FIRST DIVISION BARNES, P. J., MERCIER, and LAND, 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. https://www.gaappeals.us/rules
April 17, 2023
In the Court of Appeals of Georgia A23A0685. WYATT v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
BARNES, Presiding Judge.
Harold Wyatt appeals from the trial court’s order granting summary judgment
in favor of the Metropolitan Atlanta Rapid Transit Authority (“MARTA”) on Wyatt’s
claims brought against MARTA pursuant to the Georgia Whistleblower Act, OCGA
§ 45-1-4 (“GWA”). Because the trial court applied an incorrect legal analysis in
evaluating whether Wyatt met his burden of presenting evidence that MARTA’s
proffered reason for terminating him was pretextual, we vacate the trial court’s order
and remand for further action consistent with this opinion.
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” OCGA § 9-11-56 (c). “Summary judgments enjoy
no presumption of correctness on appeal, and an appellate court must satisfy itself de
novo that the requirements of OCGA § 9-11-56 (c) have been met.” Cowart v.
Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010). On appeal from the grant
of summary judgment, “[w]e must view the evidence, and all reasonable inferences
drawn therefrom, in the light most favorable to the nonmovant.” Tuohy v. City of
Atlanta, 331 Ga. App. 846, 846 (771 SE2d 501) (2015). So viewed, the evidence
showed the following.
MARTA hired Wyatt in October 2007. After serving as a bus maintenance
supervisor and then as rail maintenance supervisor, Wyatt was promoted to the role
of Safety Operational Officer (“SOO”) in MARTA’S Department of Safety and
Quality Assurance (“Safety Department”) in June 2016. As an SOO, Wyatt’s duties
included investigating rail and bus accidents and inspecting equipment, stations, and
operations to detect unsafe conditions. During his tenure as an SOO, Wyatt was
selected to represent MARTA at an out-of-state safety conference. And, prior to the
events at issue in this case, Wyatt was never subjected to any disciplinary action at
MARTA, other than two “write-ups” that were later rescinded.
2 In early 2019, a group of SOOs, including Wyatt, began meeting regularly to
discuss their safety concerns, including that MARTA was not complying with
applicable safety regulations and policies. During those meetings, Wyatt expressed
his concerns about MARTA improperly critiquing and editing reports submitted to
the Georgia Department of Transportation (“GDOT”), about electrical power and
equipment issues, and about harassment and retaliation for bringing up safety
problems. The SOOs discussed the need to raise their safety concerns with GDOT
because they did not believe that MARTA was addressing them.
That same year, Wyatt began raising his safety concerns with Safety
Department management. In January 2019, Wyatt complained to management that
emergency lighting checks at MARTA stations were not being overseen by SOOs as
required by the pertinent regulations and policies. He subsequently complained to
management that MARTA was improperly preventing SOOs from attending Project
Initiation Meetings, which he believed was a safety hazard that violated MARTA’s
policies and governing regulations, and that MARTA was not implementing
procedures it had promised GDOT and the Federal Transit Authority that it would
implement to prevent fatalities. Additionally, Wyatt complained to management about
3 directives received by the SOOs to report wayside fires as “smoke events” in
violation of applicable polices and regulations.
On May 6, 2019, GDOT received an anonymous email from “Concerned Safety
Advocates” alleging that MARTA’s “safety department [was] in a state of crisis and
in violation of its own safety plans, policies and procedures.” While Wyatt did not
compose or send the email, the email complained of many of the safety violations that
Wyatt and the other SOOs had discussed in their meetings. As a result of the
anonymous email, GDOT notified MARTA that it was initiating an investigation into
allegations that MARTA was not complying with its public transportation agency
safety plan. See 49 CFR § 674.25 (c). MARTA informed the Safety Department staff,
including Wyatt, about the GDOT investigation.
In July or August 2019, Wyatt met with several individuals, including Reginald
James, the Director of Safety for the Safety Department, and expressed his concern
that SOOs were experiencing harassment, bullying, and retaliation in the wake of the
anonymous email sent to GDOT. Following the meeting, Director James accused
Wyatt of being the “ringleader” of the SOOs and remarked that the other SOOs were
following Wyatt with respect to safety issues.
4 Beginning in September 2019 and over the ensuing months, Safety Department
management subjected Wyatt to what he described as a “flurry of discipline.”
Although he had not faced any serious discipline in his prior twelve years of
employment with MARTA, management began accusing Wyatt of failing to comply
with various Safety Department policies and directives and suspended him twice for
alleged disciplinary infractions, once in February 2020 and again in March 2020.
Wyatt disputed most of the alleged infractions and argued that there was no basis for
his suspensions. After Wyatt and the other SOOs raised their concerns about
MARTA’s safety compliance, Safety Department management also required them to
sign a confidentiality agreement or face termination. “To protect [his] job,” Wyatt
signed the confidentiality agreement even though he believed that the agreement was
illegal.
At the same time that he was being accused of disciplinary infractions, Wyatt
raised additional safety concerns with Safety Department management, including his
concerns that SOOs were not following GDOT approved policies and procedures
pertaining to the control and investigation of major accidents and that MARTA was
not following protocols to keep railway accident scenes safe. Wyatt also informed
management that he believed that MARTA was violating its Alertness Assurance
5 Policy by having SOOs work for extended hours without adequate rest. Additionally,
Wyatt did not respond to a stabbing incident at a rail station because he was
concerned that having SOOs (rather than trained law enforcement officers) respond
to stabbings was inconsistent with MARTA’s safety plan. During one meeting with
management in which Wyatt expressed his safety concerns about responding to
stabbings and shootings, Ella Martin-Lee, the Manager of Safety for the Safety
Department, asked Wyatt if he “wanted [his] job.”
In March 2020, Wyatt emailed MARTA’s chief legal counsel, complaining that
MARTA was in violation of the GWA and the Federal Whistleblower Act and that
as a result of the anonymous email sent to GDOT, SOOs were being “harassed and
bullied” by Safety Department management and were working under a “culture of
fear.” He also submitted two complaints to MARTA’s Human Resources (“HR”)
Department (one in February 2020 and another in March 2020), alleging that
MARTA had improperly suspended him on two occasions and was subjecting him to
harassment, intimidation, and retaliation. In an uncommon occurrence at MARTA,
the HR Department did not investigate Wyatt’s complaints and instead “placed [them]
on hold” and referred the matter to MARTA’s legal counsel.
6 After Wyatt submitted his complaints to the HR Department, on April 17, 2020,
Safety Department management placed Wyatt on a Performance Improvement Plan
(“PIP”), listing “interpersonal skills,” “following established protocols,” “following
the chain of command,” and “insubordination” as “Areas of Concern.” (Internal
capitalization omitted.) The PIP stated that Wyatt would “receive feedback on [his]
progress according to the following schedule” and then listed the dates of May 18,
2020, June 18, 2020, and July 17, 2020. However, on March 19, 2020, Gena Major,
the Assistant General Manager (“AGM”) of the Safety Department, sent an email to
MARTA’s chief legal counsel noting that the PIP was being suspended and that this
was “different from the guidance” discussed with counsel. Subsequently, on April 30,
2020, AGM Major emailed the HR Department to recommend that Wyatt be
terminated because he “stubbornly continued to ignore management directives.”
On May 13, 2020, Manager Martin-Lee circulated to Director James a
recommendation for Wyatt’s termination, asserting that Wyatt’s “willful failure to
perform the requirements of his job in a satisfactory manner exposes [MARTA] and
its employees to safety risks.” The recommendation recited the following chronology
of Wyatt’s disciplinary history: (1) on September 6, 2019, Wyatt received oral
counseling for failing to report an accident involving a fatality to his senior SOO; (2)
7 on September 12, 2019, Wyatt received oral counseling for failing to submit a weekly
status report on time; (3) on February 19, 2020, Wyatt signed an operational directive
to provide updated information when reporting to the scene of incidents while
performing on-call duties; (4) on February 24, 2020, Wyatt received a five-day
suspension for failing to follow protocol in responding to incidents and accidents; (5)
on March 11, 2020, Wyatt received a second five-day suspension for failing to
properly report back to work after his first suspension; (6) on April 17, 2020, Wyatt
was placed on a PIP; (7) on April 22, 2020, Wyatt failed to provide updated
information to management about a wayside fire, with the result that MARTA missed
its deadline for notifying GDOT about the incident; (8) on April 26, 2020, Wyatt
failed to turn in a report that was due that day after being reminded to do so earlier
that month; and (9) on May 1, 2020, Wyatt failed to attend a COVID-19 mask
distribution event. That same day, Director James and AGM Major concurred in the
recommendation for termination, as reflected by their signatures on the form, and
Manager Martin-Lee completed a “Termination Record” in which she checked the
box indicating that Wyatt was being terminated for “Unsatisfactory Performance” and
wrote “Failure to Follow Protocols” in the “Comments” section of the form. The form
8 was signed by Manager Martin-Lee and Director James under the section entitled
“Termination Approval.”
Also on May 13, 2020, Wyatt received a written notice of termination from
Manager Martin-Lee. The notice stated, “Please be advised effective close of business
today your employment with MARTA is terminated for unsatisfactory performance.”
The notice listed the same disciplinary history as set forth in Manager Martin-Lee’s
recommendation for termination, except for the failure to turn in the report by the
April 26, 2020 deadline.
Two of the other SOOs who were “most vocal” about raising safety concerns
also were terminated by MARTA. No other SOO who held that position at the time
the anonymous email was sent to GDOT remains in that role.1
1 In May 2021, GDOT issued a report of its findings from its investigation prompted by the anonymous email. The GDOT report found several instances of safety and other violations by MARTA, consistent with the allegations of Wyatt and the other SOOs, and required MARTA to institute certain corrective actions. The report also found that Wyatt’s February 2020 suspension violated MARTA’s policy on harassment and retaliation. On appeal, MARTA contends that GDOT’s findings contained in the report were inadmissible for purposes of summary judgment. But the trial court did not rule on the admissibility issue. “Therefore, we will not address the admissibility of such evidence in the first instance and instead will consider only whether the record as we now find it is enough to get [Wyatt] past summary judgment.” (Citation and punctuation omitted.) Richey v. Kroger Co., 355 Ga. App. 551, 551, n.1 (845 SE2d 351) (2020).
9 In July 2021, Wyatt brought the present action against MARTA, alleging that
MARTA’s adverse employment actions against him, including his termination,
violated the GWA. Following discovery, Wyatt filed a motion for partial summary
judgment on two elements of his claim: that MARTA was a public employer within
the meaning of the GWA and that Wyatt’s termination constituted an adverse
employment action under the statute. MARTA also filed a motion for summary
judgment seeking the dismissal of Wyatt’s GWA claims in their entirety. MARTA
contended that Wyatt could not establish a prima facie case under the GWA, that it
had a legitimate, non-retaliatory reason to terminate Wyatt’s employment, and that
Wyatt could not show that its proffered reason for his termination was pretextual.
The trial court issued its final order in October 2022. The trial court granted
Wyatt’s motion for partial summary judgment, concluding that the uncontroverted
evidence showed that MARTA was a public employer and that Wyatt’s termination
amounted to an adverse employment action under the GWA. Addressing MARTA’s
motion for summary judgment, the trial court found that Wyatt made out a prima facie
case of retaliation, but that MARTA articulated legitimate, non-retaliatory reasons for
the termination and Wyatt failed to come forward with sufficient evidence to create
a genuine issue of material fact as to whether each of MARTA’s proffered reasons
10 was pretextual.2 Consequently, the trial court granted MARTA’s motion for summary
judgment. This appeal by Wyatt followed.3
We begin with a summary of the applicable statutory scheme. The GWA
prohibits a public employer from retaliating 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,” OCGA § 45-1-4 (d) (2), 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
2 The trial court also ruled that based on the applicable statute of limitation, Wyatt could proceed with his GWA claim against MARTA for his alleged wrongful termination. However, the trial court ruled that Wyatt could not bring separate and independent GWA claims against MARTA for any retaliation that occurred before his termination, including his February 2020 and March 2020 suspensions, because those claims were time barred. Wyatt does not challenge these rulings by the trial court on appeal, and thus we do not address them. See Morris v. Mullis, 264 Ga. App. 428, 431 (590 SE2d 823) (2003) (“We do not consider issues not raised on appeal.”). 3 After the trial court issued its final order, Wyatt filed a motion for reconsideration. In November 2022, after Wyatt filed his notice of appeal from the final order, the trial court entered an order denying his motion for reconsideration. “It is well settled that a notice of appeal of a judgment divests the trial court of jurisdiction to consider a motion for reconsideration of that judgment, and thus the trial court lacked jurisdiction to rule on [Wyatt’s] motion for reconsideration.” Mughni v. Beyond Mgmt. Group, 349 Ga. App. 398, 402 (3) (825 SE2d 829) (2019). The trial court’s November 2022 order therefore “is ineffective and cannot be considered on appeal.” In the Interest of J. F., 310 Ga. App. 807, 808 (714 SE2d 399) (2011).
11 law, rule, or regulation.” OCGA § 45-1-4 (d) (3). Prohibited retaliation includes the
discharge of the employee. OCGA § 45-1-4 (a) (5).
Based on the statutory language, we have held that to succeed on a GWA
claim, the public employee must show “that (1) he was employed by a public
employer; (2) he made a protected disclosure or objection; (3) he suffered an adverse
employment action [such as being discharged]; and (4) there is some causal
relationship between the protected activity and the adverse employment action.”
(Citation and punctuation omitted.) Baptiste v. Mann, 360 Ga. App. 345, 348 (861
SE2d 212) (2021).
When analyzing claims brought under the [GWA], we apply the same burden-shifting analysis established by the United States Supreme Court for retaliation cases brought under Title VII of the Civil Rights Act of 1964. See McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802-803 (II) (93 SCt 1817, 36 LE2d 668) (1973). Under this framework, the plaintiff must first make a prima facie case of retaliation. If the plaintiff makes a prima facie case, the burden of production shifts to the employer to articulate some legitimate, [non-retaliatory] reason for the employment decision. If the employer successfully meets this burden of production, then the burden shifts back to the plaintiff to show that each proffered reason was pretext.
12 (Citations and punctuation omitted.) Franklin v. Pitts, 349 Ga. App. 544, 547 (826
SE2d 427) (2019). Mindful of this statutory framework, we turn to Wyatt’s specific
arguments raised on appeal.
1. Wyatt argues that the trial court erred in applying the McDonnell Douglas
burden-shifting framework because he presented direct evidence of retaliation.
According to Wyatt, direct evidence of retaliation exists when there is evidence
showing, without reliance on inference, a causal connection between the employee’s
protected activity and the adverse employment action taken against the employee, and
he asserts that such evidence exists in this case. Specifically, Wyatt maintains that the
record shows that Safety Department management suspended him in February 2020
for engaging in statutorily protected activity under the GWA (namely, refusing to
respond to a stabbing at a rail station on February 23, 2020 because he believed that
doing so would violate safety policies) and then used that suspension as part of the
justification for his termination, such that there was a causal connection between his
protected activity and his termination. Wyatt argues that in light of this direct
evidence of retaliation, the McDonnell Douglas framework was inapplicable and the
trial court’s grant of summary judgment to MARTA was improper.
13 We agree with Wyatt that the McDonnell Douglas burden-shifting framework
does not apply when there is direct evidence of retaliation. See Bailey v. Stonecrest
Condo. Assn., 304 Ga. App. 484, 488 (1) (696 SE2d 462) (2010) (explaining that the
McDonnell Douglas framework only comes into play “[i]f no direct evidence of
discrimination is shown”); Brown v. Allied Printing Ink Co., 241 Ga. App. 310, 312
(2) (526 SE2d 626) (1999) (pointing out that the McDonnell Douglas framework
applies “in the absence of direct . . . evidence of intentional discrimination”). See also
Jefferson v. Sewon America, 891 F3d 911, 922 (III) (B) (2) (11th Cir. 2018) (noting
that “[w]hen a plaintiff proves a case of discrimination by direct evidence, application
of McDonnell Douglas is inappropriate,” and concluding that because the plaintiff
“presented direct evidence of discrimination, the district court erred when it evaluated
[the] evidence under the burden-shifting test for circumstantial evidence established
in McDonnell Douglas”) (citations, punctuation, and emphasis omitted).4 But we
disagree with Wyatt that the evidence of his February 2020 suspension and
subsequent termination amounted to direct evidence of retaliation.
4 In utilizing the McDonnell Douglas framework to address discrimination and retaliation cases, “we have previously relied on, and found persuasive, cases from the Eleventh Circuit.” Baptiste, 360 Ga. App. at 349.
14 In classifying evidence as direct or circumstantial for purposes of determining
the application of the McDonnell Douglas framework, we have explained that
[d]irect evidence is evidence that establishes the existence of [retaliatory] intent behind the [employment] decision without any inference or presumption. . . . Direct evidence is composed of only the most blatant remarks, whose intent could be nothing other than to [retaliate] on the basis of some impermissible factor. . . . Direct evidence, by definition, is evidence that does not require . . . an inferential leap between fact and conclusion[, and] evidence merely suggesting [retaliation] does not constitute direct evidence.
(Citations and punctuation omitted.) Bailey, 304 Ga. App. at 488-489 (1) (a). See
Jefferson, 891 F3d at 921-922 (III) (B) (2) (noting that “only the most blatant
remarks, whose intent could mean nothing other than to discriminate on the basis of
some impermissible factor constitute direct evidence of discrimination”) (citation and
punctuation omitted); Fernandez v. Trees, Inc., 961 F3d 1148, 1156 (III) (B) (11th
Cir. 2020) (“Direct evidence of discrimination is evidence that reflects a
discriminatory or retaliatory attitude correlating to the discrimination or retaliation
complained of by the employee and, if believed, proves the existence of a fact without
inference or presumption.”) (citation and punctuation omitted).
15 The evidence relating to Wyatt’s February 2020 suspension and his May 2020
termination falls short of the standard for direct evidence because it does not
establish, without inference or presumption, that MARTA retaliated against him for
his refusal to respond to the scene of the stabbing incident. MARTA’s “Corrective
Action Form” for Wyatt’s February 2020 suspension states that he was suspended
based on four incidents on four separate dates in February, only one of which related
to the February 23, 2020 stabbing incident, and that he “failed to contact upper
leadership on any [of the] incidents” and that “[a]ny more violations of this nature can
and will lead to termination.” In describing Wyatt’s infractions for the stabbing
incident, the form specifically refers to Wyatt’s “fail[ure] to notify upper leadership
about the incident” and his decision “to take instructions on whether to respond to
incidents or accidents from MPD [MARTA Police Department] dispatchers.”
Additionally, the recommendation for termination written by Manager Martin-Lee
and the notice of termination that she sent to Wyatt rely on his cumulative
disciplinary history from September 2019 to May 2020 to justify his termination for
unsatisfactory performance and do not refer specifically to the February 23, 2020
stabbing.
16 Taken together, this documentary evidence, construed in favor of Wyatt as the
non-moving party, shows that Wyatt’s February 2020 suspension was based in part
on the February 23, 2020 stabbing incident, but that Wyatt was written up for that
incident only for failing to communicate with management and for taking directions
from a MPD dispatcher. The documentary evidence further reflects that, at most, the
February 2020 suspension was part of the disciplinary history extending over the
course of several months that was recited as cumulatively forming the reason for
Wyatt’s termination. Given this record, for a jury to find a causal relationship
between Wyatt’s refusal to respond to the scene of the stabbing out of concern that
he would be violating safety policies and his subsequent termination would “require
. . . an inferential leap between fact and conclusion.” (Citation and punctuation
omitted.) Bailey, 304 Ga. App. at 489 (1) (a). Because this is not the type of blatant,
“smoking gun” evidence that amounts to direct evidence of retaliation, the trial court
committed no error in applying the McDonnell Douglas framework in this case. See
Brown, 241 Ga. App. at 312 (2) (pointing out that the McDonnell Douglas framework
applies unless there is “direct, ‘smoking gun’ evidence”).5
5 Wyatt argues that MARTA admitted in its brief in support of its motion for summary judgment that his February 2020 suspension was based in part on his failure to respond to the stabbing at the rail station. “It is well established that a party may
17 2. Wyatt contends that even if the McDonnell Douglas burden-shifting
framework applies in this case, the trial court – after determining that Wyatt had made
out a prima facie case of retaliation and that MARTA had proffered legitimate, non-
retaliatory reasons for his termination – erred in concluding that he failed to show that
MARTA’s proffered reasons were pretextual. In addressing the pretext component
of the McDonnell Douglas framework, the trial court recited that to survive summary
judgment, Wyatt was required to come forward with evidence showing that each
legitimate, non-retaliatory reason proffered by MARTA for his termination was
pretextual. The trial court then determined that the uncontroverted evidence showed
that Wyatt had violated MARTA’s policies and procedures “when he worked without
make admissions in judicio in their pleadings, motions and briefs,” and such admissions are treated as “conclusive of the facts [admitted] therein.” (Citations and punctuation omitted.) Leary v. Perdue Farms, 359 Ga. App. 123, 125 (1) (856 SE2d 772) (2021). See Mansell 400 Assocs. v. Entex Information Svcs., 239 Ga. App. 477, 482 (519 SE2d 46) (1999) (on motion for reconsideration) (“Solemn admissions in judicio as made in the pleadings are conclusive against the party making them, unless formally withdrawn from the pleadings[.]”) (citation and punctuation omitted). However, we do not construe MARTA’s brief as an admission that Wyatt was suspended for refusing to respond to the stabbing incident. While MARTA recites in its brief that Wyatt failed to report to management and violated an agency rule by not responding to the stabbing incident, MARTA in the same paragraph describes the basis for his suspension as the “cumulation of several instances where [Wyatt] failed to properly communicate up his chain of chain despite being instructed specifically to do so.” Where a party’s statement is at best ambiguous, it does not constitute a binding admission. See Mansell 400 Assocs., 239 Ga. App. at 482.
18 his badge and tailgated to gain access to secured areas”6 upon returning back to work
in March 2020 after his first suspension, and when he failed to timely turn in a report
that was due by April 26, 2020. The trial court then went on to conclude that Wyatt
had failed to show that his termination for those specific infractions was pretextual
and thus could not succeed on his GWA claim.
(a) Wyatt first argues that the trial court erred in its analysis because there was
no evidence produced by MARTA that his tailgating in March 2020 and his failing
to timely submit the report in April 2020 were among the infractions that factored
into his termination for unsatisfactory performance. See Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 254-255 (II) & n. 9 (101 SCt 1089, 67 LE2d 207)
(1981) (explaining that after the plaintiff makes out a prima facie case of
discrimination, “[t]he burden . . . shifts to the defendant[ ] . . . to rebut the
presumption of discrimination by producing evidence that the plaintiff was
[terminated] . . . for a legitimate, nondiscriminatory reason”; that “the defendant must
clearly set forth, through the introduction of admissible evidence, the reasons for the
6 “Tailgating” refers to the circumstance where a MARTA employee gains entry through a secure access door without using his own identification badge by following closely another employee who has just scanned his badge.
19 plaintiff’s [termination]”; and that “[a]n articulation not admitted into evidence will
not suffice”). We disagree.
The record reflects that in her email to Director James recommending that
Wyatt be terminated, Manager Martin-Lee recited as part of Wyatt’s disciplinary
history that he had been suspended a second time in March 2020 “for failing to
properly report back to work.” Wyatt’s notice of termination for “unsatisfactory
performance” also referenced his second suspension “for failing to properly return to
work.” As to what constituted “properly” returning to work, Director James testified
in his deposition that to work at MARTA, an employee must have his badge and
equipment, but that Wyatt had failed to retrieve his badge after his first suspension
and instead had tailgated to gain entry when he returned to work in violation of
MARTA policy and procedure. Hence, MARTA produced some evidence that
Wyatt’s tailgating when he returned to work in March 2020 was one of the infractions
that factored into his termination for unsatisfactory performance.
MARTA also produced evidence that Wyatt’s failure to turn in a final report
by its April 2020 deadline was one of the infractions that factored into his
termination, as that infraction was listed in Manager Martin-Lee’s email
recommending that Wyatt be fired. And although that infraction was not also listed
20 in Wyatt’s notice of termination, that did not preclude MARTA from relying on the
infraction under the McDonnell Douglas burden-shifting framework. See Harris v.
City of Atlanta, 345 Ga. App. 375, 379 (2) (b) (813 SE2d 420) (2018) (indicating that
employer’s “overall justification” for terminating employee as supported by the
evidence should be considered under the McDonnell Douglas framework, even if the
employee was not provided the same reason for his termination at the time he was
fired).
Accordingly, there was evidence that Wyatt’s tailgating in March 2020 and his
failure to timely submit a final report in April 2020 factored into his termination for
unsatisfactory performance. It follows that the trial court did not err in taking into
account those infractions in applying the McDonnell Douglas framework.
(b) Wyatt next contends that even if the trial court was authorized to take into
account his disciplinary infractions for tailgating in March 2020 and for failing to
timely submit a final report in April 2020, the court erred by treating those infractions
as separate, standalone non-retaliatory reasons for his termination, and then finding
that he could not succeed on his GWA claim because he failed to show pretext as to
those two reasons. Wyatt asserts that MARTA’s proffered legitimate, non-retaliatory
reason for his termination was unsatisfactory performance based on the cumulative
21 effect of his disciplinary history. And because his alleged disciplinary infractions
were viewed in their totality by MARTA in determining that his performance was
unsatisfactory, Wyatt argues that he should not have been required to separately rebut
each and every alleged disciplinary infraction to survive summary judgment. We
agree.
Once the defendant employer meets its burden to proffer a legitimate, non-
retaliatory reason for the termination, the burden shifts to the plaintiff employee to
show “that each proffered reason was pretextual.” Thompson v. DeKalb County, 363
Ga. App. 61, 67 (1) (c) (870 SE2d 558) (2022). See Combs v. Plantation Patterns,
106 F3d 1519, 1543 (V) (11th Cir. 1997) (noting that the plaintiff must “produc[e]
evidence sufficient to discredit in the mind of a reasonable juror all of the defendant’s
proffered nondiscriminatory reasons for its actions”).
A plaintiff asserting a claim under the [GWA] establishes pretext by a direct showing that a discriminatory reason more likely motivated the defendant or by an indirect showing that the defendant’s explanation is not credible. To avoid summary judgment, a plaintiff must present significantly probative evidence on the issue of pretext because the plaintiff has the burden of establishing pretext. A defendant’s given reason is not pretextual unless it is shown both that the reason was false, and that discrimination or retaliation was the real reason. If the proffered reason is one that might motivate a reasonable employer, an employee
22 must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason, or showing that the decision was based on erroneous facts.
(Citation, punctuation, and emphasis omitted.) Franklin, 349 Ga. App. at 557 (2).
In addressing pretext in the present case, the trial court granted summary
judgment to MARTA on the basis that Wyatt could not prove that his disciplinary
infractions for tailgating in March 2020 and for failing to timely submit a final report
in April 2020 were pretextual, such that he “[had] not rebutted each proffered reason”
asserted by MARTA for his termination. The trial court focused solely on those
alleged infractions, treating each of them as a proffered legitimate, non-retaliatory
reason for Wyatt’s termination that he had to independently rebut, and the court did
not consider whether Wyatt had presented any other evidence of pretext. The trial
court also emphasized that Wyatt asserted in his brief opposing summary judgment
that Safety Department management lacked a good faith belief that “many (if not all)”
of his alleged disciplinary infractions occurred, thereby implying by his assertion that
he may have committed at least some of the infractions.
The trial court erred in its analysis because the record reflects that MARTA
proffered that it terminated Wyatt not for a single, standalone disciplinary infraction,
23 but rather for unsatisfactory performance predicated on a pattern of infractions. In this
regard, MARTA proffered in its statement of undisputed facts that “Wyatt was
terminated for unsatisfactory performance” and that his
termination was based on series of repeated missteps over a period of time; including failures to follow directives; showing no sense of urgency in submitting time-sensitive reports; communication lapses; insubordination; substituting his own judgment for that of management’s; repeatedly challenging direction or instruction; and routinely disregarding management directives.
And its brief in support of its motion for summary judgment, MARTA asserted:
The undisputed evidence establishes that Wyatt had a pattern of bad behavior culminating in . . . back-to-back suspensions and a PIP. Management’s hope was that these corrective actions would get Wyatt’s attention and motivate him to change. Ultimately, however, given the methodical manner in which Wyatt disregarded directions and put public safety at risk, he left MARTA little choice but to terminate his employment for unsatisfactory performance. On the heels of a series of Wyatt’s misdeeds in proximity that included failing to follow directives, untimeliness of submitting reports, poor communication, and insubordinate behavior, he was terminated.
24 In support of its proffered reason for terminating Wyatt, MARTA relied on the
deposition testimony of its designated agency representative,7 who testified in her
Rule 30 (b) (6) deposition that Wyatt was terminated for “unsatisfactory
performance” based on “a series of events that occurred over a period of time,” and
on the deposition testimony of Safety Department management personnel that Wyatt
was terminated for unsatisfactory performance for routinely not following directives
and continuing to substitute his own judgment for that of management. Additionally,
in her email recommending Wyatt’s termination, Manager Martin-Lee relied on his
disciplinary history over several months to justify her conclusion that Wyatt had
“willful[ly] fail[ed] to perform the requirements of his job in a satisfactory manner,”
and Wyatt’s notice of termination likewise recited a list of infractions as forming the
basis for his termination for “unsatisfactory performance.”
As shown by this record, MARTA’s proffered reason for Wyatt’s termination
was unsatisfactory performance based on the totality of his disciplinary infractions
rather than on each infraction viewed independently. Because MARTA proffered that
Wyatt was terminated for unsatisfactory performance as a result of the cumulative
effect of his infractions, the trial court should have treated MARTA’s explanation for
7 See OCGA § 9-11-30 (b) (6) (“Rule 30 (b) (6)”).
25 his termination as a single justification that Wyatt had to show was pretextual. See
Wallace v. Seton Family of Hosps., 777 Fed. Appx. 83, 89 (II) (A) (c) (5th Cir. 2019)
(per curiam) (“[The defendant employer] asserts that [the plaintiff employee] was
fired for the cumulative effect of her attendance issues and her conflicts with her
co-workers which occurred during her introductory period. [The defendant] does not
assert that each reason was an independent reason for terminating [the plaintiff];
therefore, we must treat [the defendant’s] reasons for terminating [the plaintiff] as a
single justification.”); DeJesus v. WP Co. LLC, 841 F3d 527, 533 (III) (D. C. Cir.
2016) (concluding that the two asserted grounds for termination “should be
considered as one,” where the plaintiff’s “unauthorized RAM study request and . . .
failure to properly deliver the unauthorized study” were treated by the employer “as
the same sin” of “willful neglect of duty and insubordination” and the employer
explained that it was “the two things together” that led to the plaintiff’s termination)
(citation omitted); Laxton v. Gap, Inc., 333 F3d 572, 580 (IV) (B) (5th Cir. 2003)
(treating the employer’s grounds for discharging employee as one justification where
employer proffered that it was the “cumulative effect” of many infractions that led to
the employee’s discharge); Strickland v. Prime Care of Dothan, 108 FSupp2d 1329,
1334-1335 (IV) (2) (M.D. Ala. 2000) (concluding that the defendant employer’s
26 asserted grounds for termination of the plaintiff employee would be analyzed
together, where the defendant “argues that [the plaintiff] was terminated for the
totality of her conduct and not any one of the individual reasons (tardiness, rudeness,
or failing to return from the doctor) considered separately”).8 Accordingly, the trial
court erred in treating each alleged disciplinary infraction as a separate proffered
reason that Wyatt had to rebut to survive summary judgment and in not considering
Wyatt’s evidence of pretext as a whole; instead, the court should have asked whether
Wyatt came forward with evidence that in its totality “would present a basis for the
disbelief of [MARTA’s] overall justification.” (Citation, punctuation, and emphasis
omitted.) Blockum v. Fieldale Farms Corp., 275 Ga. 798, 802 (4) (573 SE2d 36)
(2002). See Baptiste v. Mann, 360 Ga. App. 345, 356 (3) (861 SE2d 212) (2021)
8 See generally Russell v. Acme-Evans Co., 51 F3d 64, 70 (7th Cir. 1995) (“There may be cases in which the multiple grounds offered by the defendant for the adverse action of which the plaintiff complains are so intertwined[ ] . . . that the plaintiff could withstand summary judgment.”). Accord Holland v. Gee, 677 F3d 1047, 1060 (III) (A) (3) (a) (11th Cir. 2012) (concluding that because the jury could have found that the employer’s first asserted reason for terminating the employee was pretextual, the jury could have found that employer’s second asserted reason was “fishy and suspicious as well” because the two reasons were “closely related”) (citations and punctuation omitted); Woodard v. Fanboy, LLC, 298 F3d 1261, 1267 & n. 10 (11th Cir. 2002) (concluding that evidence that one of the defendants’ proffered non-discriminatory grounds was pretextual tainted the second proffered ground as well, where the two grounds were “closely intertwined” and the defendants “often bundled the two reasons together”) (citation and punctuation omitted).
27 (“[T]o determine whether a reasonable jury could find that the employer’s stated
explanation for the plaintiff’s termination was a pretext for retaliation, the court must
consider all the circumstances together[.]”) (citation and punctuation omitted). See
generally Canady v. Cumberland Harbour Prop. Owners Assn., 340 Ga. App. 439,
442 (1) (797 SE2d 674) (2017) (“[I]n considering the grant of summary judgment, .
. . the trial court must look at the entire record[.]”) (citation and punctuation omitted).
In other words, the fact that Wyatt could not prove the falsity of each and every
alleged disciplinary infraction was not fatal to his GWA claim, if Wyatt otherwise
could point to evidence that, when viewed in its totality and in the light most
favorable to him, would support a finding by a reasonable jury that MARTA’s overall
justification for his termination – unsatisfactory performance – was false and
pretextual. See id. See also Busby v. City of Orlando, 931 F2d 764, 781 (I) (C) (11th
Cir. 1991) (concluding that if the plaintiff came forward with evidence that “any part
of the disciplinary process was . . . motivated” by discrimination, she could establish
pretext, given that the plaintiff allegedly was terminated by the defendant after a
series of interrelated investigations “because her actions were part of a ‘cumulative
record’ of violations which [were] described as ‘intolerable’”); Laxton, 333 F3d at
580 (IV) (B) (concluding that a reasonable jury could find that the defendant’s
28 justification for the plaintiff’s discharge was pretextual, even though the plaintiff
“concede[d] that certain violations of store policy took place,” where the defendant
did not discharge her solely for those violations, but rather for the “cumulative effect
of many violations”) (punctuation omitted); Strickland, 108 FSupp2d at 1334-1335
(IV) (1, 2) (finding a genuine issue of material fact on the question of pretext where
the plaintiff was terminated “for the totality of her conduct and not any single type of
conduct considered separately,” even though the evidence showed that she committed
one of the alleged workplace infractions).
On appeal, Wyatt argues that he established a genuine issue of material fact
that MARTA’s overall justification for his termination was false and pretextual
because he presented evidence that Safety Department management knew that many
of the infractions of which he was accused were false, and because he presented “an
array of other evidence of pretext,” including, he maintains, evidence that MARTA
gave inconsistent explanations for his discipline and termination, increased the
intensity of his supervision after he raised safety concerns, departed from its normal
rules and procedures in how it handled his workplace complaints and his termination,
and fired other SOOs who raised similar safety concerns. However, because the trial
court erroneously treated Wyatt’s alleged infractions as separate proffered reasons for
29 his termination that each had to be rebutted, the court did not consider the
aforementioned arguments raised by Wyatt and did not address whether the totality
of the evidence would support a finding of pretext. Consequently, given that the trial
court did not apply the correct legal analysis and the record in this case is
voluminous, we vacate the trial court’s final order granting summary judgment to
MARTA and remand for further action consistent with this opinion. See City of
Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002) (noting that in
cases where the trial court relies on an erroneous legal theory in its summary
judgment ruling, appellate courts have the discretion to vacate the trial court’s order
and remand for application of the proper legal analysis).
Judgment vacated and case remanded with direction. Mercier, and Land, JJ.,
concur.