                              SECOND DIVISION
                                MILLER, P. J.,
                           DOYLE, P. J., and REESE, J.

                     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


                                                                    February 28, 2018




In the Court of Appeals of Georgia
 A17A1984. HARRIS v. CITY OF ATLANTA.                                          DO-075

      DOYLE, Presiding Judge.

      Christopher Harris, the former Watershed Manager for the City of Atlanta’s

Department of Watershed Management (“DWM”), sued the City, alleging that his

termination violated the Georgia Whistleblower Act1 (“GWA”). The trial court

granted summary judgment to the City, and Harris appeals. For the reasons that

follow, we affirm.

              Summary judgment is proper when there is no genuine issue of
      material fact and the movant is entitled to judgment as a matter of law.
      OCGA § 9-11-56 (c). 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. A de


      1
          OCGA § 45-1-4.
      novo standard of review applies to an appeal from a ruling on summary
      judgment, and we view the evidence, and all reasonable conclusions and
      inferences drawn from it, in the light most favorable to the nonmovant.2


      So viewed, the record shows that in late 2011, Harris was promoted by the

DWM to Watershed Manager, a position in the unclassified service of the City

government that included supervising more than 200 employees. At that time, the

DWM was experiencing problems with employees, including theft, productivity

issues, and failure to meet required repair service response times. As part of his job,

Harris was tasked with identifying and eliminating such problems and improving the

DWM’s overall performance.

      Harris discovered multiple instances of inventory theft and employees over-

reporting their work hours, sleeping on the job, using company equipment for

personal use, leaving the job during work hours, and engaging in personal activities

instead of working. Harris disciplined multiple employees and reported many of these

instances to the DWM Commissioner and the Department of Human Resources




      2
       (Citations and punctuation omitted.) Freeman v. Smith, 324 Ga. App. 426,
427 (750 SE2d 739) (2013).

                                          2
(“DHR”). He also implemented new management systems, including equipment and

materials tracking and electronic time reporting.

      Thereafter, in October 2012, the City placed Harris on administrative leave for

six days while an internal department and the police department investigated an

allegation by multiple employees that he accepted a bribe. The City and police

ultimately found no evidence to support the bribery allegation, and the City returned

Harris to work with full back pay.

      In December 2013, an employee submitted an email complaint to the City,

alleging that Harris threatened and intimidated employees, slapped an employee,

engaged in favoritism regarding hiring and job assignments, and retaliated against

subordinates. In early 2014, Harris changed the DWM work week from five to seven

days to decrease overtime abuse. On February 7, 2014, approximately 40 employees

protested Harris’s actions at City Hall, including his proposed schedule changes,

requesting that the City replace him.

      DHR began an investigation into the allegations against Harris, and on

February 21, 2014, more than 100 DWM employees met with the DHR commissioner

and other officials. At the meeting, 68 of Harris’s subordinates submitted a signed

petition seeking his removal. The City placed Harris on administrative leave the same

                                         3
day. Also on February 21, 2014, Harris wrote a letter to the City’s Chief Operating

Officer (“COO”) stating that DHR was failing to discipline employees for the fraud,

abuse, and theft that he had uncovered and reported, and seeking a neutral party

evaluation of the recent employee complaints.

         Over the next few weeks, DHR conducted an investigation into the complaints,

including interviewing and obtaining sworn signed statements from 65 DWM

employees. Some statements reported no inappropriate behavior by Harris, while

others included wide-ranging allegations against him, including theft, engaging in

favoritism with regard to job assignments, showing employees naked photos of a

woman Harris identified as a DWM employee, and the frequent use of inappropriate,

demeaning, and threatening language. DHR also interviewed Harris on two separate

occasions. Immediately before the initial interview, Harris was asked whether the

laptop computer he had with him belonged to the City or was his personal computer.

Harris twice responded that it was his personal computer, before ultimately admitting

that it belonged to the City. At the second interview, Harris submitted character

letters from multiple employees offering their support, and he submitted a notebook

with documents he believed supported his allegations of employee fraud, waste, and

theft.

                                           4
      At the conclusion of the investigation, DHR recommended terminating Harris.

In the spring of 2014, at Harris’s request, the City retained outside counsel to review

his allegations of theft and mismanagement within the DWM; outside counsel met

with him and his representative for several hours. In August 2014, the City’s COO

terminated Harris’s employment.

      Harris filed suit against the City, alleging that his termination violated the

GWA.3 The City moved for summary judgment, and the trial court granted the

motion, applying the analysis set forth in McDonnell Douglas Corp. v. Green.4 In the

order, the trial court concluded that Harris failed to establish a prima facie case of

retaliation under the GWA because he did not engage in protected activity and

because there was no evidence of causation. The court also concluded that Harris

failed to demonstrate that the City’s reasons for terminating him were pretextual. This

appeal followed.




      3
        Harris also alleged that the City violated his due process rights by failing to
provide him with a name-clearing hearing. The trial court granted summary judgment
to the City on this claim. Harris does not challenge that ruling on appeal, and we do
not address it.
      4
          411 U. S. 792, 802-803 (II) (93 SCt 1817, 36 LE2d 668) (1973).

                                          5
      The GWA prohibits public employers 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, unless the disclosure was

made with knowledge that the disclosure was false or with reckless disregard for its

truth or falsity.”5 “Retaliation” is defined as

      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.6


      We apply the McDonnell Douglas burden-shifting analysis to whistleblower

claims brought pursuant to the GWA.7

      Under the McDonnell Douglas 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, nondiscriminatory reason for the employment decision. If the


      5
          OCGA § 45-1-4 (d) (2).
      6
          OCGA § 45-1-4 (a) (5).
      7
        See Tuohy v. City of Atlanta, 331 Ga. App. 846, 848 (1) (771 SE2d 501)
(2015). “We find the Eleventh Circuit cases using the McDonnell Douglas framework
to analyze federal discrimination and retaliation cases persuasive.” Id. at 851, n.6.

                                            6
       employer successfully meets this burden of production, then the burden
       shifts back to the plaintiff to show that each proffered reason was
       pretext.8


       1. Prima facie case of retaliation. “Because we hold below that [Harris] has

failed to satisfy his burden of establishing that the proffered reason for his termination

was pretextual, we need not address whether he established a prima facie case of

retaliation.”9

       2. Burden-shifting analysis. “‘Assuming that [Harris] had established a prima

facie case, the burden of production shifts to the City to articulate some legitimate,

nondiscriminatory reason for the employment decision.’”10

       (a) The City’s burden of production to articulate legitimate, non-

discriminatory reasons for the termination. The City’s COO stated that he made the

decision to terminate Harris based upon DHR’s findings that employees reported that

Harris was threatening and abusive to subordinates, Harris showed nude photographs



       8
       (Punctuation omitted.) Id. at 849 (1), quoting Adams v. City of Montgomery,
569 Fed. Appx. 769, 772 (11th Cir. 2014) (unpublished opinion in Case No. 13-
15066).
       9
           Tuohy, 331 Ga. App. at 850 (2).
       10
            Id. at 850 (3), citing Adams, 569 Fed. Appx. at 772.

                                             7
of an employee to other employees, and Harris was untruthful with DHR during the

investigation.

      “The employer need not persuade the court that its proffered reasons are

legitimate, as its burden is merely one of production, not proof. This intermediate

burden is exceedingly light.”11 Here, statements and affidavits in the record support

DHR’s findings, and the reasons cited by the COO constitute “legitimate,

nondiscriminatory reason[s] for [Harris’s] termination.”12

      (b) Harris’s burden to show pretext. Because the City met its burden to proffer

a nondiscriminatory reason for the termination, the burden shifts to Harris to

demonstrate that each proffered reason was pretextual.13

               [P]retext is established 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




      11
          (Emphasis omitted.) Tuohy, 331 Ga. App. at 851 (3) (a), quoting
Burgos-Stefanelli v. United States Dept. of Homeland Security, 410 Fed. Appx. 243,
247 (III) (11th Cir. 2011) (unpublished opinion in Case No. 10-12756).
      12
           Tuohy, 331 Ga. App. at 851 (3) (a).
      13
           See id. at 851 (3) (b); Adams, 569 Fed. Appx. at 772.

                                            8
      the issue of pretext because the plaintiff has the burden of establishing
      pretext.14


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
      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.15


      Here, Harris argues that his termination was pretextual because the City failed

to specify the employee complaints and his untruthful statements about the City’s

computer as the reasons for his termination at the time he was fired, instead telling

him that his “services were no longer needed.” But this does not “present a basis for




      14
        (Punctuation omitted.) Tuohy, 331 Ga. App. at 851 (3) (b), quoting Bailey v.
Stonecrest Condo. Assn., 304 Ga. App. 484, 491 (1) (b) (696 SE2d 462) (2010).
      15
        (Punctuation and emphasis omitted.) Tuohy, 331 Ga. App. at 852 (3) (b),
quoting Tarmas v. Secretary of the Navy, 433 Fed. Appx. 754, 761 (III) (B) (11th Cir.
2011) (unpublished opinion in Case No. 10-15370).

                                           9
the disbelief of the City’s overall justification,” nor does it constitute “a direct

showing that a discriminatory reason more likely motivated the City.”16

      Further, Harris has failed to rebut the City’s evidence that dozens of employees

made the complaints and allegations about Harris that DHR gathered during its

investigation and that he twice lied about possessing the City’s laptop computer.

Thus, Harris’s arguments “are insufficient to raise a genuine issue of material fact

regarding whether the City’s reasons for his termination were a pretext for retaliation.

. . . For this reason, the trial court did not err [by] granting the City’s motion for

summary judgment. . . .”17

      Judgment affirmed. Miller, P. J., and Reese, J., concur.




      16
         (Punctuation omitted.) Tuohy, 331 Ga. App. at 852 (3) (b), quoting Blockum
v. Fieldale Farms Corp., 275 Ga. 798, 802 (4) (573 SE2d 36) (2002).
      17
         (Citations omitted.) Tuohy, 331 Ga. App. at 853 (3) (b), citing Crawford v.
City of Fairburn, 482 F3d 1305, 1309 (III) (11th Cir. 2007) (affirming grant of
summary judgment to the employer because the employee failed to rebut the reasons
given for termination); Tiggs-Vaughn v. Tuscaloosa Housing Auth., 385 Fed. Appx.
919, 923 (II) (11th Cir. 2010) (unpublished opinion in Case No. 09-15485)
(employee’s pretext argument insufficient to survive summary judgment because she
failed to rebut her employer’s claim that she was a disruptive employee).

                                          10
