This lawsuit could be a major factor in future whistleblower lawsuits and basic whistleblower rights/protection. The following article can be found on the Athens Banner Herald website at Regents await ruling on whether fired UGA worker’s whistleblowrer suit can go forward
Regents await ruling on whether fired UGA worker’s whistleblowrer suit can go forwardA whistleblower lawsuit against the Georgia Board of Regents will ultimately be decided by the state Supreme Court, predicted a lawyer for the Regents in Clarke County Superior Court on Friday.
And the Supreme Court’s decision in favor of the Regents will stem a flood of whistleblower lawsuits unleashed after the state legislature passed a law allowing whistleblowers who proved their cases to collect so-called “compensatory” damages in addition to damages they suffered through lost wages or lost employment when employers retaliated against them for bringing wrongdoing to light.
But that law conflicts with part of the state constitution, and the legislature doesn’t have the authority to go against the constitution, attorney Ed Tolley argued on behalf of the Regents.
“It is an important issue when you see the number of whistleblower lawsuits being filed now,” Tolley told Senior Superior Court Judge Robert Adamson in the case of Sallyanne Barrow vs. the Board of Regents. “There’s been an explosion of whistleblower cases since then.”
That’s costing taxpayer money, he argued.
“It is a runaway provision,” he said.
Barrow filed suit Dec. 4, alleging her Dec. 1, 2014 firing from the University of Georgia was retaliation for blowing the whistle on former UGA Alumni Association director Deborah Dietzler.
Barrow went to UGA police and administrators with charges that Dietzler was abusing state policies on leave time and travel, and after an investigation, UGA vice president for external affairs Tom Landrum reassigned Dietzler to another post while she looked for another job.
The office of the state Attorney General later issued an opinion that Dietzler’s actions “likely constituted criminal conduct,” but that prosecution wasn’t advisable because of the way UGA administrators mishandled the case.
Lawyers for the Regents and for Barrow didn’t argue the central factual issue in the case in Friday’s pretrial hearing – whether Barrow was fired in retaliation for bringing Dietzler’s wrongdoing to light, as she claims, or as the state maintains, her sub-par job performance.
In fact, one of the Regents lawyers actually said UGA retaliated against Barrow, but corrected her slip of the tongue later in the hearing. The Regents’ defense also maintains Barrow was terminated for good reason.
Instead, the issues were the ones raised in two motions the Regents lawyers filed asking the judge to dismiss the case because Barrow didn’t file it within a statute of limitations, and to strike down the “compensatory damages” part of it.
Devin Smith, another lawyer for the Regents, told the judge Barrow knew of the alleged retaliation 20 months before she filed her lawsuit, as proved by her letters of complaint to UGA officials and the grievance she filed saying she was being retaliated against after she was transferred to another job with lesser responsibility, but at the same pay.
Under the law, the one-year statute of limitations for filing suit started ticking as soon as she complained of retaliation, Smith argued.
The Regents are also asking the judge to dismiss the case because Barrow didn’t file a letter with the state beforehand saying she intended to sue, as required by another state law.
But each act of retaliation begins a new clock, argued Cheryl Legare, Barrow’s lawyer, and Barrow filed before a year went by following her Dec. 4, 2014 termination.
And the conflict Tolley claims between the state constitution and the Whistleblower Act is not real, she said.
“The Whistleblower Act is not a tort claim. It’s an employment claim,” she said.
State lawmakers had good public policy reasons when they decided whistleblowers should be able to collect compensatory damages, Legare argued – to encourage employees to bring forward their concerns about fraud and abuse “that affect the public coffers.”
Without the possibility of compensatory damages, whistleblowers would have too much to lose, she said.
Adamson didn’t rule on the two motions Thursday, but promised to rule “in a reasonable, timely manner.”
But Tolley should in the meantime ask his clients the Regents whether they’d be willing to enter mediation with Barrow.
If the fairest resolution can be gotten through mediation, “and the judges and lawyers don’t have to be heroes, then we have all won,” Adamson said.
Adamson was appointed to hear the case after all three Western Circuit judges recused themselves from the case.