SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
March 19, 2014
In the Court of Appeals of Georgia A13A2190. TUTTLE v. GEORGIA BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
MILLER, Judge.
Garry L. Tuttle sued the Board of Regents of the University System of Georgia
(the “BOR”), alleging that the BOR terminated him in retaliation for his
whistleblower activities in violation of the Georgia Whistleblower Act (“GWA”),
OCGA § 45-1-4. The trial court granted the BOR’s motion for summary judgment,
finding that Tuttle filed his claim outside the one-year statute of limitation period and
that there was no evidence that the BOR retaliated against Tuttle for engaging in
protected activity. Tuttle appeals, contending that there are disputed issues of material
fact concerning whether (1) the complaint was barred by the applicable statute of
limitations, (2) he disclosed specific violations of law to the Georgia Perimeter College (“GPC”) administrators, and (3) his termination was a violation of the GWA.
For the reasons that follow, we affirm.
On a motion for summary judgment, it is the movant’s burden to show that no jury question remains as to any material fact and that he or she is entitled to judgment as a matter of law. To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.
(Punctuation, citations, and footnotes omitted.) Edmonds v. Bd. of Regents of the
University System of Ga., 302 Ga. App. 1, 2 (689 SE2d 352) (2009).
So viewed, the evidence shows that, Tuttle became GPC’s Deputy Chief of
Police on August 1, 2007. In the summer of 2008, GPC President Anthony Tricoli
discussed the possibility of Tuttle finding a position for a long-time friend Todd
Adams, whom Tricoli described as having a criminal record that included several
DUI arrests and a domestic violence charge. Tuttle advised Tricoli that, due to
Adam’s criminal history, Adams could not be hired as a sworn police officer at GPC,
he could not become a certified law enforcement officer in Georgia, and, under
federal law, he could not carry a gun as a police officer. Tuttle suggested that Tricoli
2 find another position for Adams. Tuttle sent Adams a background packet, which
would have been necessary for further employment, however, Adams did not
complete or return the required forms. Nevertheless, in April of 2010, GPC hired
Adams into a non-sworn position in Public Safety as interim Emergency Operations
Chief.
In September of 2008, a GPC student complained to GPC officials that she was
being stalked. A GPC officer investigated the accusations and concluded that they
were not supported by probable cause. Tuttle reviewed the case and the investigator’s
findings, concurring with the investigator that there was no probable cause to believe
a crime was committed. Tricoli, GPC Executive Vice President for Financial
Administrative Affairs Ronald Carruth and GPC Ombudsman Karen Truesdale
became involved in the investigation after the student visited Tricoli to state her
belief that GPC police had been looking at her funny and possibly following her
around. Tuttle subsequently e-mailed his supervisor, stating that the student was
likely exhibiting psychotic behavior and that Tricoli should stay out of police
business.
In October of 2008, officers with the GPC Police Department investigated a
campus laptop theft and thereafter obtained a warrant to arrest a GPC student. The
3 suspect’s mother complained about the actions of the GPC public safety officers to
Truesdale, who told the student’s mother she would check into the matter. Truesdale
then emailed her supervisor, James Rasmus, as well as GPC Police Chief Christopher
Albers, Tuttle, Carruth and GPC’s legal advisor of the mother’s visit and asked for
copies of all police reports filed in the matter. Tuttle voiced concerns to Carruth and
Truesdale that Truesdale was interfering with Tuttle’s criminal case, and that it was
improper for her to investigate what he believed were police matters. Carruth
considered whether Truesdale’s review of GPC Public Safety’s handling of the laptop
theft investigation and the GPC criminal investigation into the theft could occur
simultaneously, and, concluding both investigations should go forward, directed
Truesdale to continue her review of GPC Public Safety. Carruth also asked Tuttle and
Albers to contact the local district attorney (“DA”) to inquire as to whether GPC
could make a recommendation in the case, such as whether the suspect’s charges
could be changed, dismissed, or reduced from a felony to a misdemeanor. Tuttle
advised Carruth that prosecutions are solely handled by the DA, and while GPC could
inform the DA that the college supported a certain course of action, it could not ask
the DA to dismiss the charges.
4 On February 20, 2009 Carruth issued Tuttle two written reprimands for his
handling of the stalking incident, referencing concerns over Tuttle’s disrespect for the
Office of the GPC President and Tuttle’s statements regarding the student’s mental
status.
In April of 2009, Tricoli, Truesdale, Rasmus, and Sheletha Champion, GPC
Senior Financial Operations Officer, met to discuss concerns over Tuttle and other
GPC Public Safety. It was decided at the meeting that GPC did not want hard-core
street cops, and Ms. Champion noted that “Tuttle is not a good fit - he’s gotta go [sic];
can’t get with the program, too much street cop.” Truesdale subsequently advised
Rasmus that Tuttle should be told that his leadership style and philosophy are not
congruent with the mission of GPC and that, coupled with the need to optimize the
limited personnel budget funds, his position would be terminated in order to meet
other staffing needs.
On June 2, 2009, Tuttle was advised verbally and in writing that, effective July
31, 2009, the position of Deputy Chief of Public Safety would be eliminated due to
an organizational restructuring to improve efficiency and effectiveness. . In August
of 2010, Tuttle filed suit against the BOR, claiming that his employment was
terminated in retaliation for his refusing to participate in practices of officials acting
5 on behalf of GPC, specifically the laptop investigation, the stalking incident, and the
hiring of Adams for the position of Emergency Operations Chief. This appeal ensued.
1. Tuttle argues that the trial court erred in granting GPC summary judgment
because there are disputed issues of material fact regarding whether the complaint
was filed within the statute of limitations. We disagree.
(a) Tuttle maintains he was not aware he had been retaliated against until the
end of 2009, when his former supervisor advised him that GPC had retaliated against
him. We disagree.
OCGA § 45-1-4
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SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
March 19, 2014
In the Court of Appeals of Georgia A13A2190. TUTTLE v. GEORGIA BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
MILLER, Judge.
Garry L. Tuttle sued the Board of Regents of the University System of Georgia
(the “BOR”), alleging that the BOR terminated him in retaliation for his
whistleblower activities in violation of the Georgia Whistleblower Act (“GWA”),
OCGA § 45-1-4. The trial court granted the BOR’s motion for summary judgment,
finding that Tuttle filed his claim outside the one-year statute of limitation period and
that there was no evidence that the BOR retaliated against Tuttle for engaging in
protected activity. Tuttle appeals, contending that there are disputed issues of material
fact concerning whether (1) the complaint was barred by the applicable statute of
limitations, (2) he disclosed specific violations of law to the Georgia Perimeter College (“GPC”) administrators, and (3) his termination was a violation of the GWA.
For the reasons that follow, we affirm.
On a motion for summary judgment, it is the movant’s burden to show that no jury question remains as to any material fact and that he or she is entitled to judgment as a matter of law. To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.
(Punctuation, citations, and footnotes omitted.) Edmonds v. Bd. of Regents of the
University System of Ga., 302 Ga. App. 1, 2 (689 SE2d 352) (2009).
So viewed, the evidence shows that, Tuttle became GPC’s Deputy Chief of
Police on August 1, 2007. In the summer of 2008, GPC President Anthony Tricoli
discussed the possibility of Tuttle finding a position for a long-time friend Todd
Adams, whom Tricoli described as having a criminal record that included several
DUI arrests and a domestic violence charge. Tuttle advised Tricoli that, due to
Adam’s criminal history, Adams could not be hired as a sworn police officer at GPC,
he could not become a certified law enforcement officer in Georgia, and, under
federal law, he could not carry a gun as a police officer. Tuttle suggested that Tricoli
2 find another position for Adams. Tuttle sent Adams a background packet, which
would have been necessary for further employment, however, Adams did not
complete or return the required forms. Nevertheless, in April of 2010, GPC hired
Adams into a non-sworn position in Public Safety as interim Emergency Operations
Chief.
In September of 2008, a GPC student complained to GPC officials that she was
being stalked. A GPC officer investigated the accusations and concluded that they
were not supported by probable cause. Tuttle reviewed the case and the investigator’s
findings, concurring with the investigator that there was no probable cause to believe
a crime was committed. Tricoli, GPC Executive Vice President for Financial
Administrative Affairs Ronald Carruth and GPC Ombudsman Karen Truesdale
became involved in the investigation after the student visited Tricoli to state her
belief that GPC police had been looking at her funny and possibly following her
around. Tuttle subsequently e-mailed his supervisor, stating that the student was
likely exhibiting psychotic behavior and that Tricoli should stay out of police
business.
In October of 2008, officers with the GPC Police Department investigated a
campus laptop theft and thereafter obtained a warrant to arrest a GPC student. The
3 suspect’s mother complained about the actions of the GPC public safety officers to
Truesdale, who told the student’s mother she would check into the matter. Truesdale
then emailed her supervisor, James Rasmus, as well as GPC Police Chief Christopher
Albers, Tuttle, Carruth and GPC’s legal advisor of the mother’s visit and asked for
copies of all police reports filed in the matter. Tuttle voiced concerns to Carruth and
Truesdale that Truesdale was interfering with Tuttle’s criminal case, and that it was
improper for her to investigate what he believed were police matters. Carruth
considered whether Truesdale’s review of GPC Public Safety’s handling of the laptop
theft investigation and the GPC criminal investigation into the theft could occur
simultaneously, and, concluding both investigations should go forward, directed
Truesdale to continue her review of GPC Public Safety. Carruth also asked Tuttle and
Albers to contact the local district attorney (“DA”) to inquire as to whether GPC
could make a recommendation in the case, such as whether the suspect’s charges
could be changed, dismissed, or reduced from a felony to a misdemeanor. Tuttle
advised Carruth that prosecutions are solely handled by the DA, and while GPC could
inform the DA that the college supported a certain course of action, it could not ask
the DA to dismiss the charges.
4 On February 20, 2009 Carruth issued Tuttle two written reprimands for his
handling of the stalking incident, referencing concerns over Tuttle’s disrespect for the
Office of the GPC President and Tuttle’s statements regarding the student’s mental
status.
In April of 2009, Tricoli, Truesdale, Rasmus, and Sheletha Champion, GPC
Senior Financial Operations Officer, met to discuss concerns over Tuttle and other
GPC Public Safety. It was decided at the meeting that GPC did not want hard-core
street cops, and Ms. Champion noted that “Tuttle is not a good fit - he’s gotta go [sic];
can’t get with the program, too much street cop.” Truesdale subsequently advised
Rasmus that Tuttle should be told that his leadership style and philosophy are not
congruent with the mission of GPC and that, coupled with the need to optimize the
limited personnel budget funds, his position would be terminated in order to meet
other staffing needs.
On June 2, 2009, Tuttle was advised verbally and in writing that, effective July
31, 2009, the position of Deputy Chief of Public Safety would be eliminated due to
an organizational restructuring to improve efficiency and effectiveness. . In August
of 2010, Tuttle filed suit against the BOR, claiming that his employment was
terminated in retaliation for his refusing to participate in practices of officials acting
5 on behalf of GPC, specifically the laptop investigation, the stalking incident, and the
hiring of Adams for the position of Emergency Operations Chief. This appeal ensued.
1. Tuttle argues that the trial court erred in granting GPC summary judgment
because there are disputed issues of material fact regarding whether the complaint
was filed within the statute of limitations. We disagree.
(a) Tuttle maintains he was not aware he had been retaliated against until the
end of 2009, when his former supervisor advised him that GPC had retaliated against
him. We disagree.
OCGA § 45-1-4 (a) (5) provides:
“Retaliate” or “retaliation” refers to the discharge, suspension, or demotion by a public employer of a public employee or any other adverse employment action taken by a public employer against a public employee in the terms or conditions of employment for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency...
Furthermore,
[a] public employee who has been the object of retaliation. . . may institute a civil action in superior court for relief. . . within one year after discovering the retaliation, or within three years after the retaliation, whichever is earlier.
6 OCGA § 45-1-4 (e) (1).
In this case, resolution of whether Tuttle’s complaint was timely turns on the
meaning of the phrase “discovering the retaliation.” OCGA § 45-1-4 (e) (1). “When
a statute contains clear and unambiguous language, such language will be given its
plain meaning and will be applied accordingly.” (Citations omitted.) Opensided MRI
of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010).
There is no dispute that, on June 2, 2009, Tuttle discovered that his position
was to be terminated effective July 31, 2009. . Although the issue of accrual of a
cause of action under the GWA has not been specifically addressed in Georgia, it is
well-settled that
when the question is raised as to whether an action is barred by a statute of limitation, 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. Mere ignorance of the facts constituting a cause of action does not prevent the running of the statute of limitation, for a plaintiff must exercise reasonable diligence to learn of the existence of a cause of action
(Citation and punctuation omitted.) Sandy Springs Toyota v. Classic Cadillac Atl.
Corp., 269 Ga. App. 470, 471-472 (1) (604 SE2d 303) (2004).Here, Tuttle’s cause of
action accrued and the one-year limitation period began to run when Tuttle first
7 discovered the retaliation in question, namely, that his position was to be terminated,
on June 2, 2009. See Stokes v. Savannah State University, 291 Fed. App’x. 931, 932
(2998 U.S. LEXIS 18624) (11th Cir. 2008) (employee discovered retaliation on the
date he received his supervisor’s letter of termination, or at the latest on the date the
president of the university affirmed the decision to terminate).
(b) Tuttle further contends that the statute was tolled due to fraud. We find his
argument unpersuasive.
OCGA § 9-3-96, which provides for the tolling of the applicable limitations
period for a defendant’s fraud, states that “[i]f the defendant or those under whom he
claims are guilty of a fraud by which the plaintiff has been debarred or deterred from
bringing an action, the period of limitation shall run only from the time of the
plaintiff’s discovery of the fraud.”
Because [OCGA § 9-3-36] provides for a departure from the general rule, requiring actual fraud involving moral turpitude or breach of duty to disclose because of relationship of trust and confidence, and does not toll the statute unless the fraud is distinguishable from that giving rise to cause of action, it must be strictly construed.
Trust Co. Bank v. Union Circulation Co., 241 Ga. 343 (245 S.E.2d 297) (1978).
8 There are two circumstances in which actual fraud will toll the statute of
limitation applicable to a cause of action. See Rai v. Reid, __ Ga. __, * 9-10 (1) (Case
No. S13A1073, decided Nov. 25, 2013). The first is where the actual fraud is the
gravamen of the action, and the second is when a separate and independent fraud
involving moral turpitude hinders a plaintiff from bringing an action. Id.
Here, the gravamen of Tuttle’s action is his termination by the BOR, not an
artifice by which the BOR deceived him. Moreover, even if GPC concealed the
reasons for Tuttle’s termination, Tuttle failed to show that he exercised reasonable
diligence in discovering any cause of action. “[T]he plaintiff must have exercised
reasonable diligence to discover the cause of action, notwithstanding the failure to
discover within the statute of limitation.” (Citation and footnote omitted.) Wilson v.
Obstetrics & Gynecology of Atlanta, 304 Ga. App. 300, 306 (2) (696 SE2d 339)
(2010). While Tuttle stated that he was informed by his former supervisor in late
November or early December of 2009 that the elimination of Tuttle’s position was in
fact retaliatory, Tuttle repeatedly acknowledged that he suspected and believed the
action to be retaliatory at the time he was informed of the termination of his position.
Despite this awareness, Tuttle points to no record evidence showing that he exercised
9 any attempt to discover whether he was being terminated in retaliation for engaging
in protected activity. See Wilson, supra, 304 Ga. App. at 306 (2).
(c) Further, although Tuttle argues that the 1-year limitation period was tolled
by his compliance with the ante-litem notice requirement in the Georgia Tort Claims
Act (“GTCA”), his argument is without merit.
The GTCA states that a notice of claim is only required in instances in which
a person, firm or corporation has a “tort claim against the state under this
article.”(Emphasis supplied.) OCGA § 50-21-26 (a) (1). Moreover, the right of action
provided in the Georgia Whistleblower Act is a waiver of Georgia’s sovereign
immunity that is separate and independent of the waiver in the Georgia Tort Claims
Act. See Colon v. Fulton County, 294 Ga. 93, 95 (1) (751 SE2d 307) (2013)
(affirming this Court’s holding that OCGA § 45-1-4 sets forth a specific waiver of
sovereign immunity); see also Pattee v. Georgia Ports Auth., 477 F. Supp. 2d 1253,
1269 (S.D. Ga. 2006) and Moore v. Gabriel, 2005 U.S. Dist. LEXIS 36202, *14-15)
(M.D. Ga. 2005). Tuttle’s claim was brought under the GWA, which does not contain
an ante litem notice requirement. Compare OCGA § 45-1-4 with OCGA § 50-21-26
(a) (1). Consequently, we hold that the statute of limitations under the GWA was not
tolled while Tuttle’s ante litem notice was pending.
10 2. Since Tuttle’s complaint was filed outside the statutory limit, we need not
consider the issue of whether his complaint stated a claim under the GWA.
Judgment affirmed. Barnes, P.J. concur, and Ray, J. concur in Judgment only.