Franklin v. Eaves

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, 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

June 3, 2016

In the Court of Appeals of Georgia
A16A0616. FRANKLIN v. EAVES. PE-025

PETERSON, Judge.

Dedrain E. Frankin brought a lawsuit under the Georgia Whistleblower Act

against defendant John E. Eaves in his official capacity as chairman of the Fulton

County Board of Commissioners (“the County”). She appeals from the trial court’s

orders granting the County’s motion to open default and granting the County’s

motion for summary judgment. We agree with the County that the trial court did not

abuse its discretion in granting the motion to open default and affirm the trial court’s

ruling on that motion. But because there are genuine disputes of material fact

preventing summary judgment for the County on the ground that Franklin did not

timely file her suit, we reverse the trial court’s grant of summary judgment.
 1. Franklin first argues that the trial court erred in granting the County’s

motion to open default. We disagree.

On October 11, 2013, Franklin filed her lawsuit in the Fulton County Superior

Court against the County’s manager, alleging claims under the Georgia

Whistleblower Act, OCGA § 45-1-4, as well as provisions of the federal and state

constitutions. On November 18, 2013, she filed an amended complaint, substituting

Eaves in his official capacity as the defendant and alleging claims under only OCGA

§ 45-1-4 and the free speech protections of the Georgia constitution. Nine days later,

the County’s manager filed a notice of removal in federal court, referencing only the

original complaint. With the County manager’s consent, the federal district court on

January 3, 2014, issued an order remanding the case to state court.

There was, however, some delay in docketing that order in state court. After

inquiries from Franklin’s counsel, the order appeared on the Fulton County Superior

Court docket as having been docketed on March 14, 2014. The County filed answers

to Franklin’s complaint and amended complaint on March 25, 2014. Implicitly

recognizing that its answer was tardy, the County filed a motion to open default,

accompanied by an affidavit by its counsel. Counsel averred that, after the federal

court issued its remand order, her office checked the status of the case on the state

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court docket on a daily basis. She did not learn until March 25, 2014, however, that

the remand order had been docketed in state court, and even then “the status of the

case remained closed” until her office contacted the state court. The County took the

position that it was entitled to open default because it had filed its answer and paid

costs within the 15-day grace period afforded by OCGA § 9-11-55(a), or,

alternatively, the trial court should exercise its discretion to open default pursuant to

§ 9-11-55(b). In opposing the motion, Franklin moved for a default judgment and

argued that the County’s thirty days for filing an answer began to run upon service

of the complaint on November 4, 2013, and that the County had only seven days left

once the federal court remanded the case on January 3, 2014, making the motion to

open default 62 days late, even considering the grace period.

While the motion to open default was pending, the County filed a motion for

summary judgment. The trial court granted the motion to open default and denied the

motion for a default judgment without elaboration, but also denied the County’s

motion for summary judgment. The trial court later granted summary judgment to the

County after it moved for reconsideration.

A trial court’s decision to open a prejudgment default under OCGA § 9-11-

55(b) is reviewed for an abuse of discretion as long as certain prerequisites are met.

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Brazell v. J. K. Boatwright & Co., P.C., 324 Ga. App. 502, 502 (751 SE2d 133)

(2013). After the 15-day grace period for opening default as a matter of right under

OCGA § 9-11-55(a), a trial court has no discretion to open default unless the

defendant’s showing for opening the default meets four conditions: it must (1) be

made under oath, (2) offer to plead instanter, (3) announce ready to proceed with trial,

and (4) set up a meritorious defense. See id. at 502-04; OCGA § 9-11-55.

“Compliance with the conditions of OCGA § 9-11-55(b) is mandatory, and in its

absence, the trial court has no discretion to open default.” Cavender v. Taylor, 285

Ga. 724, 725 (2) (681 SE2d 139) (2009).

Franklin challenges the trial court’s ruling based only on the first condition,

arguing it was not met because the County’s answer and amended answer were not

made or verified under oath. But Franklin did not argue this below, and “[i]ssues not

raised below will not be considered on appeal.” Allen v. Peachtree Airport Park Joint

Venture, 231 Ga. App. 549, 550 (2) (499 SE2d 690) (1998) (footnote omitted). See

also Robinson v. Moonraker Assocs., 205 Ga. App. 597, 598 (423 SE2d 44) (1992)

(appellants waived right to complain that trial court opened default despite appellee’s

failure to pay costs as required by OCGA § 9-11-55(b)). Accordingly, we need not

consider whether the four conditions for opening default have been met here.

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 Once those four prerequisites are satisfied, a trial court may open default on

any one of three grounds: (1) providential cause, (2) excusable neglect, or (3) that a

proper case has been made for opening default. Brazell, 324 Ga. App. at 502.

Although the “proper case” ground is broader than the other two grounds for default,

it does not give a trial court unlimited authority to open a default. Cardinal Robotics,

Inc. v. Moody, 287 Ga. 18, 21 (694 SE2d 346) (2010). In considering whether to open

default under OCGA § 9-11-55(b), courts consider (1) whether and how the opposing

party will be prejudiced by opening the default, (2) whether the opposing party

elected not to raise the default issue until after the time under OCGA § 9-11-55(a)

had expired for the defaulting party to open default as a matter of right; and (3)

whether the defaulting party acted promptly to open the default upon learning that no

answer either had been filed or timely filed. Thomas v. Brown, 308 Ga. App. 514, 516

(3) (707 SE2d 900) (2011). The law favors the opening of defaults, as cases should

be decided on their merits whenever possible. Id. at 517 (3).

Franklin argues that the County has not made a good case for opening default

because counsel “substantially miscalculated” the time for filing an answer and

neglect by counsel is not a valid excuse. However, the County could not file its

answer until the state court case was reopened, and the undisputed evidence shows

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that the County acted with diligence to monitor the state court docket. The undisputed

evidence also shows that the County filed its answers and moved to open default on

the same day that it learned the federal court’s remand order had been docketed in

state court. Franklin has not shown how she will be prejudiced by opening of the

default. Although the trial court did not specify the basis on which it granted the

motion to open default, it did not abuse its discretion in opening default on the basis

of either excusable neglect or proper case.

2. Franklin also argues that the trial court erred in granting summary judgment

on the ground that she failed to timely file her lawsuit. We agree.

Summary judgment is proper when there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We

review a grant or denial of summary judgment de novo and construe the evidence in

the light most favorable to the nonmovant. Home Builders Assn. of Savannah v.

Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003). Because Franklin’s

original complaint was verified, we may consider factual allegations made therein as

though she had averred those facts in an affidavit, recognizing that a verified

complaint, like an affidavit, is not sufficient to avoid summary judgment to the extent

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that it is merely conclusory. See Kerr v. Cohen, 249 Ga. App. 392, 397 (1) (c) (548

SE2d 17) (2001).1

Viewing the evidence in the light most favorable to the plaintiff, Franklin has

been an employee of the County since 2007, working in the health department. In

2011, she became a Financial Systems Coordinator, the duties of which included

credentialing medical providers by submitting information to various care

management organizations. In that capacity, she collected from providers information

about their health status, demographics, and various numerical identifiers. She had

additional responsibilities for credit card payment processing that involved handling

confidential medical information from patients, including their diagnoses and

demographics. In March 2012, Franklin was moved from a private office to a cubicle.

That move triggered a series of complaints by Franklin premised on the notion

that working in a cubicle would expose providers’ and patients’ protected health

information to the general public in violation of the law. In March 2012, she

expressed concerns to her supervisors that moving to a cubicle could violate the

1
Although Franklin contends on appeal that her amended complaint was
verified and cites to its factual statements in her appellate briefing, the record shows
that the amended complaint was not verified, and we do not consider the amended
complaint as equivalent to an affidavit.

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confidentiality requirements of the federal Health Insurance Portability and

Accountability Act. Later that month, she filed an internal written grievance to that

effect. In July 2012, the County’s grievance review committee sent Franklin a

recommended settlement order, approved by the County manager, finding that the

health department had not erred in its practices and thus denying Franklin’s

grievance. The grievance committee recommended that the health department provide

a secured office for Franklin or any other employee processing documents containing

confidential health information.

Franklin contends that she experienced retaliation as a result of her grievance.

After she filed her grievance, on or around August 27, 2012, her credit card

processing duties were assigned to another employee, who was moved from a cubicle

to an office. Her credentialing duties were assigned to another employee on or around

October 12, 2012. She claims that she was not informed of those duty reassignments

until a October 24, 2012, meeting with management.

Franklin also claims that she experienced other retaliation in her day-to-day

interactions with management. She contends she was denied a request to attend a

certain training, learning on or around October 17, 2012, that she was not invited.

Franklin notes that she asked to leave work early in December 2012 but that request

8
was denied (although she left work early, anyway, and was not disciplined). She

complains that management ignored other leave requests after she filed her grievance,

including in early 2013. She points to an April 2014 incident in which management

required an original of her absence excuse for some volunteer work, claiming that

also was retaliation. Franklin also alleges that management required her to submit

documents for jury duty leave that were not required of others, required a doctor’s

note after she took one day of intermittent FMLA leave, and generally harassed her

for an inability to complete her work in a timely manner and made it harder for her

to do her job; it is not apparent from the record when those particular events occurred,

however.

Franklin also claims that the County retaliated by failing to hire her for two job

transfers for which she applied. She applied for a program administrator’s position

in July 2012 and was interviewed in August 2012, but a County official said that she

didn’t get the job because of her low interview scores. She also applied for a health

program manager position but was informed by the County’s recruiting division on

January 25, 2013, that she had not been selected because she did not meet the

minimum requirements for the position. Franklin filed a second grievance that same

9
month, claiming retaliation and seeking transfer out of her department, which was

denied in June 2013.

The County moved for summary judgment partly on the basis that the October,

11, 2013, filing of Franklin’s lawsuit was time barred, either in whole or in part,

because the first instance of retaliation alleged by Franklin, her reassignment from an

office to a cubicle, occurred in March 2012. In ultimately granting the County’s

motion, the trial court ruled that there were “no material facts at issue for

determination at trial” and the County was “entitled to judgment as a matter of law

as a result of Plaintiff’s failure to timely file her lawsuit[.]” Franklin argues that the

trial court erred in granting summary judgment to the County on the ground that she

failed to timely file her lawsuit.2

2
Franklin also appeals on the basis that the trial court erred in granting
summary judgment to the County on the ground that Franklin could not establish a
prima facie case under the Georgia Whistleblower Act. This argument, and the
County’s response to it, are premised on the assumption that the trial court provided
two alternative bases for its grant of summary judgment. That assumption is
erroneous: the trial court merely said that the case could be resolved based on
Franklin’s failure to timely file, an issue that, in the trial court’s estimation, presented
no genuine disputes of material fact for trial. We disagree with that conclusion, but
nothing prevents the trial court from considering on remand the County’s alternative
argument for summary judgment.

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 The Georgia Whistleblower Act (“the Act”) provides that a public employee

who experiences retaliation in violation of the statute may file a lawsuit “within one

year after discovering the retaliation or within three years after the retaliation,

whichever is earlier.” OCGA § 45-1-4(e)(1). The Act’s definition of “retaliation,” the

discovery of which triggers the running of the statute of limitations, includes “the

discharge, suspension, or demotion by a public employer of a public employee or any

other adverse employment action[,]” OCGA § 45-1-4(a)(5), indicating that any

discrete adverse employment action can create a cause of action and, upon discovery,

trigger the running of the statute of limitations.

Franklin argues on appeal that her cause of action accrued on October 24,

2012, when her supervisor informed her in a meeting that her job duties of

credentialing and credit card reporting had been assigned to another employee.

Therefore, she argues, she timely filed her complaint within one year, on October 11,

2013. However, the County accurately points out that Franklin did not take this

position in the trial court below. Franklin stated in her response to the County’s

motion for summary judgment that the first adverse employment action against her

occurred on August 27, 2012, when her supervisor assigned Franklin’s credit card

processing duties to another employee. Franklin’s response to the motion argued that

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the statute of limitations was tolled through May 30, 2013, while she exhausted her

administrative remedies through the grievance process.3

The County rightly points out that “[e]ach party has a duty to present his best

case on a motion for summary judgment.” Pfeiffer v. Ga. Dep’t of Transp., 275 Ga.

827, 828 (2) (573 SE2d 389) (2002). However, here the issue is an affirmative

defense on which the County bore the ultimate burden of proof, and it was not

Franklin’s obligation to argue before the trial court that the County had not met its

burden. See Falanga v. Kirschner & Venker, P.C., 286 Ga. App. 92, 97 (1) (b) (648

SE2d 690) (2007) (no waiver based on failure to argue in response to summary

judgment motion on fraudulent billing claim that certain bills fell within the statute

of limitations); see also Dental One Assocs. v. JKR Realty Assocs., 269 Ga. 616, 618

(1) (501 S.E.2d 497) (1998) (“It is not the obligation of the non-moving party to

object to the movant’s failure to meet its evidentiary burden.”). Franklin did not make

3
In its reply brief filed with the trial court, the County noted that there is no
requirement that a plaintiff under the Georgia Whistleblower Act exhaust her
administrative remedies. The U.S. Court of Appeals for the Eleventh Circuit in an
unpublished decision implicitly rejected the notion that there is an exhaustion
requirement that can toll the statute in Georgia Whistleblower Act cases. See Stokes
v. Savannah State Univ., 291 Fed. App’x 931, 932 (11th Cir. 2008). Because the
question of an exhaustion requirement is not at issue here, we do not consider or
decide it.

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an admission that she had, in fact, been informed of the change in her duties on

August 27, 2012, as suggested by the County. Rather, she took a legal position as to

when the statute of limitations began to run. The County seeks to require this Court

to accept that legal proposition, even if it is wrong. This it cannot do. Cf. Tiller v.

State, 314 Ga. App. 472, 474 n.2 (3) (724 SE2d 397) (2012) (court not bound by

party’s concession on appeal).

Moreover, the parties appear to be unduly focused on when Franklin learned

that her credit card processing and credentialing duties had been taken away. These

are not the only instances of retaliation alleged by Franklin. As noted above, the Act

instructs us that any discrete adverse employment action can create a cause of action

and thereby trigger the running of the statute of limitations upon discovery. We

therefore consider each act of retaliation alleged by Franklin separately.

This is consistent with the United States Supreme Court’s approach to Title VII

cases, as set forth in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (122 S. Ct.

2061, 153 LEd2d 106) (2002). There, the Court held that Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq., “precludes recovery for discrete acts of

discrimination or retaliation that occur outside the statutory time period.” Id. at 105

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(emphasis added).4 In supplemental briefing requested by the Court, Franklin offers

a thoughtful analysis as to why this approach does not apply to retaliation claims

under the Act, including concerns that it is at odds with the Act’s rule that the

limitations period begins to run when the employee receives notice of the adverse

employment action. Franklin is correct that the one-year limitations period found in

OCGA § 45-1-4(e)(1) begins to run when the employee receives notice of the adverse

employment action, whereas the relevant limitations period construed by the Supreme

Court began to run when the alleged unlawful employment practice “occurred.”

Compare OCGA § 45-1-4(e)(1) with 42 U.S.C. § 2000e-5(e)(1). We nonetheless find

the Supreme Court’s approach to be a helpful framework to the extent that it counsels

consideration of adverse employment actions one-by-one. Cf. Tuohy v. City of

Atlanta, 331 Ga. App. 846, 848-49 (1) (771 SE2d 501) (2015) (approving application

of Title VII’s burden-shifting analysis set forth in McDonnell Douglas Corp. v.

4
The Court also held that “consideration of the entire scope of a hostile work
environment claim, including behavior alleged outside the statutory time period, is
permissible for the purposes of assessing liability, so long as any act contributing to
that hostile environment takes place within the statutory time period.” Morgan, 536
U.S. at 105. As Franklin has conceded that she did not allege a hostile working
environment claim under a continuing violation theory in her complaint, we need not
consider whether the Act contemplates such a claim or, if it does, how the limitations
rule might apply.

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Green, 411 U.S. 792, 804 (93 S. Ct. 1817, 36 LE2d 668) (1973) to retaliation claims

brought under the Act).

Given the lack of evidence as to the exact timing of some of the acts of

retaliation complained of by Franklin, it also is important to remember which party

bears the burden of proof when a statute of limitations defense is raised on summary

judgment. That a lawsuit is untimely filed under a given statute of limitations

generally is an affirmative defense that must be proven by a defendant raising it as a

basis for summary judgment. See Cleaveland v. Gannon, 284 Ga. 376, 381 (2) (667

SE2d 366) (2008) (medical malpractice claim); Porex Corp. v. Haldopoulos, 284 Ga.

App. 510, 511 (644 SE2d 349) (2007) (claim under Georgia Trade Secrets Act). A

defendant moving for summary judgment based on an affirmative defense may not

simply rely upon an absence of evidence in the record disproving the affirmative

defense but must come forward with evidence demonstrating as a matter of law that

the suit was filed too late. See Porex, 284 Ga. App. at 511.

Applying these standards, we find that the County has not proven that

Franklin’s claimed instances of retaliation5 are barred by the statute of limitations.

5
At one point in her deposition, Franklin testified that she thought being
moved to a cubicle in March 2012 was itself an act of retaliation. Of course, this is
nonsensical, as it predated her grievance that allegedly caused the County to retaliate

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Regarding her claim that her duties were taken away from her in retaliation for her

grievance, Franklin has presented evidence — a combination of her deposition

testimony and averments in her verified complaint — that she did not learn of those

changes until an October 24, 2012, meeting. Although we find it puzzling that

someone could be relieved of her core job duties and not realize it for two months,

that sort of credibility question creates an issue of fact for a jury, not an appellate

court. See Nguyen v. Southwestern Emergency Physicians, P.C., 298 Ga. 75, 84 (3)

(779 SE2d 334) (2015) (when a court considers a motion for summary judgment, it

must accept the credibility of the evidence upon which the nonmoving party relies).

As for Franklin’s other allegations of retaliation, the County has pointed to no

evidence demonstrating that they are time-barred. She points to specific instances of

retaliation that came to her attention within one year of the filing of her suit on

October 11, 2013: not being invited to a training, the denial of a leave request and

other leave requests being ignored, and a request for an original volunteer work

excuse. For other claimed acts of retaliation, the record does not contain evidence of

when they might have occurred, and, again, it is the County’s burden to show that

against her. Franklin conceded as much in disavowing any such claim in her response
to the County’s summary judgment motion, which premised its timeliness argument
on the notion that the move to a cubicle was Franklin’s first claimed act of retaliation.

16
they are time-barred. The County presented an affidavit to the effect that Franklin was

interviewed for the program administrator’s position in August 2012, but no evidence

of when the decision not to hire Franklin was made, let alone when she discovered

it. And an affidavit by another County witness demonstrated that Franklin was

informed of her non-selection for the health program manager position in January

2013, well within the statute of limitations. Whether these alleged acts were

significant enough to constitute retaliation is a separate question. In the absence of

a ruling below, we decline to address it in this appeal. The trial court erred in granting

summary judgment to County based on the statute of limitations governing Franklin’s

claims.

Judgment affirmed in part and reversed in part. Phipps, P. J., and Dillard, J.,

concur.

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