IN THE SUPERIOR COURT OF FULTON COUNTY ATLANTA JUDICIAL CIRCUIT STATE OF GEORGIA CHRISTOPHER ALBERS, Plaintiff, v. GEORGIA BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA; GEORGIA PERIMETER COLLEGE; ANTHONY TRICOLLI, IN HIS OFFICIAL CAPACITY, Defendants
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CIVIL ACTION FILE NO.2010CV193194 JUDGE CRAIG L. SCHWALL, SR. JURY TRIAL DEMANDED
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT COMES NOW PLAINTIFF and files this Response to Defendants’ Motion for Summary Judgment, as follows: I.
INTRODUCTION Defendants seek summary judgment on Plaintiff’s claims on three bases:
First, they claim that Plaintiff did not file his Complaint within the one year statute of limitations, even though it is undisputed that he filed his Complaint less than one year from November 19, 2009, which is the date of his notice of termination. Second, Defendants contend that his actions – including protesting and objecting to conduct described by the DeKalb County Assistant District Attorney as obstruction
of justice– were not protected under the Georgia Whistleblower Protection Act. Third, Defendants claim that they did not rely on Plaintiff’s protected activity, even though they have admitted that they did. Defendants’ contentions fail in all respects. II.
STATEMENT OF FACTS A. Background of Mr. Albers Employment and Experience Christopher Albers is a highly trained law enforcement officer, well
qualified to serve as Police Chief in a college environment. He holds a two-year degree from Golden West College; a bachelor's degree; and a master's degree in organizational leadership. He is a certified critical incident instructor through the Department of Homeland Security and the International Association of Campus Law Enforcement Administrators.
He has been trained in Hazmat Response
through the Office of Domestic Preparedness under the auspices of Homeland Security at the base in Anniston, Alabama. He has received executive training through the Georgia Association of Chiefs of Police as mandated by the Georgia Peace Officer Standards and Training Act, O.C.G.A. §§ 35-8-20 and 35-8-20.1. He is also P.O.S.T. certified in the State of California and Georgia. ((Office of State Administrative Hearings, Albers v. Ed. Of Regents, OSAH-REGENTS-AA1028239-67-GATTO, Vol. II, hereinafter referred to as "OSAH, Vol. II," p. 444445).
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Mr. Albers’ law enforcement experience began in 1993 as a police officer at Biola University in California, where he worked his way up to become Deputy Chief. (OSAH, Vol. II, p. 445). He served as Deputy Chief for eight years, until accepting the position of Chief of Police at Georgia Perimeter College on March 1, 2005. (Id). It was shortly after taking this position that he completed his Master’s Degree, writing his thesis on an organizational assessment of the Department of Public Safety at Georgia Perimeter College. (Id). Through conducting his organizational assessment, Mr. Albers found a Public Safety Department which was in disarray. It had 12 “sworn” (P.O.S.T. certified) officers – including the Chief of Police – to cover five campuses in three counties. Sworn officers were being supervised in their law enforcement duties by an untrained, unsworn school administrator, a violation of the P.O.S.T. Act. (Id., p. 446; O.C.G.A. §§ 35-8-17, 35-8-20 and § 35-8-20.1). Morale was extremely poor, in part due to the relationship between the Department of Public Safety and the rest of the College, and the turnover rate was very high. (Id., p. 447). Once Mr. Albers became Chief, morale began to improve and the turnover rate began to steadily diminish. (Id., pp. 447-448). Prior to November of 2008, Mr. Albers never received any criticism of his performance. (Id., pp. 448-449). Instead, each year he received the maximum raise possible; every strategic initiative he proposed was adopted, and his budget 3
was increased from $1.1 million to $4.2 million in three and a half years. (Albers December 16, 2011 Dep., “Albers Dep. II”, p. 111). This all changed – as Ron Carruth described it, the wheels came off the vehicle – in November of 2008, when Mr. Albers objected to and sought to prevent the College interfering from in a criminal investigation and prosecution. (OSAH, Vol. II, pp. 421-422). B. Mr. Albers’ Protected Activity Mr. Albers engaged in protected activity under the Whistleblower Act on numerous occasions during his last year of employment.
As stated in his
Complaint, these include: •
Objecting to the actions of Defendants, through President Tricoli,
Vice President Ron Carruth, and College Ombudsman Karen Truesdale in interfering with an on-going criminal investigation and arrest of student Vandasha Anderson; •
Refusing to cease the criminal investigation or otherwise interfere
with the prosecution of Ms. Anderson; •
Notifying the Dekalb County Chief Assistant District Attorney, Don
Geary, of the instructions Plaintiff had been given to seek to influence the prosecution of Ms. Anderson; •
Objecting to Executive Vice President, Ronald Carruth, directly
supervising sworn officers and issuing written reprimands to the Deputy
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Chief of Police, Garry Tuttle, and Lieutenant Cynthia Franklin, in violation of the POST Act. •
Objecting to Defendants taking civilian control of the operation of the
Georgia Perimeter College Police Department, in violation of the POST Act; •
Refusing the repeated “request” by Defendant Tricoli that Plaintiff
hire Todd Adams, Dr. Tricoli’s close personal friend, as either a sworn officer or criminal investigator, on the basis that Mr. Adams was a convicted criminal. Each of these incidents will be discussed below. Importantly, Defendants have failed to discuss the violations of the Post Act in their Motion for Summary Judgment. However, as will be shown herein, their desire to directly control the law enforcement activities of the Public Safety Department – including criminal investigations and hiring of Mr. Adams – underlay much of the conflict on which they based Mr. Albers’ termination. 1.
The Laptop Incident
On October 28, 2008, a student at GPC reported to the Public Safety Department that his laptop had been stolen. (Truesdale Dep., V. II, p. 94, Ex. 12, D-0746). The Public Safety Department investigated the matter and found video tape showing that another student, Vandashia Anderson, had taken the laptop. (Id, D-0747 to D-0752). Although the evidence was clear – she was on video taking the 5
laptop from a classroom -- the Police Department first sought to mediate the dispute and reach a resolution between Ms. Anderson and the victim which would avoid Ms. Anderson’s arrest in exchange for her paying restitution. (Truesdale Dep. V. II, p. 94, Ex. 12, D-0742 to D-0743). However, after first agreeing to pay restitution, Ms. Anderson reneged on this agreement. (Truesdale Dep., pp. 20-21, 94-95). The victim of the theft decided to press charges. (Truesdale Dep., p. 91). A warrant was issued for Ms. Anderson’s arrest by a DeKalb County judge and she was taken into custody. (Truesdale Dep., pp. 94-95, Ex. 12, D-0757). Ms. Anderson’s mother, a Ms. Diedre Anderson-Gipson (Truesdale Dep., Vol. I, p. 25)., then contacted Karen Truesdale, the Director of Human Resources. Ms. Anderson’s mother complained about the fact that her daughter had been arrested, the manner in which the police officers, Sgt. Chris Davis and Lt. Alex Neville had, handled the criminal investigation, and the fact that Sgt. Davis, when asked by the Judge for a bond recommendation, recommended a bond higher than Ms. Anderson-Gipson believed should have been set. (Truesdale Dep., V. I., pp. 89, 21; V. II, pp. 81-83). At this point, the dual standard employed by GPC Administration came into play. Under this standard, criminal behavior by students of GPC – even if they victimize other students – should not be criminally prosecuted, while the identical conduct by non-students should be prosecuted to the fullest extent. (Carruth Dep., 6
V. II, pp. 19-24; Truesdale Dep., V. I, p. 89-91; Rasmus Dep., p. 40-41).
They
have freely admitted believing that students who commit on campus crimes against other students should be treated better than non-students who commit identical crimes in identical circumstances. (Id).1 It was the Public Safety Department’s refusal to go along with this double standard that – in the words of Ron Carruth – caused the “wheels to come off the car” and was a precipitating factor in the decision to terminate Plaintiff. (OSAH, V. II, p. 422; Carruth Dep., V. III, p. 15, 34 and Ex. 7). The first notice Mr. Albers had of what came to be called “the laptop incident” was when HR Director Karen Truesdale, in-house counsel Warren Fortson, and Dean Mary Hickman-Brown telephoned Mr. Albers on November 17, 2008, the night of Ms. Dierdre Gipson’s complaint. (Albers Dep., V. I, p. 21). During this telephone call, Mr. Albers was told to drop the charges, to “unarrest” Ms. Anderson, and to personally go down and get her out of jail. (Id., p. 22). He heard Ms. Truesdale state that Ms. Anderson should never have been arrested and that the officers behaved improperly in arresting her. (Albers Dep., V. II, p. 29). Mr. Albers refused their request. (Id). That same night, Ms. Truesdale sent an 1
Although Mr. Carruth, Mr. Rasmus, and Ms. Truesdale have described this double standard as being based on concern for students, one central issue in this case appears to be the fact that Ms. Anderson’s mother was in some way connected to the radio station, V-103. (Carruth Dep., V. I, pp. 97-99, Ex. 2). As a result, Mr. Carruth stated that he would keep Dr. Tricoli “in the loop” regarding Ms. Anderson. (Carruth Dep., p. 103-104, Ex. 3). Although he denied communicating with Dr. Tricoli regarding this matter (Carruth Dep., p. 104-105), the evidence shows to the contrary. (Carruth Dep., V. II, pp. 6-7, Ex. 1).
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email to Mr. Carruth giving her summary of the complaint by Ms. AndersonGibson. (Carruth Dep., V. III, Ex. 1). Mr. Carruth promptly forwarded it to the President of the College, Anthony Tricoli. (Id). Ms. Truesdale then sought to conduct her own “investigation” of the propriety of the arrest, apparently on the grounds that that it was a human resources investigation into alleged misconduct. (Truesdale, V. II, p. 25). However, at the time, she knew of no misconduct or alleged misconduct. (Id, pp. 25-27). In fact, Ms. Truesdale’s purpose – in concert with Mr. Carruth and Mr. Rasmus – was to prevent Ms. Anderson from being prosecuted or, failing that, to use any influence they could bring to bear to reduce the charges. (Albers Dep., V. II, pp. 41-42, 141). She had told Mr. Albers in no uncertain terms – before she had any information other than what Ms. Anderson-Gibson alleged -- that she disagreed with the decision to arrest the student (Albers Dep., V. II, p. 29). What Ms. Truesdale was actually investigating was not alleged misconduct, but the manner in which the officer had performed law enforcement duties, including conducting the investigation into Ms. Anderson’s conduct, seeking (and obtaining) an arrest warrant, interrogating Ms. Anderson, and his testimony during the bond hearing. (Rasmus Dep., pp. 15-17). Mr. Albers and the Deputy Chief, Garry Tuttle, were firm in objecting to the interference in the on-going criminal investigation, including Ms. Truesdale’s 8
desire to investigate the officer’s conduct. (Rasmus Dep., p. 17, 19-20, 23). Mr. Albers and Georgia Perimeter College Deputy Chief Garry Tuttle both objected to Ms. Truesdale’s investigation on the basis that she was interfering in the criminal investigation by using her “investigation” of the officers’ action in arresting Ms. Anderson as a means of derailing the prosecution. (Albers Dep. II, pp. 41-43, 141). At the time, she was insisting that she interview potential witnesses even before the police had conducted their investigation and, in fact, became irate when Mr. Albers prevented her from interviewing the officers before they were interviewed by the Police Department. (Albers Dep., II, p. 85-86). Ms. Truesdale had already expressed the opinion that Ms. Anderson should not have been arrested. (Albers Dep. II, pp. 41-42). Ms. Truesdale continued, even after it was clear that Ms. Anderson had been properly charged and was guilty, not only of the theft, but of obstructing the investigation and tampering with witnesses. The day after Ms. Anderson was arrested – the day after Ms. Truesdale received the complaint – Mr. Albers and Mr. Tuttle obtained a confession from Ariel Butcher, a witness identified by Ms. Anderson, admitting that the statement Ms. Butcher had previously given police was a lie. (Truesdale Dep., Ex. 10). Ms. Butcher admitted that Ms. Anderson had sold the laptop to another student for $400 and that Ms. Anderson had asked her to lie to the police. (Id). 9
Mr. Albers advised Ms. Truesdale of that fact. (Truesdale Dep., V. II, p. 43). Instead of ceasing her investigation, Ms. Truesdale began investigating the fact that Mr. Albers and Mr. Tuttle had interviewed Ms. Butcher. (Truesdale Dep., p. 41, Ex. 11). Despite this evidence, Ms. Truesdale stated in her email to the GPC Administration on November 18, 2008: And the fact still remains that Davis took action without conducting a full investigation and that neither he now Neville conferred with Tuttle or Albers before taking such a significant action as taking a warrant against a student. (Truesdale Dep., Ex. 10, p. 74). She has admitted that the “action” that “Davis took” that she was investigating (at least) included the arrest of Ms. Anderson and, additionally, included the fact that Davis gave sworn testimony at Ms. Anderson’s bond hearing. (Truesdale Dep., pp. 82-83). Even after it was clear that the arrest was valid and that Ms. Anderson – who ultimately confessed – was guilty of the crime, the GPC Administration continued to try to put a thumb on the scales in her favor. Mr. Albers was directed by Ron Carruth to contact the DeKalb County District Attorney to seek the dismissal or reduction of the charges against Ms. Anderson. He described the circumstances as follows: Q What do you remember about your conversation with him? A My recollection of my first conversation with him was after being directed by James Rasmus and Ron Carruth to contact him to get these charges dropped or otherwise reduced for Vandashia Anderson. 10
We had gone back to our administrative office and I asked Garry to get Don Geary on the phone, because Garry had already spoken to Don and they had a relationship, and I felt that because of Garry's training and experience and the fact that they had already spoken previously that he could start this conversation. And so my recollection is that he called Don Geary, they had a conversation in his office, and at some point during that conversation Garry felt that he needed to bring me into this conversation. He placed Don Geary on hold, came into my office and that is where we placed him on speaker phone. And that is when Don asked me to tell him my understanding of the case. And I explained to him the facts of the case, and then I mentioned, I guess somewhat in passing, the concurrent investigation that Karen Truesdale was conducting. And he stopped me and said, tell me about this concurrent investigation. And I explained to him that Karen Truesdale was conducting an investigation into the actions of our Officers based on a complaint by the suspect's mother, who had complained about the fact that her daughter had been arrested and that certain statements were made regarding the bond amount, and that she was filing a complaint, and that Karen Truesdale was investigating it. And after describing to him everything that I knew about what Karen's activities were and the altercation that she had had with Garry, I believe the previous day, Don Geary said to me something to the effect, I don't know the exact words, but my recollection of it is, you just give me the word and I'll come down there and arrest her. (Albers Dep., V. II, pp. 47). Although Defendants have claimed that Mr. Albers was unaware of the scope of investigation that Ms. Truesdale was undertaking and could not identify any laws which it violated, this is flatly untrue. As Ms. Albers testified in his deposition, he described his concerns to his fellow Police Chiefs in the Board of Regents, in seeking advice about the matter, as follows: 11
A That she was attempting to interview our Police Officers regarding their conduct during the investigation, that she was attempting to interview witnesses, the suspect and the victim regarding the substance of the case, and that she had questioned the validity of the arrest to me personally. (Albers Dep., p. 32).
Mr. Albers described this conduct to Mr. Carruth as
constituting obstruction of justice, interference with a criminal investigation, and interference with his supervision of the activities of sworn officers. (Albers Dep., p. 33-34).
He explained during his deposition that it is not simply a matter
affecting an individual case, but that the interference with criminal investigations ahs the potential to bias the Department of Public Safety in future investigations as well. (Albers Dep., Vol. II, pp. 87-88, 121-125). As he testified: This is not a matter of just a college having concern about how this goes for this particular individual. This is an endemic problem of a college seeking to inappropriately influence the Department of Public Safety to exercise their will. And that is just simply not their call. And for them to pretend otherwise is a gross misrepresentation of the facts. (Albers Dep., V. II, p. 125). He discussed with Bruce Holmes, at the Board of Regents, his attempts to reason with Mr. Carruth about the interference with the criminal investigation that this posed and was encouraged to pursue this course. (Albers Dep., V. II, p. 33). Mr. Albers also sought the advice of other Police Chiefs of campus public safety departments. He spoke to Jimmy Williamson at the University of Georgia; to the Chief at Emory University; to the Deputy Chief at Georgia Gwinnett; to the Chief 12
at Valdosta State; to the Chief at Augusta State. (Albers Dep., V. II, p. 119-120). The consensus was that Truesdale and GPC were acting improperly. (Albers Dep. V. II p. 120). As he described it: [T]his is higher education's dirty little secret. This is why the Clery Act had to be passed by the federal government, because colleges actively engage in preventing their campus law enforcement agencies from carrying out their duties that might in some way cast a bad light on the college. College is in the business of making money, and when a college has bad crimes occurring on its campus, that affects their bottom line. And the federal government found that colleges actively engage in trying to withhold information from the public that would enlighten them as to what's going on on their property in the way of crimes. And, hey, I mean, colleges every year are fined $27,500 for that kind of activity. It happens all the time. As a matter of fact, it's in the news, you may know that Virginia Tech was fined $55,000, $57,000, I think it's $27,500 times two, right, $57,000 for what it claimed was Virginia Tech's improper handling of the Cho Seung-Hui shooting. So this a very real problem. (Albers Dep., II, p. 122). Mr. Albers believed that given her expressed intention and her insistence on conducting her investigation prior to or concurrently with the police investigation it had the potential for corrupting the police investigation and that, therefore, her conduct violated O.C.G.A. § 16-10-50(a)(2). (Albers Dep., V. II, p. 141-142). He testified that the pattern of behavior demonstrated by the Administration, of which this was one instance, was hindering the sworn law enforcement officers in the performance of their duties, a violation of O.C.G.A. § 16-10-24.
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2.
The Christie Wheeler report
The “laptop incident” was not the only interference with police investigations by the GPC administration. In the fall of 2008, a student named Christie Wheeler had alleged that she was being stalked, apparently because other students were looking at her.
Ms. Wheeler was interviewed by Lt. Cynthia
Franklin, who investigated the complaint. (Franklin Dep., p. 6). Lt. Franklin, who is Crisis Intervention Team (“CIT”) certified, has received training in recognizing behaviors indicative of mental disturbance or mental illness. (Franklin Dep., pp. 6-7). A Crisis Intervention Team is responsible for responding to calls concerning individuals exhibiting mental disturbance and making a judgment whether that individual needed to be taken in on a 72 hour hold. (OSAH, V. II, p. 463). As part of her duties as a law enforcement officer, if she receives a complaint from an individual who is exhibiting behaviors indicative of mental illness, it would be her obligation to include that information in her report. (Franklin Dep., p. 7). Midway through her interview of Ms. Wheeler, Lt. Franklin began to observe behavior indicative of mental disturbance. (Franklin Dep., p. 8). After completing her interview of Ms. Wheeler, Lt. Franklin wrote a report in which she accurately described her observations and the conclusions she had reached
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regarding Ms. Wheeler’s behavior as potentially arising from mental illness. (Franklin Dep., pp. 8-9). Ms. Wheeler (like Ms. Anderson) had a friend who is an attorney. Her attorney friend wrote to Dr. Tricoli to register a complaint about the manner in which Ms. Wheeler’s criminal complaint had been addressed. In her complaint, she described Ms. Wheeler as a “petite, attractive, blonde-haired, blue eyed Caucasian woman over 40”. (Tricoli Dep. V. I, Ex. 1). Dr. Tricoli forwarded the complaint to Mr. Albers, along with Mr. Carruth and several other GPC administrators. He took personal charge of the investigation, requiring Mr. Albers to work with the Dean of Student Services to develop a plan to address the matter and to meet with Dr. Tricoli before taking any action. (Id). Dr. Tricoli instructed Mr. Albers not to speak to Lt. Franklin regarding the complaint until further notice. (Tricoli Dep., p. 92). In response, Mr. Albers forwarded the email to Deputy Chief Tuttle, advising him of Dr. Tricoli’s intervention in the matter.
(Id).
Mr. Tuttle
immediately responded, expressing his concern about Dr. Tricoli’s intervention into a police investigation and expressing his opinion that the complaints by Ms. Wheeler were not only unfounded, but that it appeared she may be having a psychotic episode. (Id). Tuttle stated to Plaintiff: "Did Tricoli learn nothing yesterday, let us do our job. He should not dictate how to do it." (Plaintiff depo. I, 15
Ex. 5, p. 1). Tuttle later states, "I would call Tricoli & tell him that you need to be left alone to do the job of investigating it [the stalking complaint]." (Plaintiff depo. I, p. 92, Ex. 5; Deposition of Ronald Carruth, January 26, 2012, "Carruth depo. II," pp. 33-34). In regards to the student who filed the stalking complaint, Tuttle states that there is "more than likely some form of psychotic episode going on here," and "I will bet any amount you want to on this that we will find this individual has mental problems." (Plaintiff depo. I, Ex. 5, p. 1). The following morning, Mr. Albers spoke to Dr. Tricoli directly.
He
informed him that he believed that Dr. Tricoli was improperly interjecting himself into a criminal investigation. (Albers Dep., V. II, p. 19-20, 26). Dr. Tricoli was clearly angered by Mr. Albers’ objection and told him “I’m the President. You’re barking up the wrong tree.” (Albers Dep. P. 20). Several months later, through an Open Records Act request from the student's attorney, Tuttle’s October 9, 2008 email surfaced. Sometime after the Open Records Act request, a meeting took place between, among others, President Tricoli, Carruth, Rasmus, and Truesdale, at which time Tuttle's email was discussed, resulting in a consensus to issue two reprimands to Tuttle regarding the email. (Carruth depo., pp. 63-64). It is clear that this “consensus” was driven by Dr. Tricoli’s retaliatory anger and that it was Dr. Tricoli directed that Mr. Tuttle
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and Lt. Franklin receive reprimands. (Carruth Dep., V. I, pp. 62-63, 113-114; OSAH, V. I, pp. 200-211; OSAH, V. II, p. 462). Mr. Tuttle received two reprimands directly from Mr. Carruth, both of them for the same email. (Id; Tricoli Dep., Ex. 2-3). On February 20, 2009, Carruth issued Tuttle two reprimands in regards to the October 9, 2008 email, one concerning the "disrespect for the Office of the President" and one concerning the comments about the student's mental state. (Tuttle, pp. 143, 146-147, Ex. 4, 5; Carruth depo., pp. 62, 113-114). Mr. Carruth also wrote a reprimand to Lt. Franklin, for Lt. Franklin’s truthful reference to her opinion of Ms. Wheeler’s mental state in the police report, and ordered Mr. Albers to issue it to her. (Carruth Dep., V. I, p. 114; Tricoli Dep., pp. 98-99; Franklin depo., p. 9; Plaintiff depo. I, p. 88; Carruth depo., p. 114). Mr. Albers carried out the order, but subsequently informed Mr. Carruth, yet again, that he believed that it was improper and a violation of the P.O.S.T. Act for Mr. Carruth to be undertaking to directly supervise sworn officers in the performance of their law enforcement duties. (Albers Dep., V. I, pp. 98-99; Albers Dep., V. II, pp. 142-143). In the specific instance relating to Lt. Franklin’s police report, he has testified that Carruth’s actions violated O.C.G.A. §§ 16-10-20 and 16-10-24. A "couple of days" after Plaintiff issued the reprimand to Franklin, he testified that he informed Carruth that he believed the reprimand was "completely 17
inappropriate and unethical." (Plaintiff depo. V. I, pp. 89-91; OSAH, Vol. II, p. 464). Plaintiff considered the direction by Carruth to issue the reprimands to be "extremely inappropriate, unethical conduct by my direct supervisor" because he thought it was undeserving, he had no knowledge of it beforehand, and because it was "inappropriate" for Carruth to direct him to submit Franklin's reprimand under his signature. (Plaintiff depo. I, pp. 87-88). 3.
Carruth’s direction of law enforcement activities
In early 2009, an incident occurred on the campus in which an individual had made threats towards nursing staff on the Clarkston campus. Rather than leave the law enforcement response to Mr. Albers, Mr. Carruth took over the day to day assignment of police personnel, assigning personnel to specific locations within the building at specific times. (Albers Dep., V. II, p. 89; OSAH, V. II, pp. 483-485). This was prior to Mr. Albers’ suspension. Mr. Albers, again, informed Mr. Carruth that these decisions are required, by the P.O.S.T. Act, to be made by sworn law enforcement personnel who are trained in these issues. (Id). Throughout this period, in reference to the Wheeler incident, the laptop incident, the nursing threats, and other matters, Mr. Albers was repeatedly advising Mr. Carruth that a policy needed to be put into place drawing a clear dividing line between the law enforcement functions of the Police Department and the administrative functions which were overseen by non-sworn personnel. (Albers 18
Dep., pp. 33-34, 52-54, 61-62, 132-135). This was not merely a complaint of “micro-management,” but a complaint that Mr. Carruth and Dr. Tricoli were violating the P.O.S.T. Act and interfering in the law enforcement activities of the Department. (Albers Dep., pp. 115-116). 4.
Hiring of Todd Adams
Not long after Anthony Tricoli was hired as President, he approached Mr. Albers and asked him to hire a friend of his, Todd Adams, into the Department. (Albers Dep., V. II p. 74). A And that's when he first described to me Todd Adams as a friend of his with whom he had worked in California, and who had been involved in a nasty divorce, as he had, and whom he credited with saving his life, because he had gone through a nasty divorce as well and didn't have a place to live, and Todd gave him a place to stay, and that he wanted to try to help this guy. He felt like he owed him. And he asked me, after describing to me some incidents in which Todd was involved, one being a DUI, and then the other being a DUI coupled with an attempt to break into his ex-wife's house while on duty and under the influence, and subsequently being stripped of his police powers, could he be hired as a Police Officer in Georgia. And to which I replied, "No, that's not possible. He's been stripped of his police powers. He's been arrested for a felony." And I seem to recall Tricoli communicating to me that he was arrested for a felony. And that, "No, as a result of his background, he could not be certified in the State of Georgia." (Id, pp. 74-75). Approximately five or six months later, Dr. Tricoli again approached Mr. Albers, asking him if he would hire Mr. Adams as a Training Captain or as a non19
sworn investigator. (Id, p. 76). Mr. Albers, again, refused, stating that he could not hire Mr. Adams into such a position, given his criminal record. (Id, pp. 76-77). He told Dr. Tricoli that, if Mr. Adams was interested in a position, he might be able to place him as an emergency manager, but that he would need to go through the hiring process and submit a background packet. (Id.). In the fall of 2008, during a training exercise (referenced in Defendants’ Brief, at p. 20) Dr. Tricoli approached Mr. Albers and Garry Tuttle about hiring Mr. Adams. (Albers Dep., p. 77). He told Mr. Tuttle the same story he had earlier related to Mr. Albers, about Mr. Adams being his very good friend who had “saved his life” and that he wanted Mr. Tuttle to “find him a position for him in public safety at headquarters.” (Tuttle Dep., p. 44). Mr. Tuttle told Dr. Tricoli that he could not lawfully be hired into a sworn position, in that (according to Dr. Tricoli) he had multiple DUI’s (one of which was in his patrol car) and a domestic violence conviction and had been fired for threatening the California Highway Patrol officers who had arrested him. (Tuttle Dep., p. 47-48). Both Mr. Tuttle and Mr. Albers, again, told him that Mr. Adams would have to submit the background investigation packet, consisting of his POST records, his employment records, and records of his criminal convictions. (Id, p. 48; Albers Dep., V. II, pp. 77-78). Mr. Albers and Mr. Tuttle both complained to Ron Carruth about Dr. Tricoli’s efforts to hire Mr. Adams. (Id., p. 79). Mr. Carruth confirmed that Mr. 20
Albers had registered an objection to hiring Mr. Adams. (Carruth Dep., V. II, pp. 45-46). Mr. Carruth even registered a concern to Dr. Tricoli that hiring Mr. Adams would not look good. (Carruth Dep., V. II, p. 56-57). The effective date of Mr. Albers’ termination was Friday, December 11, 2009. On the following Monday, December 14, 2009, Defendants advertised a vacancy in the Training Captain position. (Exhibit 1, hereto). That position – which had been vacated when Phil Richerson was forced to resign -- had previously been advertised on April 22, 2009.
(Exhibit 2, hereto).
The
advertisement was for a two week period between December 14 to December 31, 2009, part of which period the College was closed for the Christmas holidays. On December 14, 2009, the same day that the position was advertised as vacant, Todd Adams applied for the position. (Exhibit 3, hereto). Defendants then created a position for Mr. Adams, as Director of Homeland Security and Emergency Management.
(Rasmus Dep., pp. 73-74; Exhibit 4, hereto).
The
sequence of events demonstrates that GPC was still in the process of creating the position well after the decision had been made to hire Mr. Adams. (Rasmus Dep., pp. 73-76). Emails between Human Resources employees involved in creating this position demonstrate how wide spread was the knowledge that the hiring decision
21
was the produce of improper machinations. The following exchange between Mr. Rasmus and Thomas George (set out below in chronological order) is revealing: From: Thomas George Sent: Thursday, April 08, 2010 1:49 PM To: Donna Bravard Cc: Eunice A Curtis; Vera Lee Harper; Nicholas Thomas Marinelli; Ron Carruth; James L Rasmus Subject: RE: Director of Homeland Security and Emergency Management REVISED Importance: High Donna: Mr. Carruth gave me a call and I believe we are good to go. Please use THIS attached job description. Many thanks to ALL. Thomas From: James L Rasmus • Sent: Thursday, April 08, 2010 1:51 PM To: Thomas George Subject: RE: Director of Homeland Secllrity and Emergency Management REVISED Thanks for driving this to ground. From:-Thomas George Sent: Thursday, April 08, 2010 1:52 PM To: James L Rasmus Subject: RE: Director of Homeland Security and Emergency ManagementREVISED Wish I had a stake, Sir. Got a bad feeling about this one. Thomas 22
Mr. George’s premonition was correct. Mr. Adams only lasted a short time, as he was fired within six weeks for failing his preemployment drug test. (Rasmus Dep., p. 67; Carruth Dep., V. II, pp. 57-58). Mr. Albers stated that hiring Mr. Adams in a sworn position would violate the P.O.S.T. Act. Further, he identified a specific criminal statute which would be violated by the preferential hiring of Mr. Adams. Mr. Albers testified that testified that giving Mr. Adams preference in hiring without going through a competitive process would potentially have violated O.C.G.A. § 16-10-24. (Albers Dep. V. III, pp. 143-144). Thus, by refusing to go along with the unlawful hiring of Mr. Adams, Mr. Albers engaged in protected activity under the Whistleblower Protection Act. 5.
Mr. Albers threatened grievance regarding the violation of the P.O.S.T. Act
At present, Defendants contend that they had made the decision to terminate Mr. Albers’ employment in June of 2009. However, previously, Defendants have claimed that the decision was made only shortly prior to giving Mr. Albers’ the November 19, 2009 notice of termination. (OSAH, V. I, p. 71-72, 133). Mr. Carruth, in his written timeline of events, identifies two meetings immediately prior to the decision to terminate Mr. Albers, during which Mr. Albers refused to resign and stated that if his Chief of Police duties were not restored to him, he 23
would file a grievance with the Board of Regents. (Carruth Dep., V. II, Ex. 7). This threatened grievance, which was with respect to the continued violation of the P.O.S.T. Act by Carruth taking over day to day command of the Department, was protected activity under the Whistleblower Protection Act. C.
Mr. Albers’ Termination Was Retaliatory
In this case, there is both direct evidence and circumstantial evidence tying Mr. Albers’ termination to his protected activity. These facts are discussed below: 1.
There is direct evidence of retaliation
In this case, Defendants’ own words provide direct – or at least circumstantial – evidence of retaliation.
All of the persons involved in this
decision have stated that the “laptop incident” – in which Mr. Albers objected to what he (and an Assistant District Attorney) described as obstruction of justice and interference in a police investigation -- was one of the reasons that led to Mr. Albers’ termination. (OSAH, V. I, p. 24-28, 224, 236, 261-262, 293-295, V. II, pp. 350-356). Mr. Carruth has described this as the point at which “the wheels came off the car” and the relationship between Mr. Albers and Human Resources (in the person of Ms. Truesdale) deteriorated. (OSAH, V. II, p. 422). He stated that the reason that it concerned him was that “we have a deputy chief of police who’s threatening to arrest an administrator for Human Resources. It’s just not appropriate.” (OSAH., V. II, p. 356). 24
Mr. Carruth testified generally that Mr. Albers was terminated because he was failing to provide the right kind of “leadership” for the Department. The specific examples he gave on his own written chronology were (a) the laptop incident; (b) the Christie Wheeler “stalking” investigation – in which Mr. Albers objected to Dr. Tricoli taking over a criminal investigation at the request of counsel for a “petite, attractive, blonde-haired, blue eyed Caucasian woman over 40”. (Tricoli Dep. V. I, Ex. 1) and in which the Administration ordered that Lt. Franklin be reprimanded for accurately describing her observations in a police report. (Carruth Dep., V. II, Ex. 7). In his written explanation, which he read to Mr. Albers prior to the termination, he stated that “incidents like the student at Dunwoody and the deputy chief, the laptop at Decatur, statements concerning the president and the EVP and their leadership have resulted in my lack of confidence in the chief of police.” (Rasmus Dep., p. 138, Ex. 11). This constitutes direct evidence that there is a causal relationship between Mr. Albers’ protected activity and his termination. 2.
Defendants have offered other, false justifications
The reasons offered by Defendants -- other than the true, retaliatory reasons – are clearly pretextual. There are three specific instances identified, none of which are true: Mr. Albers’ one day per year delivery of grain to the GPC loading dock; the fact that Phil Richerson was aware he was being suspended when he was 25
asked for his gun and badge; a claim that he harmed morale by statements he made during meetings that he was directed to hold by the GPC Administration; a claim that he was “disrespectful” during an emergency preparedness exercise; and an allegation that he asked Lt. Franklin for her support after he was directed not to do so. These are false and pretextual justifications. a)
The delivery of grain
Three years prior to his termination, Mr. Albers asked the Director of Facilities, Keith Chapman, if he could use the GPC loading dock to deliver grain that he and a group of friends were using in a home beer brewing club. (Carruth Dep., V. II, pp. 121-122).
This fact was brought to light in early 2009,
investigated, and a report issued on April 28, 2009. (Id, p. 126). The audit found that the “offense” was not a terminable offense. (OSAH, V. I, p. 132). In fact, Mr. Albers received a reprimand, a one day suspension, and was required to pay back the cost to GPC over the prior three years. (OSAH, V. I, p. 67). The restitution was a whopping $348.81, including his own labor, storage costs, and all. (Carruth Dep., V. I., Ex. 4, Attachment 4). The audit also recommended that “controls such as warehouse policies and procedures” be put into place. (Carruth Dep., V. I, Ex. 4, Attachment 4).
Curiously, the audit report did not mention the fact that Mr.
Albers had requested and received permission, although this fact was known to all involved. (Champion Dep., p. 52, 72-73; Carruth Dep., V. I, Ex. 4, Attachmetn 4). 26
During this time, Defendants were in the process of putting together a facilities handbook. (Carruth Dep., V. I, pp. 128-130). Although Defendants have claimed that it was inappropriate for Mr. Albers even to request such permission, the fact is that Defendants did not have a policy which addressed the use of GPC facilities by employees for de minimis personal use. (Carruth Dep., p. 130). The facilities handbook came out on June 15, 2009. (Exhibit 5, hereto). Mr. Albers was reprimanded on June 16, 2009. (OSAH, V. I, p. 132). In short, this incident had nothing to do with Mr. Albers termination. It was a negligible use of facilities, with permission, contrary to no policy. Defendants have admitted that it was not a terminable offense and it is merely a red herring. b)
Phil Richerson’s suspension
Defendants have previously claimed that Mr. Albers was insubordinate in allegedly telling Phil Richerson that he was being suspended, when Mr. Richerson was summoned to a meeting to investigate his misconduct towards two recruits. (OSAH, V. II, pp. 322-323). However, they have acknowledged that Mr. Albers was directed to take Mr. Richerson’s gun and badge and that he would have known, from that fact alone, that he was being suspended. (OSAH, pp. 382-383, 385-387; Rasmus Dep., p. 123). Mr. Albers has testified unequivocally that he did not say anything to Mr. Richerson about his suspension. (OSAH, V.II, p. 466). Thus, this issue is, at least, disputed. 27
c)
Meetings with Department employees
After Phil Richerson resigned, Mr. Albers was instructed to have meetings with all of the employees in the Department, on the various campuses, to open up lines of communication. (OSAH, V. II, pp. 470-471). Contrary to Defendants’ description of this as being his decision, he was instructed to hold these meetings by Mr. Carruth and Mr. Rasmus. (Id.; Albers Dep., V. II, p. 65). He did exactly what he was told to do and what he had said he was going to do. (OSAH, V.II, pp. 470-475; Albers Dep., pp. 65-70). After the meetings were finished, he received an email telling him to stop having them. (OSAH, V.II, p. 475). Defendants have claimed that Truesdale, Rasmus, and Carruth were concerned with Plaintiff's judgment because he disclosed what they believe to be inappropriate and/or confidential information about the Richerson investigation and because he made negative statements about the administration at GPC. (OSAH, Vol. I, pp. 58, 60, 100-102, 246, 285, 298; OSAH, Vol. II, pp. 335-336). However, on this question there is (at least) a dispute of fact, as (1) these meetings were at their direction; (2) they knew what Mr. Albesr was going to discuss at these meetings, as he had cleared it with them ahead of time; and (3) out of the approximately one hundred employees who attended these meetings, Defendants have offered no testimony from a single employee indicating that Mr. Albers’ conduct was improper or upsetting to them. 28
In fact, the testimony that is in the record, from Lt. Franklin, is that Mr. Albers’ discussions at these meetings were very beneficial to morale in the Department. (Franklin Dep., pp. 41-42). In fact, what she stated was destructive of morale within the Department was the Administration’s constant interference in law enforcement activities. (Franklin Dep., pp. 39-42, 47-48). Thus, to the extent that Defendants have offered any evidence on this subject, it is disputed. d)
The emergency management exercise
Defendants have also claimed that Mr. Albers acted in a manner which offended Dr. Tricoli during an emergency management training exercise in the Fall of 2008. On or around October, 2008, GPC conducted an emergency and disaster preparedness training exercise, which involved a "simulated tabletop exercise" dealing with a fictitious hazmat spill, during which GPC employees would then simulate a response to the mock incident, for training purposes. (Plaintiff depo. I, pp. 11-12; Deposition of Cynthia Franklin, hereinafter "Franklin depo.," p. 50; Carruth depo., pp. 54-56). Mr. Albers shared the role of the incident commander with a deputy chief from the DeKalb County Police Department and a deputy chief from the DeKalb County Fire Department. (Albers Dep., V. I, p. 11-12). During the training exercise, there was disagreement between President Tricoli and "unified command," which included Mr. Albers, Mr. Tuttle, about how to handle the mock situation. (Plaintiff depo. I, pp. 12-13; OSAH, Vol. I, pp. 16529
66; OSAH, Vol. II, pp. 367-369, 451-453; Franklin depo., pp. 52-53; Carruth depo., pp. 55-60). The purpose of discussing their disagreement was to learn from each other. (OSAH, V. II, p. 369). The person who spoke out and disagreed with the decision by Dr. Tricoli and his Executive Team was Mr. Tuttle. (OSAH, V. I, p. 179). Mr. Albers was silent. (Id). The only thing that Defendants have claimed Mr. Albers did during that meeting – the basis for Dr. Tricoli’s testimony that he showed a “lack of respect” and “exhibited disgust” and was “very unhappy and very unpleased” was that he allegedly folded his arms, crossed his legs, and nodded his head while Mr. Tuttle expressed his opinion about whether the Executive Team had made the right decision to ignore the recommendation of the First Responders. (OSAH, Vol. I, pp. 179-186). However, even this minimal testimony is disputed, as Mr. Albers testified that he did not say anything during the debrief and that he did not, in any way, do anything to indicate disrespect of Dr. Tricoli. (OSAH, V. II, pp. 450-454). e)
The alleged discussion with Lt. Franklin
On June 16, 2009, Mr. Albers was given the reprimand and suspension regarding the grain incident.
His discussions during that conversation and
afterwards are on a tape recording he made of the meeting. After the meeting, he left and went to speak to Dr. Tricoli about the suspension. Because he left the recorder on inadvertently, the remainder of his discussions, until the recorder ran 30
out of space, are on the tape.
Of of the conversations on this recording,
demonstrating that it occurred on June 16, 2009, was a conversation with Cynthia Franklin. On June 17, 2009, Mr. Albers was again called into Mr. Carruth’s office. He was told that there had been a report that Mr. Albers had solicited support for his leadership from his employees, and that this was making the employees uncomfortable.
(Rasmus, pp. 83, 102-102; Carruth depo., pp.
132, 136; OSAH, Vol. II, p. 479). Mr. Carruth testified that it was this conversation with Lt. Franklin which resulted in the June 17, 2009 directive not to solicit support. (Carruth Dep., V. I, p. 135). Despite this testimony, Defendants claim that that it was after the Mr June 17, 2009 meeting that Mr. Albers spoke with Lt Franklin. However, Lt. Franklin testified that there was only one conversation of this sort between she and Mr. Albers. (Franklin Dep., p. 57). She acknowledged that this conversation could have occurred on June 16, 2009, by telephone. (Franklin Dep., pp. 33-34).
It obviously did, as it is on the same,
uninterrupted recording as the June 16, 2009 issuance of the reprimand. (Albers Dep., V. III, Ex. 7).
Further, given that Defendants have not
identified any other source of the information that Mr. Albers had spoken to an employee about whether that employee would be supportive, it is also 31
clear that it was this conversation that was the genesis of the June 17, 2009 directive not to speak to his subordinate employees. This is an important issue, as Defendants have acknowledged that there was nothing wrong with Mr. Albers talking to his direct reports – the Lieutenants – about whether they were supportive. (OSAH, V. I, p. 250). The only reason that they have claimed it was inappropriate is their contention that Mr. Albers had that conversation after the June 17, 2009 meeting. (OSAH, V. I, pp. 251-252). However, not only has Mr. Albers denied doing so (OSAH, V. II, p. 481; Albers Dep., V. II, p. 104-105), Lt. Franklin has also testified that there was a single conversation, which the tape recording shows was on June 16, 2009. (Franklin Dep., pp. 33-34, 57; Albers Dep., V. II, p. 102-103; Albers Dep., V. III, Ex. 7). 3.
Other evidence of retaliation
In addition to the foregoing, there is other evidence of retaliation. Of the four people involved in the laptop incident, Karen Truesdale sought to discipline two of them directly and admittedly because of their role in this matter. (Truesdale Dep., V. I, p. 35, 66, Ex. 7). Further, shortly afterwards, Mr. Tuttle was fired, because of his protected activity. Defendants claimed that it was a position elimination, but this was clearly pretextual. (Truesdale Dep.,
32
pp. 41-48, Ex. 3). Thus, all four of the individuals who were involved in the laptop incident were terminated, within the year. III.
ARGUMENT AND CITATION OF AUTHORITY O.C.G.A. § 45-1-4, the Georgia Whistleblower Protection Act, is intended to
protect public employees who report or refuse to participate in what they believe is wrongdoing, defined as “violations of or noncompliance with a law, rule or regulation.” O.C.G.A. § 45-1-4(d)(2). “Law, rule or regulation” is defined as including “any federal, state, or local statute or ordinance or any rule or regulation adopted according to any federal, state, or local statute or ordinance.” O.C.G.A. § 45-1-4(a)(2). The statute protects employees from retaliation for disclosures which are made to either (a) a supervisor or (b) a government agency. O.C.G.A. § 45-14(d)(2). It protects employees who object to or refuse to participate in what they reasonably believe is such a violation. O.C.G.A. § 45-1-4(c)(3). Plaintiff does not contend that individuals may be held liable under the Whistleblower Protection Act and assuredly does not seek such liability against the current Interim President, Rob Watts, who was not the President of GPC at the time. Defendant Watts is sued only in his official capacity, in order to ensure that there is an individual to whom this Court could direct an injunction requiring Mr. Albers’ reinstatement, should Mr. Albers prevail and Defendants argue that there is some limitation on the Court’s authority or the power of the Board of Regents to 33
effectuate such reinstatement. See Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). A.
Plaintiff’s Claims Are Timely
Defendants’ arguments regarding the statute of limitations are entirely misplaced. Defendants’ premise supposes that an employer’s threat to terminate an employee – even if it does not carry out that threat for months – will start the statute of limitations running even before the actual termination occurs. This premise is simply wrong. Even the authority cited by Defendants does not support the proposition. For example, in Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S. Ct. 498, 504, 66 L. Ed. 2d 431 (1980), the Supreme Court did not hold that a threat to later terminate an employee starts the statute of limitations running before the termination actually occurs. Instead, the Supreme Court held only that termination was the inevitable and nondiscriminatory effect of an allegedly discriminatory tenure decision. On that basis, the Court held that the tenure decision, rather that the effective date of termination, is the date on which the limitations period began to run. See id. at 258, 101 S. Ct. at 504. However, in this case, Mr. Albers’ November 19, 2009 termination letter was neither an inevitable effect of the earlier threats nor was it nondiscriminatory. Had the November 19, 2009 letter not been issued, Mr. Albers would have 34
continued in the employment of Georgia Perimeter College and the Board of Regents. Further, this letter was issued only after Mr. Albers advised them that he would file a grievance if he was not restored to his full duties and after subsequent discussions and agreement between Mr. Carruth, Dr. Tricoli, and officials within the Board of Regents. Mr. Rasmus claimed that the decision was made just a short time before the termination notice was issued.
The retaliatory motivation in
issuing this letter was the same as that which had engendered the threats of termination, with the added motivation of Mr. Albers’ stated intention of filing a grievance. There is an enormous difference between threatening to take an adverse employment action and actually taking that action. In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998), the Supreme Court applied this distinction to the sexual harassment context, finding that the failure to follow through on the threat was a material distinction between an actual adverse employment action. On similar grounds, the Court distinguished between constructive discharge and actual termination in Pennsylvania State Police v. Suders, 542 U.S. 129, 141-143, 124 S. Ct. 2342, 159 L. Ed. 2d 204 (2004). Further, whether a threatened termination is (or is not) an adverse employment action, this does not prevent the employee from seeking relief from 35
for the subsequent actual termination. AMTRAK v. Morgan, 536 U.S. 101, 119121, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002). "The existence of past acts and the employee's prior knowledge of their occurrence . . . does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed." 536 U.S., at 113, 122 S. Ct. 2061, 153 L. Ed. 2d 106. Both the November 19, 2009 termination letter and the subsequent affirmance of that termination by Dr. Tricoli were acts of retaliation. , In Stokes v. Savannah State Univ., 291 Fed. Appx. 931 (11th Cir. 2008), the Eleventh Circuit Court of Appeals addressed a claim under the Whistleblower Act and held that the statute of limitations began to run from either the date of the termination letter or the date on which the President affirmed the termination. In this case, the termination letter was given to Mr. Albers on November 19, 2009. Plaintiff’s claims were filed within one year of that notice of termination and, thus, were timely filed, from whichever date is used. B.
Mr. Albers’ Engaged In Protected Activity
Defendants claim that Mr. Albers did not engage in protected activity under the Georgia Whistleblower Protection Act.
Under that Act, an employee is
protected from retaliation under the following circumstances: (1) disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor 36
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 (O.C.G.A. § 45-1-4(d)(2)); (2) objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation (O.C.G.A. § 45-1-4(d)(3). In this case, Mr. Albers engaged in numerous protected acts, including refusing to participate in an unlawful effort to interfere with the prosecution of Ms. Anderson and his objections to the interference with the same by Karen Truesdale. His communications to the DeKalb County District Attorney about this unlawful interference – which resulted in ADA Geary telling him to “give me the word and I’ll come down there and arrest her” – was a protected communication to a government agency. His repeated efforts to prevent Ms. Truesdale from interfering in the criminal investigation of Ms. Anderson – where her stated purpose was to undermine that investigation and find that Ms. Anderson should not have been arrested – was clearly protected activity. Further, by objecting to Mr. Carruth and Dr. Tricoli from taking over the day to day control of the Police Department in the assignment of police officers, in the investigation of alleged crimes, in the writing of police reports, and in numerous other ways, Mr. Albers was engaging in protected activity. The P.O.S.T. Act 37
requires that the individual in charge of supervising the day to day law enforcement activities of sworn officers 1.
The P.O.S.T. Act
Plaintiff’s protected activity should be considered in the context of the requirements of the P.O.S.T. Act. Under this Act, oversight of law enforcement agencies and of sworn (P.O.S.T certified) officers having arrest powers is entrusted under Georgia law only to those who have had the requisite training and certification necessary to wield such powers.
This is one of the central
misunderstandings that Defendants have held throughout. They have operated under the belief that civilian administrators are entitled to undertake for themselves to run – in Defendants’ words, to “micromanage” -- the day to day law enforcement activities a sworn law enforcement agency and its sworn law enforcement officers. However, Georgia law is clear that only a sworn officer may serve in this capacity or undertake to perform these duties. O.C.G.A. § 35-1-12 provides as follows: Any county, municipality, or other public subdivision of this state which has a law enforcement agency shall declare a chief of police or a law enforcement head for such law enforcement agency who is required to be a certified peace officer pursuant to the provisions of Chapter 8 of this title, known as the "Georgia Peace Officer Standards and Training Act." The provisions of this Code section shall not apply to sheriffs.
38
The P.O.S.T. Act also require that a person supervising a police department or law enforcement unit be a sworn law enforcement officer. O.C.G.A. § 35-82(4) defines a “police chief” or “department head” as follows: (4) "Department head" means the chief executive or head of a state department or agency, a county, a municipality, or a railroad who is a peace officer and whose responsibilities include the supervision and assignment of one or more employees or the performance of administrative and managerial duties of a police agency or law enforcement unit. Such term does not include the Attorney General, the director of the Georgia Drugs and Narcotics Agency, a district attorney, a solicitor-general, a county or municipal fire chief, or peace officers employed exclusively as investigators of any such offices who do not exercise any law enforcement supervisory or managerial duties. The provisions of this paragraph shall not apply to any sheriff or to any head of any law enforcement unit within the office of sheriff. (emphasis added). The same Code Section defines “law enforcement unit” as follow: (7) "Law enforcement unit" means: (A) Any agency, organ, or department of this state, a subdivision or municipality thereof, or a railroad whose primary functions include the enforcement of criminal or traffic laws, the preservation of public order, the protection of life and property, or the prevention, detection, or investigation of crime; O.C.G.A. § 35-8-20.1 provides as follows: (a) Any newly appointed chief of police or department head of a law enforcement unit whose term of employment commences after June 30, 1999, shall successfully complete a minimum of 60 hours of law enforcement chief executive training at the next scheduled law enforcement chief executive training class sponsored by the Georgia Association of Chiefs of Police following his or her appointment. Such training shall be in addition to the basic training required of peace officers in Code Section 35-8-9. A sworn employee acting in 39
the capacity of a department head of a law enforcement unit for more than 60 days shall be required to attend training specified under this Code section and Code Section 35-8-20. The provisions of this subsection shall not apply to any sheriff or to any head of any law enforcement unit within the office of sheriff. O.C.G.A. 35-8-20 requires 20 hours of training, per year, for any person serving as a police chief or department head of a law enforcement unit.
In sum, these
provisions clearly require that a law enforcement agency employing sworn law enforcement officers will only be supervised by a sworn law enforcement officer. Neither Mr. Carruth nor Dr. Tricoli nor Ms. Truesdale are P.O.S.T. certified or trained. (Carruth Dep., p. 13; Tricoli Dep., p. 48-49; OSAH, pp. 203, 358-359). As a result, none of them are qualified under Georgia law to oversee the law enforcement activities of a “law enforcement unit” such as the GPC Public Safety Department. Mr. Albers repeatedly objected to President Tricoli and Mr. Carruth directly exercising the powers of the Chief of Police, including micromanaging law enforcement investigations, directing the assignments and duties of sworn law enforcement officers, and issuing reprimands to sworn officers based on whether they were properly conducting their law enforcement activities. Defendants do not deny that he registered these objections nor deny that these objections were the reason that he was fired. Defendants admit that he specifically cited the P.O.S.T. Act as the basis for his objections to their abuse of their authority as his supervisor 40
in taking direct control of law enforcement activities. (OSAH, p. 359; Tricoli Dep., pp. 48-50; Carruth Dep., pp. 14-15).
Instead, Defendants still fail to
understand that civilian administrators are not entitled to take over the management of the law enforcement activities of a police department or law enforcement unit. (Defendants’ Brief, at p. 18). There can be no dispute that Plaintiff’s complaints about Defendants’ violations of the P.O.S.T. Act were protected. Pattee v. Ga. Ports Auth., 477 F. Supp. 2d 1253, 1270-1271 (S.D. Ga. 2006) (complaint about violation of “POST regulations/state
law”
constituted
protected
activity
under
the
Georgia
Whistleblower Protection Act). Plaintiff specifically raised Defendants’ violation of the P.O.S.T. Act on numerous occasions and objected on yet more occasions to the continued interference with his supervision of law enforcement activities. Defendants’ interference with Plaintiff’s supervision of the law enforcement of his officers is a matter which, in general, would include almost all of the matters at issue in this case. Each of them will be discussed in more detail below. 2.
Albers Objected to the interference with the investigation and prosecution of Vandaisha Anderson
During the criminal investigation of Ms. Anderson’s theft of a laptop computer, Defendants attempted to derail the prosecution of Ms. Anderson. Mr. Albers was ordered to “unarrest” her; he was directed to use his influence with the District Attorney to have the charges dismissed; and, when Mr. Albers refused to 41
do what Carruth, Rasmus, and Truesdale were demanding, they authorized Truesdale to “investigate” whether the arrest and prosecution of Ms. Anderson was proper. Such an investigation is clearly a law enforcement function, as it directly implicates the law enforcement activities of the police officers employed in the Police Department at GPC. Further, Ms. Truesdale’s purported investigation was not directed at alleged misconduct of these officers other than the fact of Ms. Anderson’s arrest. Her contemporaneous emails make this clear. Even after she was aware that Ms. Anderson’s own friends had turned against her and directly implicated Ms. Anderson not only in the theft, but also in efforts to obstruct the investigation, she stated: And the fact still remains that Davis took action without conducting a full investigation and that neither he now Neville conferred with Tuttle or Albers before taking such a significant action as taking a warrant against a student. (Truesdale Dep., p. 74, Ex. 10). It was this investigation that Mr. Albers described to ADA Geary and that ADA Geary stated was grounds for her to be arrested. During his deposition, in addition to the POST Act, Mr. Albers described several laws which Defendants were violating, by allowing Ms. Truesdale to interfere in the criminal investigation of Ms. Anderson. (Albers Dep., p. 141-143). This conduct, in his opinion, constituted either a violation of or an attempt to violate O.C.G.A. §§ 16-10-24 and 16-10-50. Ms. Truesdale admitted that he 42
expressed these same objections at the time. (Truesdale Dep., pp. 31-34). As these are state laws, they fall within the definition of “laws, rules, or regulations” under the Whistleblower Protection Act. 3.
Albers refused to get the charges dropped against Ms. Anderson
Both Carruth and Rasmus have admitted that they viewed the arrest and prosecution of Ms. Anderson as improper, not because she was innocent of the charges, but solely because she was a student at GPC. Truesdale, while denying in her deposition that she held such opinions, expressed them in her contemporaneous communications, both verbally and in writing. In response, Mr. Albers refused to obey what he considered unlawful orders to “unarrest” Ms. Anderson and refused to interfere with her prosecution, despite their demands. His actions in this respect constitute “objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation.” O.C.G.A. § 45-1-4(d)(3). 4.
Mr. Albers reported Defendants actions to ADA Geary
Instead of complying with Defendants’ instructions, Mr. Albers telephoned ADA Geary and informed him that GPC administration was (a) conducting an investigation into the arrest of Ms. Anderson and (b) urging Mr. Albers to use his influence with the ADA to get the charges dropped or reduced. (Albers Dep., pp. 43
46-47; OSAH, pp. 456-458).
Mr. Albers told Mr. Geary that he was very
uncomfortable with requesting special favors for Ms. Anderson, to which Mr. Geary responded “You should be.” (OSAH, p. 457-458). After this conversation, Mr. Albers had another meeting with Mr. Carruth, Mr. Rasmus, and Ms. Truesdale, at which he advised them of his conversation with Mr. Geary. (OSAH, p. 458). They were very upset when they learned that Mr. Albers had informed Mr. Geary of Ms. Truesdale’s actions. (OSAH, p. 458). C.
The Evidence Shows That A Causal Connection Between Mr. Albers’ Protected Activity And His Termination.
The evidence in this case shows, directly, that Mr. Albers’ termination was caused by his protected activity.
Defendants have admitted that the laptop
incident, his objections to their violations of the POST Act, and his refusal to accede to their interference in the Wheeler investigation were the reasons for his termination. This evidence is sufficient to require that this case go to trial. Although Defendants rely on the burden shifting methodology, this is unnecessary where direct or circumstantial evidence exists. Where such evidence exists, the burden shifting analysis used by Defendants in their Motion is irrelevant. Jones v. Bd. of Regents of the Univ. Sys. of Ga., 262 Ga. App. 75, 585 S.E.2d 138 (Ga. App. 2003). Direct evidence of discrimination is "evidence which reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee" and "that, if believed, 44
proves the existence of a fact without inference or presumption." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (alterations and quotation marks omitted). Indirect evidence is circumstantial evidence. See Wright v. Southland Corp., 187 F.3d 1287, 1293 (11th Cir. 1999). There is more than one way to show discriminatory intent using indirect or circumstantial evidence. One way is through the burdenshifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L. Ed. 2d 207 (1981). Another way is "present[ing] circumstantial evidence that creates a triable issue concerning the employer's discriminatory intent." Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). A triable issue of fact exists if the record, viewed in the light most favorable to the plaintiff, presents enough circumstantial evidence to raise a reasonable inference of intentional discrimination. See id. If the plaintiff presents enough circumstantial evidence to raise a reasonable inference of intentional discrimination, her claim will survive summary judgment. Id. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1320, (11th Cir., 2012). See Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1255-56 (11th Cir. 2012). As to the claimed justifications which do not implicate Mr. Albers’ protected activity, each of them is directly disputed. Mr. Albers has denied that he engaged in the conduct at issue and the evidence clearly demonstrates that Defendants were aware he had done nothing wrong. In short, there is a direct factual dispute on this issue. This is sufficient to create a genuine issue for trial. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005); Caldon v. Bd. of Regents of the Univ. Sys. of Ga., 2011 Ga. App. LEXIS 661, * 9 (Ga. App. 2011) (“Where direct 45
and positive testimony is presented on an issue, the opposing party must show some other fact which contradicts the testimony. If this other fact is direct evidence, that is sufficient to allow the case to go to the jury;…”). Further, the fact that Defendants disciplined every person involved in the laptop incident, specifically identifying it as the reason for disciplining of Davis, Neville, and Mr. Albers, is evidence of retaliatory intent. The fact that they and falsely claimed to have fired Mr. Tuttle in a position elimination, is additional evidence from which a jury could find that they are offering false and pretexual reasons for their actions D.
Georgia Perimeter College Is A Proper Defendant
Although Plaintiff readily acknowledges that Interim President Rob Watts is not sued in his individual capacity, Defendants additional argument that Georgia Perimeter College is not a proper Defendant is incorrect. Under the Georgia Whistleblower Protection Act, a “public employer” is defined as follows: “(4) "Public employer" means the executive, judicial, or legislative branch of the state; any other department, board, bureau, commission, authority, or other agency of the state which employs or appoints a public employee or public employees; or any local or regional governmental entity that receives any funds from the State of Georgia or any state agency. Georgia Perimeter College certainly falls within the definition set out above. Weaver v. North Georgia Reg'l Educ. Serv. Agency, 243 Ga. App. 770, 534 S.E.2d
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463 (2000). As a result, particularly in light of Defendants failure to argue to the contrary, Defendant GPC should not be dismissed from this action. IV.
CONCLUSION This is not a case which the Court should decide on paper. There is too
much evidence of lawless behavior by College officials, too much evidence of retaliation, for the Court to take this factual decision from a jury. Plaintiff asks that the Court deny Defendants’ Motion for Summary Judgment and allow this case to go to trial. Respectfully submitted, _______________________________ MATTHEW C. BILLIPS Georgia Bar No. 057110 BILLIPS & BENJAMIN LLP 3101 Towercreek Parkway Suite 190 Atlanta, Georgia 30339 (770) 859-0751 Telephone (770) 859-0752 Facsimile
[email protected]
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