Whistleblower Update: Court of Appeals Focuses on Pretext Before Prima Facie Case

June 16, 2015

The Court of Appeals’ most recent decision in Tuohy v. City of Atlanta further clarifies the standard for bringing a claim under the Georgia Whistleblower Act (“GWA”), O.C.G.A. § 45-4-1. 771 S.E. 2d 501 (2015). In Tuohy, the former Atlanta City Treasurer brought suit 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 GWA. Specifically, Tuohy alleged that he was retaliated against for objecting to performing improper illegal financial transactions. The trial court granted summary judgment in favor of the City and Tuohy appealed. The Court of Appeals affirmed on the grounds that Plaintiff failed to show that the nondiscriminatory reason given by the city for his termination was pretextual.

As City Treasurer, Tuohy received an invoice for over $50,000 for advisory services. Tuohy was told by the City’s Chief Financial Officer (“CFO”) to pay an invoice exclusively with funds from the City’s Watershed Department. Tuohy refused to do this since he believed that the invoice was for services for multiple departments and not just the Watershed Department. Based on this belief, Tuohy objected to having the Watershed Department pay the entire invoice. A week later, Tuohy was terminated for “performance issues” although the City did not inform him of this reason until after his termination.

Interestingly, Court of Appeals stated that it did not need to address whether Tuohy had established a prima facie case of retaliation since he had failed “to satisfy his burden of establishing that the proffered reason for his termination was pretextual.” Id. at 505.

The Court noted that Defendant’s burden was merely one of production and not of proof and that the evidence presented by the City satisfied this burden. Id. at 506. Specifically, Tuohy’s termination for “performance issues” was allegedly based upon the fact that Tuohy was “not getting up to speed quick enough” and that in the month before his termination he had erroneously approved two sets of duplicate wires which the City asserted totaled between four and five million dollars and had threatened the husband of a former girlfriend. Id. at 505. The Court relied on the fact that Tuohy did not deny these acts but only disputed that they were the reason for his termination.

This decision could directly affect your case. If you are a public employee and believe you have been retaliated against for objecting to or reporting fraud, waste or abuse please contact our firm immediately at 404-873-8048 or firm@pcwlawfirm.com.

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