Daily Report_Fulton County_Whistleblower Retaliation_Immunity
3
Fulton Cnty. v. Colon Georgia Court of Appeals, Civil Case (6/25/2014, 7/9/2014) A12A0529; A12A0530 EMPLOYMENT: Whistleblower, Retaliation; GOVERNMENT: Immunity Alert: The Court of Appeals erred in its interpretation of the whistleblower statute with regard to causes of action for alleged retaliation. Headnote: In Colon v. Fulton Cnty., 294 Ga. 93 (2013), the Supreme Court partially reversed the judgment in Fulton Cnty. v. Colon, 316 Ga. App. 883 (2012), holding that the Court of Appeals erred with respect to its interpretation of the whistleblower statute, O.C.G.A. § 45-1-4, with regard to causes of action for alleged retaliation. In so holding, the Court noted that the Court of Appeals erred in inappropriately grafting the provisions of § 41-1-4 (b) onto § 41-1-4 (d), and it compounded this error in then defining the types of state programs or operations that would allegedly have to be involved in order for a public employee to present a viable claim for retaliation under § 41-1-4 (d), i.e., by its plain terms, § 41-1-4 (b) deals with a public employer's ability to ' "receive and investigate complaints or information . . . concerning the possible existence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer," ' which has nothing to do with, and makes no mention of, retaliation. Thus, nothing in § 41-1-4's language suggests that the Legislature intended for subsections (b) and (d) of the statute be read together such that retaliation claims under subsection (d) are somehow limited by a public employer's ability ' "to receive and investigate complaints or information" ' relating to possible ' "fraud, waste, and abuse" ' in state programs under subsection (b). However, the Court affirmed the reversal, on the basis of sovereign immunity, of the denial of Fulton County's motions to dismiss for lack of subject matter jurisdiction in Maria Colon and Gwendolyn Warren's actions alleging that the County retaliated against them by terminating Warren's employment and demoting Colon after Colon and Warren jointly disclosed to supervisors that various County employees were violating laws, rules and regulations and were fraudulently wasting and abusing the County's funds and public money, holding that the Court of Appeals properly determined that § 45-1-4 sets forth a specific waiver of the County's sovereign immunity and the extent of such a waiver. Finally, the Court noted that where, as here, the Legislature has specifically created a right of action against the government that sovereign immunity would otherwise bar and has further expressly stated that an aggrieved party is entitled to collect money damages from the government in connection with a successful claim under the statute, there can be no doubt that the Legislature intended for a waiver of sovereign immunity with respect to the specific claim authorized under the statute. Accordingly, the Court of Appeals has vacated its earlier opinion to the extent it was reversed and adopted the judgment of the Supreme Court as its own. Text: Andrews, Gary Blaylock, Presiding Judge In Fulton County v. Colon, 316 Ga. App. 883 (730 SE2d 599) (2012), we consolidated the captioned appeals by Fulton County in actions brought by Maria Colon and Gwendolyn Warren pursuant to OCGA § 45-1-4, the whistleblower statute. In those cases, the County appealed from the trial court's denial of identical motions filed in each action. In the motions, the County sought: (1) dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction on the basis that the County's sovereign immunity barred the action; and (2) for judgment on the pleadings (a) because the whistleblower complaints did not relate to a "state program or operation," and (b) because Warren was a high-level employee not entitled to whistleblower protection. As to the motions seeking dismissal on the basis of sovereign immunity, we concluded that the trial court correctly found that OCGA § 45-1-4 expresses a specific waiver of sovereign immunity and the extent of the waiver. As to the motions seeking judgment on the pleadings because the complaints did not relate to a "state program or operation," we construed OCGA § 45-1-4 and, based on that statutory construction, vacated the trial court's denial of the motions on that issue and remanded. In light of our construction of OCGA § 45-1-4, we also vacated the trial court's denial of the motions on the sovereign immunity issue and remanded. As to the motion seeking judgment on the pleadings on the basis that Warren was not entitled to whistleblower protection because she was a high-level employee, we affirmed the trial court's denial of the motion. Accordingly, in Colon, supra, we affirmed the trial court's judgment in part, and vacated in part and remanded. In Colon v. Fulton County, 294 Ga. 93 (751 SE2d 307) (2013), the Supreme Court affirmed our decision in Colon, 316 Ga. App. 883, "insofar as it relates to the express waiver of sovereign immunity created by OCGA § 45-1-4," but disagreed with and reversed our construction of OCGA § 45-1-4. Colon, 294 Ga. at 96-100. Accordingly, our decision in Colon, 294 Ga. App. 883, is vacated to the extent it was reversed by the Supreme Court, and the judgment of the Supreme Court is made the judgment of this Court. It follows that the judgment of the trial court denying Fulton County's motions in the captioned
-
Upload
deb-beacham -
Category
Documents
-
view
23 -
download
0
description
Daily Report article on whistleblower retaliation case.
Transcript of Daily Report_Fulton County_Whistleblower Retaliation_Immunity
-
Fulton Cnty. v. ColonGeorgia Court of Appeals, Civil Case (6/25/2014, 7/9/2014) A12A0529; A12A0530EMPLOYMENT: Whistleblower, Retaliation; GOVERNMENT: ImmunityAlert: The Court of Appeals erred in its interpretation of the whistleblower statute with regard to causes of action for allegedretaliation.
Headnote: In Colon v. Fulton Cnty., 294 Ga. 93 (2013), the Supreme Court partially reversed the judgment in Fulton Cnty.v. Colon, 316 Ga. App. 883 (2012), holding that the Court of Appeals erred with respect to its interpretation of thewhistleblower statute, O.C.G.A. 45-1-4, with regard to causes of action for alleged retaliation. In so holding, the Courtnoted that the Court of Appeals erred in inappropriately grafting the provisions of 41-1-4 (b) onto 41-1-4 (d), and itcompounded this error in then defining the types of state programs or operations that would allegedly have to be involvedin order for a public employee to present a viable claim for retaliation under 41-1-4 (d), i.e., by its plain terms, 41-1-4 (b)deals with a public employer's ability to ' "receive and investigate complaints or information . . . concerning the possibleexistence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under thejurisdiction of such public employer," ' which has nothing to do with, and makes no mention of, retaliation. Thus, nothing in 41-1-4's language suggests that the Legislature intended for subsections (b) and (d) of the statute be read together such thatretaliation claims under subsection (d) are somehow limited by a public employer's ability ' "to receive and investigatecomplaints or information" ' relating to possible ' "fraud, waste, and abuse" ' in state programs under subsection (b).
However, the Court affirmed the reversal, on the basis of sovereign immunity, of the denial of Fulton County's motions todismiss for lack of subject matter jurisdiction in Maria Colon and Gwendolyn Warren's actions alleging that the Countyretaliated against them by terminating Warren's employment and demoting Colon after Colon and Warren jointly disclosedto supervisors that various County employees were violating laws, rules and regulations and were fraudulently wasting andabusing the County's funds and public money, holding that the Court of Appeals properly determined that 45-1-4 sets fortha specific waiver of the County's sovereign immunity and the extent of such a waiver. Finally, the Court noted that where, ashere, the Legislature has specifically created a right of action against the government that sovereign immunity wouldotherwise bar and has further expressly stated that an aggrieved party is entitled to collect money damages from thegovernment in connection with a successful claim under the statute, there can be no doubt that the Legislature intended for awaiver of sovereign immunity with respect to the specific claim authorized under the statute. Accordingly, the Court ofAppeals has vacated its earlier opinion to the extent it was reversed and adopted the judgment of the Supreme Court as itsown.
Text: Andrews, Gary Blaylock, Presiding Judge
In Fulton County v. Colon, 316 Ga. App. 883 (730 SE2d 599) (2012), we consolidated the captioned appeals by FultonCounty in actions brought by Maria Colon and Gwendolyn Warren pursuant to OCGA 45-1-4, the whistleblower statute.In those cases, the County appealed from the trial court's denial of identical motions filed in each action. In the motions, theCounty sought: (1) dismissal pursuant to OCGA 9-11-12 (b) (1) for lack of subject matter jurisdiction on the basis that theCounty's sovereign immunity barred the action; and (2) for judgment on the pleadings (a) because the whistleblowercomplaints did not relate to a "state program or operation," and (b) because Warren was a high-level employee not entitledto whistleblower protection.
As to the motions seeking dismissal on the basis of sovereign immunity, we concluded that the trial court correctly foundthat OCGA 45-1-4 expresses a specific waiver of sovereign immunity and the extent of the waiver. As to the motionsseeking judgment on the pleadings because the complaints did not relate to a "state program or operation," we construedOCGA 45-1-4 and, based on that statutory construction, vacated the trial court's denial of the motions on that issue andremanded. In light of our construction of OCGA 45-1-4, we also vacated the trial court's denial of the motions on thesovereign immunity issue and remanded. As to the motion seeking judgment on the pleadings on the basis that Warren wasnot entitled to whistleblower protection because she was a high-level employee, we affirmed the trial court's denial of themotion. Accordingly, in Colon, supra, we affirmed the trial court's judgment in part, and vacated in part and remanded.
In Colon v. Fulton County, 294 Ga. 93 (751 SE2d 307) (2013), the Supreme Court affirmed our decision in Colon, 316 Ga.App. 883, "insofar as it relates to the express waiver of sovereign immunity created by OCGA 45-1-4," but disagreed withand reversed our construction of OCGA 45-1-4. Colon, 294 Ga. at 96-100. Accordingly, our decision in Colon, 294 Ga.App. 883, is vacated to the extent it was reversed by the Supreme Court, and the judgment of the Supreme Court is made thejudgment of this Court. It follows that the judgment of the trial court denying Fulton County's motions in the captioned
-
appeals seeking dismissal for lack of subject matter jurisdiction on the basis of sovereign immunity, and seeking judgmenton the pleadings is affirmed.
Judgment affirmed. Doyle, P.J., and Boggs, J. concur.
Trial Judge: Jerry W. Baxter, Fulton Superior Court.
Attorneys: Kaye Burwell and Y. Soo Jo (Fulton County Attorney's Office), Atlanta, for appellant. Larry Chesin and AllanParks (Parks, Chesin & Walbert PC), Atlanta, for appellees.
Page printed from Daily Report Copyright 2015. ALM Media Properties, LLC. All rights reserved.
