                               FIRST DIVISION
                               BARNES, P. J.,
                       MILLER, P. J., and MCMILLIAN, 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


                                                                      June 27, 2017




In the Court of Appeals of Georgia
 A17A0295. COWARD et al. v. MCG HEALTH, INC.

      MILLER, Presiding Judge.

      Catherine Coward and Mary Bargeron (collectively “Plaintiffs”) sued MCG

Health, Inc., alleging that MCG Health terminated their employment in violation of

Georgia’s Whistleblower Statute, OCGA § 45-1-4. The trial court granted summary

judgment to MCG Health, and Plaintiffs now appeal, contending, inter alia, that they

each established a prima facie case of retaliation under OCGA § 45-1-4; that MCG

Health’s true reasons for terminating their employment were discriminatory; and that

the reasons articulated by MCG Health for their termination were pretextual.1 After


      1
        The trial court concluded that the Plaintiffs failed to establish a prima facie
case of retaliation. Consequently, the trial court did not reach the issues of whether
MCG Health’s true reasons for terminating Plaintiffs’ employment were
discriminatory or whether its stated reasons for doing so were pretextual.
a thorough review of the record, we conclude that the Plaintiffs failed to show this

Court that their complaints triggered the protections afforded by the Georgia

Whistleblower Statute. Therefore, neither Coward nor Bargeron established that she

engaged in a protected activity for purposes of establishing a prima facie case under

OCGA § 45-1-4, and we must affirm the grant of summary judgment to MCG Health.

             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.
      A de novo standard of review applies to an appeal from a grant of
      summary judgment, and we view the evidence, and all reasonable
      conclusions and inferences drawn from it, in the light most favorable to
      the nonmovant.


(Citation and footnote omitted.) Caldon v. Bd. of Regents of the Univ. System of Ga.,

311 Ga. App. 155 (715 SE2d 487) (2011); see also Tuohy v. City of Atlanta, 331 Ga.

App. 846 (771 SE2d 501) (2015).

      So viewed, the record shows that Plaintiffs are registered nurses. Coward began

working for MCG Health in 2001 and was trained as a charge nurse.2 Bargeron began

working for MCG Health in 2004 as a Senior Staff R.N. and also worked as a charge


      2
        According to the Merriam-Webster Dictionary, a charge nurse is a nurse who
is in charge of one section of a hospital. https://www.merriam-webster.com/
dictionary/charge nurse.

                                         2
nurse. Initially, Plaintiffs were assigned to the child and adolescent psychiatric unit,

and they occasionally worked in the adult psychiatric unit (hereinafter the “Adult

Unit”).

      In August 2009, Plaintiffs were reassigned to work in the Adult Unit on a

regular basis. On September 11, 2009, Coward was assigned to work as the charge

nurse for the 3:00 p. m. to 11:00 p. m. shift in the Adult Unit. Although Coward had

been the charge nurse in the Adult Unit before, including the prior day, she asked

another nurse to take her place as charge nurse for that shift. Coward did not report

the change in assignments to any manager at MCG Health or to the unit clerk who

provided administrative support for the Adult Unit. This was the first time Coward

had changed her charge nurse assignment since her transfer to the Adult Unit.

      On the evening of September 15, 2009, Coward was working in the Adult Unit

when a patient in that ward attempted suicide. Coward’s supervisor came in that night

and took statements from the staff, including Coward. Coward told her supervisor that

she believed that the attempted suicide resulted from short-staffing in the Adult Unit.

One week later, MCG Health terminated Coward’s employment for refusing to

perform her assigned duties as charge nurse on September 11, 2009.



                                           3
      On May 31, 2010, Bargeron was assigned to work as the charge nurse in the

Adult Unit. The unit was busy, and there was no unit clerk when Bargeron arrived for

her shift at 3:00 p. m. Bargeron twice called her manager to report that the unit was

understaffed, and Bargeron’s manager told her both times to obtain the necessary

official status report3 from the prior shift’s charge nurse so as to transition between

the two shifts. During the second phone call, Bargeron informed her manager that she

had not obtained a status report from the prior shift’s charge nurse,4 and Bargeron

refused to go forward with her staffing assignment. The supervisor instructed

Bargeron to go home, and, a few days later, MCG Health terminated Bargeron’s

employment for refusing her May 31 assigned shift.

      Plaintiffs subsequently filed suit against MCG Health, alleging that it retaliated

against them for speaking out about the understaffing and terminated their



      3
        Bargeron testified in her deposition that obtaining the status report involved
meeting with the staff already in the Adult Unit regarding how many patients were
in the unit, what is going on with each patient, including each patient’s level of care,
and whether they were expecting any new admissions.
      4
          Bargeron testified that she got a general “report” based on her own
assessment of the unit and the “little bit” of information she was told by the prior
shift’s charge nurse. Bargeron admitted, however, that she told her supervisor that she
never obtained a status report from the prior shift’s charge nurse, and she admitted
that she never got an official status report.

                                           4
employment in violation of OCGA § 45-1-4 (hereinafter the “Whistleblower

Statute”).5 Following discovery in this case, MCG Health moved for summary

judgment, arguing that Plaintiffs failed to establish a prima facie case of retaliation.

MCG Health further argued that it had legitimate, non-discriminatory reasons for

terminating Plaintiffs’ employment and that Plaintiffs could not show that the reasons

for their termination were pretexual. The trial court granted summary judgment to

MCG Health, and this appeal ensued.

      1. On appeal, Plaintiffs contend that the trial court erred in granting summary

judgment to MCG Health. We disagree.

      The Whistleblower Statute, OCGA § 45-1-4,

      prohibits public employers from (1) 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; or (2)
      retaliating against a public employee 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 law, rule, or regulation.




      5
        Both Coward and Bargeron availed themselves of the internal grievance
process to appeal their terminations, which were upheld.

                                           5
(Punctuation and footnotes omitted.) Caldon, supra, 311 Ga. App. at 158. Our

appellate courts have repeatedly explained that

      [i]n construing a statute, this [C]ourt applies fundamental rules of
      statutory construction [that] require us to construe a statute according to
      its terms, to give words their plain and ordinary meaning, and to look
      diligently for the intention of the General Assembly. Where the plain
      language of a statute is clear and susceptible of only one reasonable
      construction, we must construe the statute according to its terms.


(Citation omitted.) Lue v. Eady, 297 Ga. 321, 332 (3) (b) (773 SE2d 679) (2015).

      In the context of evaluating whether a state whistleblower claim is subject to

summary adjudication, this Court utilizes the McDonnell Douglas burden-shifting

analysis used in Title VII retaliation cases. Tuohy, supra, 331 Ga. App. at 848-849

(1); see McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802-806 (93 SCt 1817,

36 LE2d 668) (1973).

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


                                           6
(Citations omitted.) Tuohy, supra, 331 Ga. App. at 849-850 (1).

         On appeal, Plaintiffs specifically argue that they satisfied the prima facie case

because (i) MCG Health was a public employer; (ii) they engaged in protected

activities when they complained about staffing issues; and (iii) they were terminated

as a result of their conduct.

         To establish a prima facie case of retaliation under the Whistleblower Statute,

         a public employee must demonstrate that (1) [she] was employed by a
         public employer; (2) [she] made a protected disclosure or objection; (3)
         [she] suffered an adverse employment action; and (4) there is some
         causal relationship between the protected activity and the adverse
         employment action.


(Footnote omitted). Albers v. Ga. Bd. of Regents of the Univ. System of Ga., 330 Ga.

App. 58, 61 (1) (766 SE2d 520) (2014); see also Forrester v. Ga. Dept. of Human

Svcs., 308 Ga. App. 716, 722 (1) (a) (708 SE2d 660) (2011) (physical precedent

only).

         Addressing the second prong of the prima facie case,6 the plain language of the

Whistleblower Statute required Coward and Bargeron to show that they either

         6
       Because we conclude that Plaintiffs did not engage in protected activity, we
need not decide whether MCG Health is a “public employer” under the
Whistleblower Statute and we express no opinion on this apparently open question.

                                             7
(1) disclosed a violation of or noncompliance with a law, rule, or regulation to a

supervisor7 or (2) objected to or refused to participate in an activity, policy, or

practice that they reasonably believed to be in violation of or noncompliance with a

law, rule, or regulation. See OCGA § 45-1-4 (d) (2), (3). Under the Whistleblower

Statute, a law, rule, or regulation “includes any federal, state, or local statute or

ordinance or any rule or regulation adopted according to any federal, state, or local

statute or ordinance.” OCGA § 45-1-4 (a) (2).

      (a) Whether Coward made a protected disclosure or objection.

      Coward complained to her supervisor that the Adult Unit was short-staffed

after a patient attempted suicide, which Coward attributed to an insufficient nurse-to-

patient ratio. Coward also told her supervisor that she thought that short-staffing was

affecting patient care and was a “chronic problem.” In making these complaints,

Coward identified only internal operating procedures for staffing requirements as the

basis for her concerns. Indeed, she admitted in her deposition that she never identified

to her supervisor that the understaffing violated any law, rule, or regulation.

Complaints arising under internal policies are not, however, the type of protected


      7
        It is undisputed that neither Coward nor Bargeron made any disclosures to an
outside government agency. See OCGA § 45-1-4 (a) (1), (d) (2).

                                           8
activity the Whistleblower Statute was intended to protect. Edmonds v. Bd. of Regents

of the Univ. System of Ga., 302 Ga. App. 1, 6-7 (1) (689 SE2d 352) (2009) (a safety

concern arising under an internal policy is not a law, rule, or regulation under the

statute), disapproved in part on other grounds, Wolfe v. Bd. of Regents of the Univ.

System of Ga., 300 Ga.223, 232 (2) (d), n. 5 (794 SE2d 85) (2016).

      Construed in Coward’s favor, her own testimony, and the record as a whole,

show that, prior to her termination, Coward failed to engage in any activity that would

have triggered protection under the Whistleblower Statute. Moreover, no evidence

showed that she objected to or refused to participate in an activity, policy, or practice

that she reasonably believed to be in violation of, or in noncompliance with, a law,

rule, or regulation. Regardless of whether these apparently serious concerns may have

been justified by the lack of sufficient nursing support for MCG Health’s patients,

Coward did not alleged that MCG Health violated a law, rule, or regulation until she

filed her response to MCG Health’s motion for summary judgment.

      In reaching this conclusion, we need not determine what terminology is

required to trigger the protections of the Whistleblower Statute, nor do we believe

that the statute requires specific magic words. All we conclude is that Coward’s pre-

termination statements to her supervisors about staffing that was inconsistent with the

                                           9
hospital’s internal policy, without any allegation that this understaffing violated a

law, rule, or regulation, is insufficient.

      Thus, even assuming without deciding that Coward met the other required

elements of a prima facie case, she failed to show that she made a protected disclosure

or objection and, therefore, she failed to establish a prima facie case of retaliation

under the Whistleblower Statute. See OCGA § 45-1-4 (d) (2), (3); Edmonds, supra,

302 Ga. App. at 6-7 (1).

      (b) Whether Bargeron made a protected disclosure.

      Construed in Bargeron’s favor, the record shows that she also complained to

her supervisor only that patient care was lacking because the hospital was short-

staffed and not that MCG Health engaged in any unlawful activity. Consequently, for

the reasons set forth above, Bargeron, like Coward, did not disclose a violation or

failure to comply with any law, rule, or regulation prior to her termination. See

Braithwaite v. Fulton-DeKalb Hosp. Auth., 317 Ga. App. 111, 115 (2) (729 SE2d

625) (2012).

      (c) Whether Bargeron objected to or refused to participate in an activity,

policy or practice which she reasonably believed to be in violation of or

noncompliance with a law, rule, or regulation.

                                             10
      Our analysis of Bargeron’s claim does not end here, however, because she was

terminated for refusing her assigned shift as charge nurse in the Adult Unit, and she

testified that she refused her shift due to concerns about understaffing. Bargeron’s

concerns were based on internal hospital staffing standards and the needs of the

specific patients in the unit at that time. No matter how well-founded, we are

constrained to find that Bargeron’s general safety concerns regarding understaffing

in the unit based on the hospital’s internal operating procedures do not qualify as

protected activity under the plain language of the statute. See OCGA § 45-1-4 (d) (3);

Edmonds, supra, 302 Ga. App. at 6-7 (1). Compare Albers, supra, 330 Ga. App. at 62

(1) (a) (factual question remained regarding whether university police chief engaged

in protected whistleblowing activity where he reasonably believed that the university

administration had obstructed justice in violation of the law by interfering with a

criminal investigation). Consequently, Bargeron also failed to establish that she

objected to or refused to participate in an activity, policy, or practice which she

reasonably believed to be in violation of or noncompliance with a law, rule, or

regulation so as to qualify for the protections of the Whistleblower Statute. Therefore,

she likewise failed to establish a prima facie case of retaliation.



                                          11
        Because neither Coward nor Bargeron engaged in any conduct that qualified

as protected activity under the Whistleblower Statute, the trial court properly

concluded that they failed to satisfy the requirements for a prima facie case of

retaliation. In so holding, we recognize the importance of employees raising safety

concerns. Nevertheless, and no matter how well-intended, Coward’s and Bargeron’s

conduct did not rise to the level of activity specifically given legal protection under

penalty of law by our legislature. See Edmonds, supra, 302 Ga. App. at 6-7 (1).

Compare Albers, supra, 330 Ga. App. at 62 (1) (a). Since the Plaintiffs failed to

engage in an activity that would trigger protection under the Whistleblower Statute,

the trial court properly granted summary judgment to MCG Health.

        2. In light of our conclusion in Division 1 that Plaintiffs failed to establish that

they engaged in protected activity, we need not address Plaintiffs’ remaining

enumerations of error.

        Judgment affirmed. Barnes, P. J., concurs. McMillian, J., concurs in judgment

only.




                                             12
 A17A0295. COWARD et al. v. MCG HEALTH, INC.



      MCMILLIAN, Judge, concurring in judgment only.

      While I concur with the result reached by the majority in this case, I do not

agree with all that is said. Accordingly, I concur in the judgment only, and as a result,

the majority’s opinion is not binding precedent. See Court of Appeals Rule 33 (a).
