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Plaintiff ) NO. 17CV11306
vs. )
Defendant. )


This matter came before the Court on Defendant DeKalb County School District’s Motion

for Summary Judgement. Having reviewed the Motion, the Plaintiff’s Response, the arguments of

counsel, and the complete record submitted by the Parties, the Court finds as follows:


Plaintiff’s claims arise under the Georgia Whistleblower Act (“GWA”), O.C.G.A. § 45-1-4

and the Georgia Open Records Act, O.C.G.A. § 50-18-71 et seq.

On summary judgment, the Court views the facts in the light most favorable to the Plaintiff.

Jackson v. Payne, 326 Ga. App. 536, 536-38 (2014). So viewed, the record shows that Plaintiff

worked as a school resource officer (“SRO”) in the DeKalb County School District (“the District”)

from July 2014 until his termination in November 2017. Plaintiff’s District employment record

indicates he was placed on administrative leave in April 2017 as part of the events giving rise to

this litigation.

In essence, Plaintiff alleges that he reported that administrators were endangering children and

violating their obligations under mandated reporting statutes and Title IX, as well as destroying

and falsifying public records in aid of a cover-up, and suffered retaliatory action. First, Plaintiff

was transferred to Lithonia High School in early 2017, which Plaintiff characterizes as a much

more dangerous school rife with gang violence. It is undisputed that an altercation happened

between Plaintiff and a student during his time at Lithonia High School on or about March 22,

2017.The District shortly thereafter placed Plaintiff on administrative leave pending an

investigation of whether he wrongfully failed to preserve security camera footage of the March 22

incident. Plaintiff remained on administrative leave until November 6, 2017, when he was

terminated. The District asserts that it terminated Plaintiff because he wrongfully failed to preserve

the video footage and had a history of unsatisfactory job performance. Plaintiff alleges that both

the suspension and the termination were in retaliation for his ongoing whistleblower activities.


To prevail on summary judgment, the movant must demonstrate that there is no genuine issue

of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving

party, warrant judgment as a matter of law. O.C.G.A. § 9-11-56(c); Lau's Corp. v. Haskins, 261

Ga. 491, 491 (1991). If the record shows even the slightest evidence on each material element of

the non-movant’s claims, the Court must deny summary judgment and allow the case to proceed

to a jury. Moore v. Pitt-DesMoines, Inc., 245 Ga. App. 676, 680 (2000); Bruno's Food Stores v.

Taylor, 228 Ga. App. 439, 440-41 (1997).

At summary judgment, the Court must accept the non-movant’s version of the facts as true

and must draw all reasonable and justifiable inferences in favor of the non-movant. Tolan v.

Cotton, 134 S. Ct. 1861, 1863 (2014); Jackson v. Payne, 326 Ga. App. 536, 536-38 (2014).


a. Summary Judgment Must Be Denied as to Plaintiff’s Whistleblower Retaliation


The Georgia Whistleblower Act (“GWA”) states:

[A] public employer may not retaliate against a public employee for disclosing ‘a violation of
or noncompliance with a law, rule or regulation to either a supervisor or a government agency’
or for ‘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.’ Albers. v. Ga. Bd. of Regents of the Univ. Sys.
of Ga., 330 Ga. App. 58, 61 (2014) (quoting O.C.G.A. § 45-1-4(d)(2), (3)).

The burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-06 (1973), applies to analyze whistleblower claims under the GWA. Forrester v. Georgia Dept.

of Human Srvcs., 308 Ga. App. 716, 721-22 (2011). Plaintiff must first establish a prima facie case

of retaliation. Then, the District must proffer a legitimate, nonretaliatory reason for any adverse

employment actions. If the District does so, Plaintiff must show evidence sufficient to allow a jury

to find that the District’s stated reasons were mere pretexts for retaliation. Forrester, 308 Ga. App.


To establish a prima facie case, Plaintiff must demonstrate that (1) he was employed by a

public employer; (2) he made a protected disclosure or objection; (3) 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.

The Court finds sufficient evidence to establish a prima facie case of retaliation. The

District is a public employer that employed the Plaintiff at all times relevant to this litigation. The

record contains ample evidence from which a jury could find that Plaintiff repeatedly disclosed

and objected to numerous practices that he reasonably believed violated the law. 1 , 2 Plaintiff

suffered adverse employment actions in the form of a transfer, a suspension and effective pay cut

The Court rejects the District’s argument that law enforcement officers cannot claim whistleblower protection for
reporting crimes. Such an interpretation would effectively negate the GWA for an entire class of public servants and
run contrary to well-established precedent. See, e.g., City of Pendergrass v. Rentoul, 354 Ga. App. 618 (2020); Albers
v. Georgia Board of Regents of Univ. Sys. of Georgia, 330 Ga. App. 58 (2014).
The Court further rejects the District’s argument that a GWA claim cannot stand where a whistleblower reports the
violation of any statute that does not itself create a private cause of action. O.C.G.A. § 45-1-4 prohibits retaliation for
disclosing or objecting to violations of any law, rule, or regulation, regardless of whether the violated law, rule, or
regulation itself creates a private cause of action. Plaintiff is suing under the GWA, not under any of the statutes he
reported the District’s employees were violating.

and, ultimately, a termination. The Court also finds the record contains sufficient evidence that

could permit a jury to find that Plaintiff’s whistleblower activity was causally related to his

suspension and termination. See, Albers, 330 Ga. App. at 62.

The Court rejects the District’s argument that Plaintiff’s claims are partially time-barred

by the one year statute of limitations set forth in O.C.G.A. § 45-1-4(e)(1). The statute of limitations

for a GWA claim begins to run when the plaintiff first suffers actionable adverse employment

action. Albers, 330 Ga. App. at 66. Retaliatory conduct prior to any actionable adverse action is

relevant and admissible to establish causation and pretext, but it has no bearing on the statute of

limitations. See, Id.; Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 102 (2002). Thus, the

statute of limitations in this case began to run at the earliest, in April 2017 when Plaintiff was

placed on administrative leave and his pay was effectively cut. Plaintiff filed suit in October 2017,

well within the one-year statutory period.

The Court now turns to the District’s burden of proffering legitimate, nonretaliatory

reasons for any adverse employment actions taken against the Plaintiff.

The District has proffered two reasons for Plaintiff’s suspension and ultimate termination.

Specifically, the District asserts that an investigation established 1) that Plaintiff had a pattern of

poor performance and, 2) that Plaintiff wrongfully failed to preserve the video evidence of the

Lithonia incident.

Plaintiff meets his burden on summary judgment if evidence in the record would permit a

jury to determine that the District’s proffered reasons lack credibility, and that retaliation was the

real reason for the District’s adverse treatment of the Plaintiff. Tuohy v. City of Atlanta, 331 Ga.

App. 846, 851-52 (2015). The Court finds that Plaintiff has met his burden.

The Court rejects the but-for causation standard urged by the District. Even if a “but-for”

standard were to be applied, the United States Supreme Court has found that “but-for” causation

does not mean “sole cause.” Bostock v. Clayton Cty., 140 S. Ct. 1731, 1739 (2020). As long as

retaliation for protected activity was one reason the District punished the Plaintiff, “that is enough

to trigger the law.” Id.

The record contains sufficient evidence from which a jury could determine that the District

either has not met its burden of stating any legitimate nonretaliatory reason for its treatment of the

Plaintiff, or that its proffered reasons are merely pretexts for retaliation. Accordingly, the District’s

Motion for Summary Judgment must be denied with respect to Plaintiff’s GWA claims.

b. Summary Judgment Must Be Denied as to Plaintiff’s Claims Under the Georgia

Open Records Act, O.C.G.A. § 50-18-71 et seq.

The District seeks summary judgment on Plaintiff’s claim that it violated the Georgia Open

Records Act (“GORA” or “the Act”). The Act requires a public agency to respond to an open

records request within three days of its receipt by a designated custodian and to produce the

requested records as soon as practicable upon payment of costs. O.C.G.A. § 50-18-71 (b) (1) (A)-

(B). A plaintiff with substantial justification may sue an agency for violating the Act. O.C.G.A. §

50-18-73. A claim under the Act will stand where an agency defers production for over a month

without any reasonable explanation. See, e.g., Benefit Support, Inc. v. Hall County, 281 Ga. App.

825 (2006).

The undisputed facts show that the District’s custodian of records received Plaintiff’s open

records request no later than July 20, 2017. Retrieval was estimated to require ten business days

after payment of costs. Plaintiff paid the costs no later than August 2, 2017. It is further undisputed

that the District failed to produce any records in response to Plaintiff’s request until December 11,

2017. Because Plaintiff’s claim under the Open Records Act is substantially justified within the

meaning of the Act, it must be allowed to proceed to trial. The District’s Motion is denied.


For all the above and foregoing reasons, the District’s Motion for Summary Judgment is hereby

DENIED. The parties are hereby ORDERED to mediate this dispute in good faith; mediation

must be completed no later than December 30, 2022.

SO ORDERED, this 9th day of November, 2022.

Judge, Superior Court of DeKalb County

Order prepared and presented by:

/s/ Julie Oinonen
/s/ Esther Graff-Radford
Julie Oinonen (Ga 722018)
Esther Graff-Radford (Ga 940361)
44 Broad Street, NW, Suite 200
Atlanta, Georgia 30303
(404) 654-0288/ (404) 592-6225 FAX
Counsel for Plaintiff

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