Thomas v. HL-A Co.

720 S.E.2d 648, 313 Ga. App. 94, 2011 Fulton County D. Rep. 3898, 2011 Ga. App. LEXIS 1077
CourtCourt of Appeals of Georgia
DecidedNovember 30, 2011
DocketA11A1422
StatusPublished

This text of 720 S.E.2d 648 (Thomas v. HL-A Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. HL-A Co., 720 S.E.2d 648, 313 Ga. App. 94, 2011 Fulton County D. Rep. 3898, 2011 Ga. App. LEXIS 1077 (Ga. Ct. App. 2011).

Opinions

BARNES, Presiding Judge.

Sonja Thomas appeals the grant of summary judgment to her former employer, HL-A Co., Inc., on her claim that HL-A improperly terminated her employment in violation of OCGA § 34-1-3 (a)1 for attending a juvenile court proceeding. HL-A contends, however, that Thomas was not terminated in violation of OCGA § 34-1-3 (a) but because the company believed that Thomas had falsified her employment application. Because Thomas submitted sufficient evidence to show a prima facie case of retaliation, and HL-A failed to come forward with competent evidence showing a proper reason for the termination, we must reverse the trial court.

Thomas argues on appeal that the trial court erred by placing the burden of proof upon her to prove she was penalized because of her absence, and that the court erred by finding she failed to carry that burden. Thomas also contends that the trial court erred by finding that she failed to present sufficient evidence to raise a jury question as to whether HL-A violated OCGA § 34-1-3, any other law, or any public policy by terminating her employment.

1. In Georgia,

[t]he standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When a trial court rules on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. On appeal of the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

(Citation and punctuation omitted.) Overton Apparel v. Russell Corp., 264 Ga. App. 306, 307 (1) (590 SE2d 260) (2003). Further, summary judgments enjoy no presumption of correctness on appeal, [95]*95and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. See Chester v. Smith, 285 Ga. 401, 401 (677 SE2d 128) (2009); Merlino v. City of Atlanta, 283 Ga. 186, 186 (657 SE2d 859) (2008).

Viewed in the light most favorable to Thomas as the nonmoving party, the record shows that Thomas initially worked for a temporary employment agency which placed her with HL-A in March 2007, then became an HL-A employee in July 2007. During the hiring process, Thomas completed an application affirming she had no relatives employed at HL-A. HL-A had an anti-nepotism policy which would have prevented her employment if she were married at that time to another HL-A employee. Thomas was living with another HL-A employee, Joshua Smith, when she was hired.

Thomas took unpaid personal days to attend juvenile court hearings involving Smith’s daughter in Tennessee in February and June 2009, pursuant to witness subpoenas. A week after informing her supervisor that the Tennessee case had not been resolved, HL-A determined that Thomas’s latest absence was not excused and planned to count the absence as unexcused. Under HL-A policy, an employee with a certain number of unexcused absences was subject to termination. Thomas protested that her absence should be excused because she was attending a court hearing pursuant to a witness subpoena. The next day, HL-A fired Thomas, who sued for damages arising from a violation of OCGA § 34-1-3 (a).

HL-A responded that Thomas was fired for providing false information on her job application by not disclosing that she was married to Smith. HL-A contends that it reasonably believed Thomas was married to Smith because Smith had completed several work-related forms when hired in 2003 listing Thomas as his spouse and subsequently obtained medical insurance for her as his spouse. Thomas contends, however, that she did not marry Smith until October 14, 2009, four months after she was fired, and submitted a copy of her marriage certificate as proof. Thomas argues that she was fired because she protested being penalized for her absence while attending a judicial proceeding pursuant to a subpoena.

The essential rules for motions for summary judgment are codified at subsections (a) through (c) of OCGA § 9-11-56. Parties prosecuting or defending claims may move for summary judgment, with or without supporting affidavits. Then, summary

judgment sought shall be rendered forthwith 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.

[96]*96OCGA § 9-11-56 (c).

2. Our legislature created a limited number of “ ‘public policy’ exceptions to the proposition that the employment of an at-will employee can be terminated for any reasons whatsoever or for no reason at all.” Borden v. Johnson, 196 Ga. App. 288, 289 (1) (395 SE2d 628) (1990) (no exception for employee fired due to pregnancy). Those legislative exceptions include OCGA § 34-1-3, which authorizes an employee to recover damages if discharged for attending a judicial proceeding in response to a court order. Id. at 290 (1). See also Reilly v. Alcan Aluminum Corp., 272 Ga. 279, 280 (1), n. 7 (528 SE2d 238) (2000) (OCGA § 34-1-2 prohibits firing someone due to age, though it allows only criminal sanctions, not a civil cause of action).

HL-A argues that the subpoena was not personally served on Thomas as required by Tennessee law, and therefore, because Thomas’s attendance at court was not “required,” the statute did not protect her for her absence from work. The dissent agrees with that proposition, which would require a person receiving a subpoena to engage legal counsel to research its validity before she could rely on the protections of OCGA § 34-1-3 and attend court. An equally unpalatable consequence for a person served with an apparently valid subpoena would be to ignore the subpoena’s command to appear and incur the possibility of a contempt citation or even an arrest. We disagree that the plain language of the statute requires an employee to conduct such an inquiry.

In 1995, the Attorney General of the State of Georgia issued an opinion advising that OCGA § 34-1-3 applies to Georgia employees who are “involved in judicial proceedings” in states other than Georgia. 1995 Op. Atty. Gen. 95-13, 1995 Ga.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jones v. Board of Regents of the University System
585 S.E.2d 138 (Court of Appeals of Georgia, 2003)
Borden v. Johnson
395 S.E.2d 628 (Court of Appeals of Georgia, 1990)
Brookfield Country Club, Inc. v. St. James-Brookfield, LLC
696 S.E.2d 663 (Supreme Court of Georgia, 2010)
Commonwealth Investment Co. v. Frye
134 S.E.2d 39 (Supreme Court of Georgia, 1963)
Lau's Corp., Inc. v. Haskins
405 S.E.2d 474 (Supreme Court of Georgia, 1991)
Reilly v. Alcan Aluminum Corp.
528 S.E.2d 238 (Supreme Court of Georgia, 2000)
Carr v. Farmer
445 S.E.2d 350 (Court of Appeals of Georgia, 1994)
Chester v. Smith
677 S.E.2d 128 (Supreme Court of Georgia, 2009)
Anthony v. American General Financial Services, Inc.
697 S.E.2d 166 (Supreme Court of Georgia, 2010)
Harvey v. Kidney Center of Central Georgia, Inc.
444 S.E.2d 590 (Court of Appeals of Georgia, 1994)
Merlino v. City of Atlanta
657 S.E.2d 859 (Supreme Court of Georgia, 2008)
Northeast Atlanta Bonding Co. v. State
707 S.E.2d 921 (Court of Appeals of Georgia, 2011)
Robinson v. Boyd
701 S.E.2d 165 (Supreme Court of Georgia, 2010)
Strength v. Lovett
714 S.E.2d 723 (Court of Appeals of Georgia, 2011)
Glover v. Scott
435 S.E.2d 250 (Court of Appeals of Georgia, 1993)
B & D Fabricators v. D. H. Blair Investment Banking Corp.
469 S.E.2d 683 (Court of Appeals of Georgia, 1996)
Overton Apparel, Inc. v. Russell Corp.
590 S.E.2d 260 (Court of Appeals of Georgia, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
720 S.E.2d 648, 313 Ga. App. 94, 2011 Fulton County D. Rep. 3898, 2011 Ga. App. LEXIS 1077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-hl-a-co-gactapp-2011.