (1) (750 SE2d 739) (2013)

(noting that McDonnell Douglas framework was approved in the physical precedent

of Forrester, but court not required to decide whether the framework should be

adopted because under any standard no evidence of adverse employment action);

3
We note that Georgia courts have adopted this framework to analyze state
discrimination cases. See Bailey v. Stonecrest Condo Assn., 304 Ga. App. 484, 488
(1) (696 SE2d 462) (2010).

6
Caldon v. Bd. of Regents &c., 311 Ga. App. 155, 159 n.6 (715 SE2d 487) (2011)

(acknowledging that no Georgia court has explicitly set forth the standard for

analyzing when summary judgment appropriate on whistleblower claims but not

expressly adopting McDonnell Douglas framework); but see Albers v. Georgia Bd.

of Regents &c., 330 Ga. App. 58 (766 SE2d 520) (2014) (analyzing only prima facie

elements of whistleblower claim as ruled upon by trial court with no discussion of

McDonnell Douglas burden-shifting analysis).4

4
As noted in Freeman, supra, not all states have adopted the McDonnell
Douglas framework. See id. at 429 (1). But our research has discovered at least 34
states that have adopted it for cases involving violations of state law and allegations
of discrimination or retaliation, including whistleblower claims. See Raad v. Alaska
State Comm. for Human Rights, 86 P3d 899, 904 (III) (B) (Alaska 2004); Johnson v.
Windstream Communications, 2012 Ark. App. 590 (2012); Yanowitz v. L’Oreal USA,
116 P3d 1123, 1042 (II) (Cal. 2004); Mele v. City of Hartford, 855 A2d 196, 206 (I)
(Conn. 2004); Gary v. R.C. Fabricators, No. 11C-12-208, at *67-68, 2014 Del.
Super. LEXIS 420 (De. Super. Ct., July 30, 2014); Bryant v. District of Columbia,
102 A3d 264, 267-268 (II) (D.C. 2011); St. Louis v. Florida Intl. Univ., 60 So3d 455,
458-459 (Fla. Dist. Ct. App. 2011); Stucky v. Brown, No. 26463, 2007 Haw. LEXIS
157, at *37 (XIV) (Haw., May 31, 2007); Frogley v. Meridian Joint School District
No. 2, 314 P3d 613, 619 (V) (A) (Idaho 2013); Unger v. Sirena Div. of Consolidated
Foods Corp., 377 NE2d 266, 272 (Ill. App. Ct. 1978); Fuller v. Allison Gas Turbine
Div. &c, 670 NE2d 64, 68 (II) (Ind. 1996); White v. Tomasic, 69 P3d 208, 211 (Kan.
Ct. App. 2003); Kentucky Dept. of Corrections &c. v. McCullough, 123 SW3d 130,
133-134 (II) (A) (Ky. 2003); Burnett v. East Baton Rouge Parish School Bd., 99 So3d
54, 59 (La. Ct. App. 2012); DiCentes v. Michaud, 719 A2d 509, 514 (IV) (Me. 1998)
(whistleblower act case); Dept. of Nat. Resources v. Heller, 892 A2d 497, 510-511
(Md. 2006) (whistleblower act case); Jackson v. Suffolk County Sheriff’s Dept., No.
08-P-470, 2009 Mass. App. Unpub. LEXIS 363, at *1 (Mass. App. Ct., April 9, 2009)

7
 Under the McDonnell Douglas framework, the plaintiff must first
make a prima facie case of retaliation. 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 this burden of production, then the
burden shifts back to the plaintiff to show that each proffered reason was
pretext.

(whistleblower act case); Debano-Griffin v. Lake County &c., 828 NW2d 634, 638
(III) (Mich. 2013); Grundtner v. Univ. of Minn., 730 NW2d 323, 329 (I) (Minn. Ct.
App. 2007) (whistleblower act case); Helvering v. Union Pacific R. Co., 703 NW2d
134, 146-154 (Neb. Ct. App. 2005); Appeal of Seacoast Fire Equip. Co., 777A2d
869, 872 (I) (N.H. 2001) (whistleblower act case); Winters v. North Hudson Regional
Fire &c., 50 A3d 649, 662 (V) (N.J. 2012) (whistleblower act case); Juneau v. Intel
Corp., 127 P3d 548, 551 (N.M. 2005); Nofal v. Jumeirah Essex House, No.
5627/2011, 2013 N.Y. Misc. LEXIS 2289, at *13 (B) (N.Y. App. Div., May 14,
2013); Manickavasagar v. N. C. Dept. of Public Safety, 767 SE2d 652, 659 (III) (B)
(N.C. Ct. App. 2014) (whistleblower act case); Heng v. Rotech Medical Corp., 720
NW2d 54, 60 (III) (N.D. 2006) (whistleblower act case); Kudla v. Olympic Steel, No.
101104, at *66-67 (III) (B), 2014 Ohio App. LEXIS 5003 (Ohio Ct. App., November
20, 2014); Uber v. Slippery Rock Univ. of Penn. &c., 887 A2d 362, 367 (Pa. Commw.
Ct. 2005); Shoucair v. Brown Univ., 917 A2d 418, 426-427 (II) (B) (R.I. 2007); Lord
v. Hy-Vee Food Stores, 720 NW2d 443, 449-450 (B) (S.D. 2006); Brown v. CB&I,
Inc., No. 09-12-00521-OCGA §, at *17 (IV) (B) (2), 2014 Tex. App. LEXIS 505
(Tex. Ct. App., January 16, 2014); Viktron/Lika Utah v. Labor Comm., 38 P3d 993,
995 (Utah Ct. App. 2001); Griffis v. Cedar Hill Health Care Corp., 967 A2d 1141
1145-1146 (I) (Vt. 2008); Davis v. The Washington State Patrol, No.71736-7-I, at
*26, 2014 Wash. App. LEXIS 2438 (Wash. Ct. App., October 13, 2014).
The McDonnell Douglas framework is also used for federal court actions
brought pursuant to the Whistleblower Protection Act, 5 USCS § 2302. See Ivey v.
Paulson, 222 Fed. Appx. 815 (11th Cir. 2007).

8
(Citations and punctuation omitted.) Adams v. City of Montgomery, 569 Fed. Appx.

769, 772 (11th Cir. 2014); see Forrester, supra, 308 Ga. App. at 722 (1).5

2. Prima Facie Case of Retaliation. Because we hold below that Tuohy has

failed to satisfy his burden of establishing that the proffered reason for his termination

was pretextual, we need not address whether he established a prima facie case of

retaliation.

3. Burden-shifting Analysis. Assuming that Tuohy had established a prima face

case, the burden of production shifts to the City to articulate some legitimate,

nondiscriminatory reason for the employment decision. Adams, supra, 569 Fed. Appx.

at 772.

(a) The City asserted that Tuohy was terminated from employment because of

“performance issues.” Jaskulak asserted in his deposition that the decision to

terminate Tuohy was communicated to him in July 2011 by DeFoor, and that Tuohy

was “not getting up to speed quick enough” and “was slow in providing deliverables.”

Jaskulak explained further that Tuohy was not terminated in July, however, because

5
We acknowledge the concerns raised in Freeman, supra, regarding the
potential difficulties in applying this framework. 324 Ga. App. at 429 (1). We
therefore take this opportunity to encourage trial courts to be mindful not to weigh
evidence or assess the credibility of witnesses in applying the framework on
whistleblower claims at the summary judgment stage.

9
he told “the CFO that [he] wanted a chance to work with Tuohy, talk to him, and

hopefully bring him up to speed.” He explained further that when Tuohy was

ultimately terminated in October 2011, it was because Tuohy was “slow on

deliverables” and that he in September 2011 erroneously approved “two sets of

duplicate wires,” which the City asserted in its brief on motion for summary judgment

totaled between four and five million dollars.

Jaskulak, in deposition and in his statement to the City, asserted that in early

October 2011, he received a call from the husband of Tuohy’s former girlfriend who

alleged that Tuohy had called and threatened him from a City phone number. The

husband told Jaskulak that he contacted the police about Tuohy’s threats, and

Jaskulak obtained a copy of the police report. The man also provided a statement to

the City during its investigation in which he asserted that he had called Tuohy on

October 5, 2011, to request that Tuohy stop calling his wife. Tuohy returned the

phone call on the same day, and during the course of the conversation told the

husband, “I will kill you,” “I will send you back to your country in pieces,” and “I

know a lot of people in high places because of my job in government.” Jaskulak

testified that this incident may have been “the straw that broke the camel’s back”

resulting in Tuohy’s termination.

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 “The employer need not persuade the court that its proffered reasons are

legitimate, as its burden is merely one of production, not proof. This intermediate

burden is exceedingly light.” (Citations and punctuation omitted; emphasis supplied.)

Burgos-Stefanelli v. United States Dept. of Homeland Security, 410 Fed. Appx. 243,

247 (III) (11th Cir. 2011).6 We therefore hold that the evidence presented by the City

here satisfies its burden to articulate some legitimate, nondiscriminatory reason for

the Tuohy’s termination. See id.

(b) Because the City has met its burden regarding its proffer of a

nondiscriminatory reason for Tuohy’s termination, the burden shifts for Tuohy to

show that each proffered reason was a pretext. Adams, supra, 569 Fed. Appx. at 247

(III).

In discussing this issue, [the Georgia] Supreme Court has held
that pretext is established by a direct showing that a discriminatory
reason more likely motivated the [defendant] or by an indirect showing
that the [defendant’s] explanation is not credible. To avoid summary
judgment, a plaintiff must present significantly probative evidence on

6
We find the Eleventh Circuit cases using the McDonnell Douglas framework
to analyze federal discrimination and retaliation cases persuasive. See McKeen v.
FDIC, 274 Ga. 46, 48 n.1 (549 SE2d 104) (2001) (“While this Court is not bound by
decisions of the Eleventh Circuit construing federal law, they are persuasive.”).

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 the issue of pretext because the plaintiff has the burden of establishing
pretext.

(Citations and punctuation omitted.) Bailey v. Stonecrest Condo Assn., 304 Ga. App.

484, 491 (1) (b) (696 SE2d 462) (2010). And the Eleventh Circuit has articulated the

burden of establishing pretext as follows:

A reason is not pretextual unless it is shown both that the reason was
false, and that discrimination or retaliation was the real reason. If the
proffered reason is one that might motivate a reasonable employer, an
employee must meet that reason head on and rebut it, and the employee
cannot succeed by simply quarreling with the wisdom of that reason, or
showing that the decision was based on erroneous facts.

(Citation and punctuation omitted.) Tarmas v. Secretary of the Navy, 433 Fed. Appx.

754, 761 (III) (B) (11th Cir. 2011); see Bennett v. Chatham County Sheriff Dept., 315

Fed. Appx. 152, 159 (II) (11th Cir. 2008).

Under either directive, Tuohy has failed to show that the reason for his

termination was pretextual. Tuohy argues that the termination was pretextual because

the City offered him no reason for its decision on the day he was terminated, provided

no documentary evidence from his personnel file to support its assertion that it

terminated him for performance issues, and did not assert until April 2012 that

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another proffered reason for his termination was the telephone complaint. Even if

these assertions are true, they do not “present a basis for the disbelief of the [City’s]

overall justification.” (Citation and punctuation omitted; emphasis in original.)

Blockum v. Fieldale Farms Corp., 275 Ga. 798, 802 (4) (573 SE2d 36) (2002). The

City informed Tuohy the day after his termination that he was terminated for

performance reasons, and even without the telephone complaint, the improper

approval of duplicate wires occurred only weeks prior to his termination. Tuohy’s

assertions are not a direct showing that a discriminatory reason more likely motivated

the City. See Benjamin v. SNF Holding Co., No. 14-13218, 2015 U.S. App. LEXIS

3764, at *10-11 (III) (11th Cir., March 11, 2015) (summary judgment proper where

employee failed to present evidence that employer was motivated by discriminatory

intent).

Moreover, Tuohy has failed to make an indirect showing that the City’s

explanation is not credible, or, as stated by the Eleventh Circuit, failed to rebut the

reasons given by the City for his termination. See Tarmas, supra, 433 Fed. Appx. at

761 (III) (B). To the contrary, he conceded that he was responsible for a duplicate

wire transfer. He also admitted calling the husband of a former girlfriend, although

he could not recall whether he called from a City phone number, and that he told the

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husband “that he could be deported for” leaving him threatening voicemails. Tuohy

admitted that he was angry during the conversation, but denied threatening the

husband. This evidence, taken in its totality, fails to rebut the reasons given by the

City for his termination. See Benjamin, supra (where employee was discharged for

deficient work performance, employee did not meet the reason head on and cannot

succeed by merely “quarreling with the wisdom” of the employer’s reasons).

Tuohy’s assertions here are insufficient to raise a genuine issue of material fact

regarding whether the City’s reasons for his termination were a pretext for retaliation.

See Crawford v. City of Fairburn, 482 F3d 1305, 1309 (III) (11th Cir. 2007)

(summary judgment proper for employer where employee failed to rebut reasons

given for termination); see also Tiggs-Vaughn v. Tuscaloosa Housing Auth., 385 Fed.

Appx. 919, 923 (11th Cir. 2010) (assertion of pretext insufficient where employee

failed to present any evidence to counter employer’s claim that she was disruptive

employee). For this reason, the trial court did not err in granting the City’s motion for

summary judgment on Tuohy’s whistleblower claim. See Crawford, supra, 482 F3d

at 1309 (III).

Judgment affirmed. Barnes, P. J., and Branch, J., concur.

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