IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA

IMOGENE REDWINE ,

Plaintiff,

v.

ATLANTA INDEPENDENT SCHOOL SYSTEM,

Defendant.

CIVIL ACTION FILE NO:

2015-CV-257709

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

This matter came before the Court on Defendant Atlanta Independent School System's MOTION

FOR SUMMARY JUDGMENT filed on January 17,201.7. Plaintiff, a former special education teacher at

Brown Middle School, brings her claim under the Georgia Whistleblower Act ("G WA"), alleging that

she was retaliated against after she reported concerns of alleged cheating on the Critereon-Referenced

Competency Test ("CRCT"). The Court conducted a hearing on the Motion on September 14, 2017, and

counsel for Plaintiff and Defendant both appeared and presented oral argument. After a thorough

consideration of the pleadings, oral argument, and the applicable law, the Court rules as follows:

The Court has authority to grant a motion for summary judgment " ... if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law ... " O.C.G.A. § 9-11-56. Defendant argues in its Motion that Plaintiffs claim under

the GWA fails for four reasons: I) The claim is barred by the statute of limitations, 2) Plaintiff cannot

establish a prima facie case under the GWA, 3) Defendant has provided legitimate non-retaliatory

Fulton County Superior Court ***EFILED***RM

Date: 10/4/2017 2:29 PMCathelene Robinson, Clerk

reasons for Plaintiffs termination, and 4) Plaintiff cannot establish retaliatory animus. The Court will

address each of these arguments in turn.

The Statute of Limitations Bars Any Claim for Acts Which Occmred Prior to Mru·cb l. 2014

Plaintiff's Complaint chronicles a series of events that occurred over the course of her

employment at Brown Middle School which she argues to be the result of her reporting concerns about

fellow teachers cheating on the CRCT. The GWA provides that "[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." O.C.G.A. §45-1-4(e)(l) [emphasis added).

Plaintiff filed her Complaint on March 2, 2015, therefore her claim can only be based upon alleged

adverse actions occurring on or after March 3, 2014. It cannot be disputed that Plaintiffs Complaint

recounts several events which occurred prior to March 3, 2014. Where Plaintiff and Defendant disagree

is on whether those events should be characterized as separate actionable employment practices or

simply parts of a scheme which climaxed with the ultimate adverse employment action on June 30, 2014

when her employment with AISS ended.

Plaintiffs allegations go back several years before she was ultimately non-renewed iJ12014. Her

story begins in 2007 when she alleges that the then principal of Brown Middle School, Donnell

Underdue, learned that she bad spoken to her former supervisor about Underdue pressuring teachers to

cheat on the CRCT and that he re-assigned her to teaching a subject that she was not comfortable with or

qualified to teach. From that point on, according to Plaintiffs Complaint, her reporting of the cheating

scheme and refusal to comply with the cheating resulted in her being targeted and harassed in a variety

of ways, culminating with her accrued claim for non-renewal of her employment contract. Under the

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GW A, each adverse employment action alleged by a plaintiff is to be considered a separate cause of

action which triggers the running of the statute oflimitations. Franklin v. Eaves, 337 Ga. App. 292, 297

(2016). However the statute of limitations does not begin to toll until an action has "accrued," and "the

true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could

first have maintained his action to a successful result." Albers v. Georgia Bd. of Regents of Univ. Sys.

of Georgia, 330 Ga. App. 58, 65 (2014) (quoting Tuttle v. Georgia Bd. of Regents of Univ. Sys. of

Georgia, 326 Ga. App. 350, 353 (2014)). Like the plaintiff in Albers, the alleged retaliation being

complained of in this case is the termination of employment, thus the action accrued upon Plaintiff

receiving notice of her impending non-renewal on March 3, 2014.

The fact that Plaintiffs action did not accrue until March 3, 2014 does not mean that Plaintiffs

evidence is limited to events occurring on and after that date. The Court finds that Plaintiffs summary

of acts set forth in her Complaint as well as her Responses to Defendant's Motion for Summary

Judgment and Statement of Material Facts serves to provide background to Defendant's ultimate action

of non-renewal which forms the basis of her Complaint. In other words, while the series of allegedly

retaliatory acts enumerated by Plaintiff may or may not rise to the level of "adverse employment

actions," and either way would be time baned to the extent such actions occurred during the time

spanning the 2007-2008 school year until March 1, 2014, Plaintiff is not precluded from presenting

evidence of those actions in her effort to provide a complete picture of what led to her non-renewal in

2014.

Plaintiff Can Establish a Prima Facie Case Under the OW A

It has been recently established in Georgia courts that "the McDonneJI Douglas burden-shifting

analysis used in Title VII retaliation cases is appropriately utilized in the context of evaluating whether a

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state whistle-blower claim is subject to summary adjudication ... " Forrester v. Georgia Dep't of Human

Servs., 308 Ga. App. 716, 721 (2011 ). Under that analysis, Plaintiff has the initial burden of establishing

e prima facie case under the GWA, at which point the burden shifts to Defendant to show that there was

a legitimate, non-retaliatory reason for the adverse employment action taken against her. Upon such a

showing the burden would then shift back to Plaintiff to prove that Defendant's proffered reason for the

employment action is only pretext for unlawful retaliation. The Court will first address the issue of

whether Plaintiff can establish aprimafacie case. This being a motion for summary judgment and not a

final determination on the merits, the Court's role at this juncture is only to determine whether there is

any genuine issue of material facts that should go forth to be tried by a jury. O.C.G.A. §9-11-56. The

Court is required to accept Plaintiffs version of the facts as true and resolve all doubts in favor of

Plaintiff. Jackson v. Payne, 326 Ga. App. 536, 536 (2014). With this standard in mind, the Court finds

that Plaintiff has provided evidence sufficient to show that she can establish a prim a facie case under the

GWA.

It is well settled that to establish a prima facie claim under the statute, a public employee must

demonstrate the following four elements: (1) [s]he was employed by a public employer; (2) [s]he made a

protected disclosure or objection; (3) [s]he suffered an adverse employment action; and (4) there is some

causal relationship between the protected activity and the adverse employment action. Albers, 330 Ga.

App. at 61; OCGA § 45-1-4(d).

The first and third elements are not disputed; as an employee of Brown Middle School (and

therefore an employee of AISS) Plaintiff was employed by a public employer and on March 3, 2014 she

suffered an adverse employment action when she was notified of her non-renewal.

As to the second element, the Court reads Plaintiffs Complaint as raising both protected

disclosures and objections. Defendant argues that under the holding in Forrester v. Georgia Department

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of Human Resources, Plaintiff did not make a protected disclosure because the violation she allegedly

disclosed was a matter of common knowledge. Fonester, 308 Ga. App. at 716. Defendant also argues

that Plaintiff could not have made a protected objection because no one ever expressly instructed her to

violate any law or policy. Construing the facts in Plaintiffs favor, her reporting to her supervisors and to

a government agency (in this case the District Attorney's office) that she had concerns about cheating at

Brown Middle School were disclosures of a violation of the Jaw. There is a question of fact as to

whether the specific violations that she was reporting were in fact widely known at the time she

disclosed them. The fact that her supervisors knew about ongoing violations does not necessarily mean

that her reports were not a disclosure, as "nothing in the whistleblower statute suggests that protection

from retaliation ought to hinge on whether the information is unknown to the recipient." McKnight v.

Doughertv Cty., Ga., 1:12-CV-13 WLS, 2014 WL 1315554, at *4 (M.D. Ga. Mar. 28, 2014). And while

Plaintiff is not alleging that anyone expressly instructed her to cheat, she has alleged a series of facts

which show that she refused to participate in cheating on the CRCT despite pressure to do so from

school supervisors. This classifies as an objection under O.C.G.A. §54-l-4(d)(3).

As to the fourth element, the Court finds that there is a sufficient causaJ relationship between the

protected activity and the adverse employment action. Most persuasive is the temporal proximity

between Plaintiffs February 3, 2014 meeting with Principal Crooms and Assistant Principal Danser,

during which she disclosed violations concerning grade changing at Brown Middle School, and her

being notified that her contract was not being renewed on March 3, 2014. To show sufficient causation

"[ ... ]a plaintiff merely has to prove that the protected activity and the negative employment action are

not completely unrelated", and Plaintiff here has met that standard. Albers v. Georgia Bd. of Regents of

Univ. Sys. of Georgia, 330 Ga. App. 58, 62-63 (2014). It is for the jury to decide the credibility of the

witnesses and whether Principal Crooms, Assistant Principal Danser, and Superintendent Davis should

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be believed in their testimonies that they had no knowledge of Plaintiffs disclosures to school

supervisors, testimony before the grand jury, or communication with the District Attorney's Office.

There is a Question of Fact as to Whether Defendant Has Provided Legitimate Non-Retaliatory Reasons

Having recognized that Plaintiff can establish a prima facie case of retaliation, the Court now

turns to whether Defendant has provided legitimate, non-retaliatory reasons for the adverse employment

action. Defendant contends that the non-renewal letter sent to Plaintiff on May 28, 2014 indicated the

legitimate reasons that her contract would not be renewed. Those reasons were: 1) incompetency for

failure to provide adequate instructional planning and strategies and to complete the requirements of the

Spring 2014 PDP; 2) willful neglect for failure to differentiate instruction, complete IEPs, and address

the individual needs of each student, 3) insubordination for failure to complete the Spring 2014 PDP and

the IEPs, and 4) other good cause. Keeping in mind that "[t]he employer need not persuade the court

that its proffered reasons are legitimate, as its burden is merely one of production, not proof. .. ", the

Court finds that Defendant has sufficiently produced a legitimate and non-retaliatory reason for

Plaintiffs non-renewal and thus the burden is shifted back to Plaintiff to show that each of the stated

reasons are pretextual. Tuohy v. City of Atlanta, 331 Ga. App. 846, 851 (2015).

Plaintiff Can Establish Retaliatory Animus

Defendant argues that Plaintiff cannot show that the proffered legitimate reasons for the adverse

action were pretextual because she cannot show that the decision makers involved had knowledge of her

disclosures when the adverse actions were taken, and thus there is no retaliatory animus. The Court

disagrees. Plaintiff can meet her burden of showing pretext by "a direct showing that a discriminatory

reason more likely motivated the (defendant] or by an indirect showing that the (defendant's]

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explanation is not credible." Id. Plaintiff has provided several pieces of evidence, including that: 1) there

is close temporal proximity between her meeting with Principal Crooms and Assistant Principal Danser

and her non-renewal, 2) the depositions and affidavits of the Georgia Professional Standards

Commission and her special education supervisor illustrate her highly qualified status and her own

testimony is evidence that there was fabricated information in her teaching evaluations, 3) Principal

Crooms and her special education supervisor attempted to prevent Plaintiff from going to meet with the

District Attorney's Office, and 4) Plaintiff had a history of satisfactory performance evaluations. This

evidence, taken in a light most favorable to Plaintiff, is sufficient to create a genuine issue of material

fact as to whether Defendant's stated reasons for not renewing Plaintiff's contract were merely pretexts

for retaliating against her.

For the reasons stated herein, Defendant's Motion for Summary Judgment is hereby GRANTED

on the basis of the applicable statute of limitations running as to any adverse employment claim

accruing on or before March 1, 2014 and DENIED on all other grounds.

SO ORDERED, ADJUDGED AND DECREED THIS 4th DAY OF October, 2017.

Filed and Served Electronically via Odyssey eFileGA

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