Murray-Obertein v. Georgia Government Transparency and Campaign Finance Commission.

FIRST DIVISION

BARNES, P. J.,

MCMILLIAN and MERCIER, 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

February 23, 2018

In the Court of Appeals of Georgia

A17A1836. MURRAY-OBERTEIN v. GEORGIA GOVERNMENT

TRANSPARENCY AND CAMPAIGN FINANCE

COMMISSION.

BARNES, Presiding Judge.

Elisabeth Murray-Obertein appeals from the order of the trial court granting the

Georgia Government Transparency and Campaign Finance Commission’s (“the

Commission”) motion for summary judgment. Murray-Obertein contends that the trial

court erred in finding that her retaliation claim under the Georgia Whistleblower Act,

OCGA § 45-1-4 et seq (the “GWA”), was precluded because she was not an

“employee” at the time of the Commission’s purported retaliatory acts. Upon our

review, we affirm.

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

a de novo standard of review. 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. We must view the evidence, and

all reasonable inferences drawn therefrom, in the light most favorable

to the nonmovant.

(Citations omitted.) Tuohy v. City of Atlanta, 331 Ga. App. 846 (771 SE2d 501)

(2015).

The trial court’s grant of summary judgment was limited to whether a “public

employee” as defined by the GWA includes former employees, and in concluding that

it did not, the trial court did not address whether, under the GWA, Murray-Obertein

was engaged in protected acts or whether the Commission’s acts were retaliation.

Thus, the underlying claims are not at issue in this appeal.

With that being so, the facts pertinent to this appeal demonstrate that Murray-

Obertein was employed by the Commission from December 2011 until January 29,

2014. On October 28, 2014, she filed the underlying complaint in which she alleged

that the Commission had retaliated against her because of the following: on August

1, 2013, she gave a deposition in a case brought against the Commission regarding

violations of OCGA § 45-10-3 related to a campaign finance ethics investigation; on

February 17, 2014, she testified as a witness at the ensuing trial arising from that

complaint; and on June 11, 2014, she had resolved by settlement agreement her own

claims against the Commission. According to the complaint, the alleged retaliation

was derogatory statements the Commission’s Executive Secretary made during

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interviews with the media, all of which occurred after Murray-Obertein was no longer

employed with the Commission. Murray-Obertein did not allege any adverse

employment actions. In granting summary judgment to the Commission, the trial

court found that the definition of “public employee” for purposes of bringing a

retaliation claim pursuant to the GWA, means a current employee, rather than a

former employee. Thus, it found that because Murray-Obertein was not employed by

the Commission at the time of the purportedly retaliatory acts, her claims pursuant to

the GWA failed. We agree.

“The GWA creates a cause of action for retaliatory discharge, suspension,

demotion, or other adverse employment action taken against a public employee (as

defined by the Act) by a public employer as a result of the employee’s disclosure of,

or refusal to participate in, violation of the law.” West v. City of Albany, 300 Ga. 743

(797 SE2d 809) (2017. Under the GWA,

[n]o public employer shall 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, unless the

disclosure was made with knowledge that the disclosure was false or

with reckless disregard for its truth or falsity.

OCGA § 45-1-4 (d) (2). “Public employee” is defined as

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any person who is employed by the executive, judicial, or legislative

branch of the state or by any other department, board, bureau,

commission, authority, or other agency of the state. This term also

includes all employees, officials, and administrators of any agency

covered by the rules of the State Personnel Board and any local or

regional governmental entity that receives any funds from the State of

Georgia or any state agency.

OCGA § 45-1-4 (a) (3). (Emphasis supplied.)

In moving for summary judgment, the Commission asserted that even though

the WBA waives sovereign immunity, see Colon v. Fulton County, 294 Ga. 93, 95 (1)

(751 SE2d 307) (2013) (“OCGA § 45-1-4 sets forth a specific waiver of the County’s

sovereign immunity and the extent of such waiver”), it must be narrowly construed,

and under such construction, Murray-Obertein is not a “public employee” as defined

by the statute. On appeal, Murray-Obertein contends that the trial court’s

interpretation of the GWA was overly restrictive. According to Murray-Obertein, the

GWA does not require that a person who was formerly a public employee at the time

of the protected activity remain employed at the time of the retaliation. Moreover, she

asserts, permitting public employers to engage in post-employment retaliation,

“defeats the remedial nature of the statute and denies a whistleblower redress.”

Murray-Obertein argues that this Court should look to the United States Supreme

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Court’s decision in Robinson v. Shell Oil Co., 519 U. S. 337 (117 SCt 843, 136 LE2d

808) (1997), in which the Court held that retaliation claims under Title VII of the

Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq.(“Title VII”), applied to former

employees.

In Robinson, an former employee filed suit under § 704 (a) of Title VII, which

makes it unlawful “for an employer to discriminate against any of his employees or

applicants for employment” who have availed themselves of Title VII’s protections.

Id. at 339-340. After, “first . . . interpreting [the] statute . . . to determine whether the

language at issue has a plain and unambiguous meaning,” the Supreme Court found

the term “employee” ambiguous within the context of § 704 (a), because, among other

things, and of significance in this case, “there is no temporal qualifier in [the statute]

such as would make plain that § 704(a) protects only persons still employed at the

time of the retaliation.” Id. at 340-341 (II). “Employee” under Title VII is defined as

“an individual employed by an employer.” 42 USCS 2000e(f)). Compare Walters v.

Metropolitan Ed. Enterprises, Inc., 519 U.S. 202, 207-208 (117 SCt. 660, 136 LE2d

644) (1997) (the term “employees” in § 701(b), 42 USCS § 2000e (b), referred to

those persons with whom an employer has an existing employment relationship

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because §701(b) has two significant temporal qualifiers signifying current

employment relationships.)

Thus, while Robinson indicated that former employees were included in the

definition of “employees” in Section 704(a) of Title VII, that case is distinguishable

from the circumstances in this case because OCGA § 45-1-4 (a) (3) expressly defines

“public employee” as a person “who is employed,” thus employing the temporal

qualifier “is.”

When we consider the meaning of a statute, we must presume that

the General Assembly meant what it said and said what it meant. To that

end, we must afford the statutory text its plain and ordinary meaning, we

must view the statutory text in the context in which it appears, and we

must read the statutory text in its most natural and reasonable way, as an

ordinary speaker of the English language would. Consequently, courts

sometimes refer to the rules of English grammar, inasmuch as those

rules are the guideposts by which ordinary speakers of the English

language commonly structure their words, and the legislature is

presumed to know the rules of grammar. Applying these principles, if

the statutory text is clear and unambiguous, we attribute to the statute its

plain meaning, and our search for statutory meaning is at an end.

(Citations, footnote and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 173 (1)

(a) (751 SE2d 337) (2013). See OCGA § 1-3-1 (b) (words are given their ordinary

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meaning unless they are words of art or words that are given a particular meaning

within a particular trade or subject matter.); Smith v. Ellis, 291 Ga. 566, 573 (3) (a)

(731 SE2d 731) (2012) (“In construing statutes … we do not read words in isolation,

but rather in context.”) (citations omitted).

In this case, OCGA § 45-1-4 (d) (2) provides, in pertinent part that “[n]o public

employer shall retaliate against a public employee for disclosing a violation of or

noncompliance with a law, rule, or regulation.” The term “retaliate” refers to

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). In construing the provisions of the WBA, we have held that

to establish a claim under the statute, a public employee must demonstrate that (1) she

was employed by a public employer; (2) she made a protected disclosure or objection;

(3) she suffered an adverse employment action; and (4) there is some causal

relationship between the protected activity and the adverse employment action. See

Albers v. Ga. Bd. of Regents &c., 330 Ga. App. 58, 61 (1) (766 SE2d 520) (2014). It

follows that, in looking to the plain and unambiguous language of these provisions

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in concert with the WBA’s definition of a “public employee” as a person “who is

employed,” it is evident that a “public employee” as defined by the statute does not

apply to a former employee who was allegedly retaliated against after her

employment, but instead limits retaliation to acts committed against current

employees. Indeed, such an analytical framework aligns with the statute’s prohibition

against “adverse employment action[s]” for making disclosures. See OCGA § 45-1-4

(d) (2).

While the WBA anticipates that in some instances, the retaliation may not be

discovered until some time in the future, at which time the “public employee” may

no longer be employed by the agency, see OCGA § 45-1-4 (e) (1), (2) (A)-(E), the

statute clearly mandates that its provisions relate to retaliation against a person “who

is employed” at the time of the alleged retaliation.”1 It is undisputed that Murray-

Obertein was not so employed.

1

“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.” OCGA § 45-1-4 (e) (1).

Relief under the WBA includes, reinstatement of position held before the retaliation,

reinstatement of full fringe benefits and seniority rights, and compensation for lost

wages and benefits. See OCGA § 45-1-4 (e) (2) (A)-(E).

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Thus, in this circumstance, the trial court did not err in granting summary

judgment to the Commission.

Judgment affirmed. McMillian and Mercier, JJ., concur.

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