May 17, 2004.
Dubberly, Dubberly & McGovern, Glennville, for
Thurbert Baker, Atlanta, Ralph Ellis, Assistant Attorney General, Bryan Webb, Senior Assistant Attorney General, Dennis Dunn, Deputy Attorney General, for Appellee.
This case presents two issues of first impression under OCGA
§ 45-1- 4,
the Georgia Whistle Blower Statute (the "Act"): (i) whether the Act
may require a public employer to pay monetary damages, and (ii) under what
circumstances the Act requires a public employer to rehire an employee.
M. Hughes sued the Georgia Department of Corrections seeking relief under the
Act. Hughes was formerly employed by the Department as the pharmacy director for
the Autry State Prison. According to the complaint, Hughes disclosed information
to the Department and the Georgia Board of Pharmacy concerning waste and abuse
in the practice and provision of pharmacy services at the prison. Hughes claimed
that the Department suspended and then terminated his employment in reprisal for
making the disclosures.
response to the Department's initial motion to dismiss and motion for summary
judgment, the trial court ruled that the exclusive remedy available to Hughes
under the Act was to have the reprisals "set aside," but that material
issues of fact remained for a jury. In a subsequent order, the trial court
clarified that no monetary damages were available to Hughes under the Act. The
Department again moved to dismiss, and the trial court granted the motion
because the position previously held by Hughes no longer existed; no effective
relief was available to Hughes under the Act; and the case was therefore moot.
Hughes appeals the trial court's orders finding that no monetary relief was
available to him under the Act and dismissing his case. We affirm in part and
reverse in part.
Hughes challenges the trial court's finding that no monetary damages are
available to him under the Act. We agree with the trial court.
pertinent part, the Act provides: ....
(d) No action against any public employee shall be taken or
threatened by any public employer who has authority to take, direct others to
take, recommend, or approve any personnel action as a reprisal for making a
complaint or disclosing information to the public employer unless the complaint
was made or the information was disclosed with the knowledge that it was false
or with willful disregard for its truth or falsity.
(e) Any action taken in violation of subsection (d) of this
Code section shall give the public employee a right to have such action set
aside in a proceeding instituted in the superior court.
(Emphasis supplied.) OCGA §
We have not
previously addressed whether monetary relief is available under the Act. As a
general rule, we apply the "plain meaning" rule of statutory
v. State, 133 Ga.App. 902, 905(1), 212 S.E.2d 505 (1975).
However, the employee's "right to have such action set aside" is
arguably ambiguous. OCGA
Hughes contends that back pay is a necessary element of having his termination
set aside. The Department contends that a retaliatory action could be set aside
without a monetary payment.
Hughes and the Department both refer us to the definition of "set
aside" in Black's Law Dictionary, p. 1230, (5th Ed.1979): "[t]o
reverse, vacate, cancel, annul or revoke a judgment, order, etc."
Consistent with that definition, our research indicates that the term "set
aside" is generally applied to the
cancellation of an act, such as a judicial order or wrongful foreclosure, and,
in such a context, is not a monetary remedy. See, e. g., Calhoun
First Nat. Bank v. Dickens, 264 Ga. 285, 285-286(1), 443 S.E.2d 837 (1994)
(debtor could sue to set aside foreclosure or sue for damages for wrongful
foreclosure, but not both); Smith
v. State, 257 Ga.App. 468, 469, 571 S.E.2d 446 (2002)
(appeal from dismissal of motion to set aside order). This weighs against
concluding that OCGA
includes back pay as a remedy.
of statutory construction also suggest that the legislature did not intend OCGA
to include monetary damages. First, payment of damages by a state agency
implicates sovereign immunity. See Dept.
of Veteran Svcs. v. Robinson, 244 Ga.App. 878, 879, 536 S.E.2d 617 (2000).
does not expressly provide for monetary damages, such damages are at best
implied. While the state may consent to be sued "this consent can not be
enlarged by implication." Eiebel
v. Forrester, 194 Ga. 439, 442, 22 S.E.2d 96 (1942).
See also Dept.
of Human Resources v. Hutchinson, 217 Ga.App. 70, 71, 456 S.E.2d 642 (1995)
(conditions and limitations of statute that waives sovereign immunity must be
"[i]t is presumed that the legislature knows and enacts statutes with
reference to the existing law...." (Citations and punctuation omitted.)
v. Cleveland Electric Co., 142 Ga.App. 751, 753(1), 236 S.E.2d 872 (1977).
When the legislature enacted the Act, it had previously enacted the Fair
Employment Practices Act ("FEPA"). OCGA
et seq. The purpose of the FEPA includes "the elimination of discrimination
against all individuals in public employment because of such individuals' race,
color, religion, national origin, sex, disability, or age." OCGA
Conceptually, the Act and the FEPA are similar in that they are designed to
protect individuals in public employment, but by enacting the FEPA the
legislature specifically provided a range of remedial actions, including
monetary damages such as back pay, with certain limitations.FN1
We doubt the legislature used different language for resolving claims by
employees under the Act and under the FEPA without intending a real distinction
between the remedies. Because (1) the legislature chose not to expressly allow
for the recovery of monetary damages from public employers in the Act, as it
chose to do in FEPA, (2) we must strictly follow the limitations of statutes
waving sovereign immunity, and (3) to "set aside" an action has been
recognized as a remedy apart from monetary damages, we conclude that the
legislature did not intend for an employee's right to "set aside" a
retaliatory action under the Act to include a claim for monetary damages.
Accordingly, we affirm the trial court's ruling that monetary damages were not
available to Hughes.
trial court held that setting aside the Department's alleged retaliatory conduct
required reinstating Hughes to the pharmacist position he held before his
termination. The trial court further determined that it could not grant
effective relief to Hughes because his former position no longer existed and he
had retired from the Department. Accordingly, the court dismissed the case as
moot. Hughes challenges that decision.
with the trial court's finding that setting aside an improper termination
requires reinstatement of employment. We also agree with the trial court that if
no remedy is available to Hughes under the Act, his case is moot. "An issue
is moot when a determination is sought on a matter which, when rendered, cannot
have any practical effect on the existing controversy." Schoen
v. Cherokee County, 242 Ga.App. 501, 503(2), 530 S.E.2d 226 (2000).
We disagree, however, that the Department has shown that no remedy is available
to Hughes under the facts of this case.
first consider the standard of appellate review of the trial court's order. The
trial court treated the Department's motion to dismiss as a matter in abatement.
v. Porter, 189 Ga.App. 778, 377 S.E.2d 540 (1989);
§ 9-11-12(b). As the motion was based on facts outside the record, the trial court
was authorized to hear the matter on affidavits as authorized by OCGA
Under these circumstances, we review a trial court's findings of disputed fact
under the any evidence rule. See Huddle
v. Paragon Foods, 263 Ga.App. 382, 383, 587 S.E.2d 845 (2003);
v. General Motors Corp., 172 Ga.App. 287, 289, 322 S.E.2d 900 (1984).
But where, as here, there is no dispute as to the trial court's findings of fact
and the issue presented is one of law, "the issue for review [is] whether
the trial court made a plain legal error." Glover
v. Ware, 236 Ga.App. 40, 45(3), 510 S.E.2d 895 (1999).
evidence available to the trial court consisted of the affidavit of Department
administrator Michael Spradlin, a copy of the Department's Standard Operating
Procedure governing the provision of pharmacy services, and the affidavit of
Sharon Robertson, a pharmacist at Autry State Prison. According to Spradlin, in
about 1980, the Department contracted with a private medical service provider
for healthcare services, including staffing for pharmaceutical services. The
process of "privatizing" was not immediate, and the Department filled
vacated state positions with employees of the private contractor "through a
process of attrition ." As of the date of the affidavit, the Department
employed four "grandfathered" pharmacists who had been hired before
the privatization program began. The other pharmacists who worked at Department
institutions were employees of the Medical College of Georgia, the Department's
contract provider. Spradlin averred that as the Department "had not
completely privatized its healthcare provider positions at the time it hired Mr.
Hughes, Mr. Hughes was a [Department] employee throughout his tenure with [the Department]."
After Hughes left his pharmacist position at Autry State Prison, his position
was converted into a contract position. In 1999, the Department reorganized its
pharmacy program so that designated regional pharmacies served geographical
areas. The pharmacy at Autry State Prison is now considered a regional pharmacy
serving Autry State Prison and other Department facilities in the southwest
Georgia region. Two pharmacists are currently employed at Autry State Prison,
both of whom are employees of the Department's private service provider.
Department claims it cannot reinstate Hughes because his old job no longer
exists. The Department cites cases decided under federal law in which the court
determined that reinstatement of a terminated employee was not feasible. See
v. Delchamps, Inc., 897 F.2d 815, 822 (5th Cir.1990)
(reinstatement not appropriate because of antagonism between the parties). Our
own research indicates that when considering reinstatement under a §
1983 action, "a court must consider, in the exercise of its
discretion, whether reinstatement is appropriate in light of all the surrounding
v. Relin, 851 F.Supp. 87, 92 (W.D.N.Y.1994).
But these federal law cases were decided in the context of a range of available
remedies to make the injured employee whole, including monetary consideration in
lieu of reinstatement. See Barbano
v. Madison County, 922 F.2d 139, 146 (2nd Cir.1987)
(district courts should fashion remedies ensuring that victims of discrimination
are made whole). Our research into Georgia law has similarly failed to identify
persuasive authority. The Georgia courts have previously considered the remedy
of reinstating wrongfully discharged employees, but in contexts that are not
helpful to this decision. See, e. g., Foster
v. Vickery, 202 Ga. 55, 42 S.E.2d 117 (1947)
(reviewing decision of civil service board); Dixon
v. MARTA, 242 Ga.App. 262, 529 S.E.2d 398 (2000)
(reviewing collective bargaining agreement). We must rely on the language of the
Act to determine its meaning.
Act allows an employee who has been subject to an improper personnel action to
have that action "set aside," which, consistent with the accepted
definition of "set aside," requires the action to be vacated,
cancelled, and annulled. If the improper personnel action is termination, then
the employee has the right to undo the improper termination. Thus, the employee
should be re-employed unless the public employer can show that the employee
would have been otherwise terminated for a legitimate reason. In other words, if
but for the improper termination the employee would have remained employed, then
the employee's right to set aside an improper termination requires that the
employee be rehired. Applying that standard to the facts of this case, we see
that Spradlin's affidavit shows that the Department still uses pharmacists in
its operations. The Department employs "grandfathered" pharmacists,
and Hughes was such a grandfathered
pharmacist while employed by the Department. We see no reason, but for the
alleged retaliatory action, that Hughes would not remain employed as a
pharmacist with the Department. Based on the facts available to the trial court,
we hold that, should a jury conclude that the Department violated the Act, the
Department must set aside Hughes' termination, and reinstate Hughes to a
pharmacy position consistent with its then current method of providing pharmacy
The trial court's alternate reason for finding Hughes' case to be moot was that
Hughes had retired from the Department. If Hughes does not want to return to
work or cannot return because he is past the applicable mandatory retirement
age, then we would agree that no remedy is available to him under the Act.
However, we cannot discern from the record that these conditions exist, only
that Hughes has stipulated he has "retired" from the Department.
Because Hughes has an available remedy under the Act his case is not moot, and
the trial court erred in dismissing it on that ground.
affirmed in part and reversed in part.
"No award of back pay shall be ordered pursuant to this article with
respect to any period more than two years prior to the date of the filing
with the administrator of the complaint with respect to which such award of back
pay is ordered. Interim earnings, unemployment benefits, workers' compensation
benefits, or amounts earnable with reasonable diligence by the person or persons
discriminated against shall operate to reduce the back pay otherwise