Georgia Federal Court Denies Request to Remand Whistleblower Case

The US District Court for the Southern District of Georgia has refused to remand a former division chief’s whistleblower lawsuit back to state court. EMS Division Chief Summer Patterson filed suit against Bryan County Fire & Emergency Services and Fire Chief Freddy Howell claiming she was retaliated against and forced to resign after voicing her objection to the chief’s disciplinary decision making.

As explained in the complaint:

  • Plaintiff—who was the “Division Chief for Emergency Medical Services, Emergency Management, and Administration” with the Fire Department—notified Defendant Howell that she had received reports of misconduct by one of the Fire Department’s battalion chiefs.
  • She believed the specific misconduct placed Bryan County citizens and Fire Department employees in danger.
  • In April 2023, Defendant Howell ordered her to investigate the issue, and her investigation revealed that the at issue battalion chief should be demoted.
  • Defendant Howell, however, refused to demote the individual, and Plaintiff objected to this decision.
  • Per the Complaint, “[f]ollowing [Plaintiff’s] objections regarding [the employee] and the life/safety issues caused by her actions, Defendant Howell yelled, verbally assaulted, and cussed at [Plaintiff] on multiple occasions,” which Plaintiff claims was consistent with a “pattern [Defendant Howell had] of yelling and verbally assaulting” Plaintiff and others.
  • Within about a month later, Plaintiff again objected to Defendant Howell’s refusal to demote the battalion chief and she also voiced objections on another issue, specifically her belief that another female within the Fire Department was being discriminated and retaliated against by Defendants.
  • Plaintiff claims that Defendant Howell thereafter retaliated against her for voicing those objections by assigning undesirable additional tasks to her, which required her to work more hours in violation of the Fair Labor Standards Act.
  • Less than two weeks later, Defendant Howell also decided to move a training class location from a site that was already accredited to a not-yet-accredited location, which Plaintiff claims caused the County to incur major unnecessary expenses.
  • According to Plaintiff, this was a retaliatory action against her because it caused extra work for her and “ke[pt] [her] from her supervising responsibilities.”
  • Plaintiff also alleges that, at some undisclosed time, in seeking out candidates for a new position in the Fire Department, Defendant Howell instructed an administrative assistant to only select applicants who were “25-35 years old, female, and attractive,” which Plaintiff claims created “a toxic work environment and a culture of sexual harassment,” and also constituted age discrimination in violation of federal law.
  • Plaintiff claims that, even after the County was made aware of the Fire Department’s and Defendant Howell’s treatment of her after she made the reports and objections, “Defendants have engaged in repeated, ongoing, and continuous adverse employment actions against [Plaintiff].”
  • On or about June 30, 2023, Plaintiff resigned from the Fire Department because the toxic work environment had become “detrimental to her mental and physical health” and because “Defendants had removed her job responsibilities and reassigned her to menial degrading tasks.”

Chief Patterson filed suit in Bryan County Superior Court claiming the county violated the Georgia Whistleblower Act, O.C.G.A. § 45-1-4. She also claimed the county violated her federal Constitutional rights and certain federal laws. Due to the federal allegations, the county had the case removed to federal court. Chief Patterson argued that removal was inappropriate and sought to have the case remanded back to state court because her claims were essentially under Gerogia’s Whistleblower Act, and that the federal allegations were “derivative.”

At about the same time Chief Patterson also filed an amended complaint to address certain pleading deficiencies. As the court pointed out, her complaint still alleges federal issues, giving the court jurisdiction to hear the case. Quoting from the decision:

  • Plaintiff filed an Amended Complaint.
  • While this version contains more allegations and causes of action, Plaintiff continues to assert that Defendants committed, and are liable to her for: “First Amendment Violations” (Count Eight); “Failure to Provide a Workplace Free of Harassment, Discrimination, and Retaliation,” which covers the time period “before, after, and because of, her reporting of matters of public concern,” and resulted in the denial of her “clearly established . . . federal rights and Constitutional rights,” (Count Ten); “Failure to Provide a Workplace Free from Harassment, Assault, and Title VII Violations,” which specifically alleges that Defendants failed to take any meaningful action to remediate the sexual harassment and hostile work environment Plaintiff experienced, thereby denying her of her “clearly established federal and Constitutional rights,” and also alleges that there was a “general policy and practice” within the Fire Department “to facilitate and conceal wrongdoing . . . and to intimidate, harass, obstruct, and retaliate against anyone who dares shed light on [internal] corruption,” (Count Eleven); “Lack of Policies and Procedures for Harassment, Discrimination, or Retaliation,” which “effectively denied [Plaintiff’s] clearly established federal rights and Constitutional rights,” (Count Twelve); and failure to train employees, administrators and staff on “how Title VII protects against sexual harassment and discrimination, their rights and obligations under Title VII and how to file a grievance,” which “effectively denied [Plaintiff] . . . of [her] clearly established federal rights and Constitutional rights.”
  • Additionally, within Count Three (“Retaliation by Adding Impossible Job Duties”), Plaintiff alleges that, when Defendant Howell assigned additional tasks to Plaintiff following her objections, he “kn[ew] it would be . . . in violation of [the] Fair Labor [S]tandards [Act] for Plaintiff to work that many hours per week.”
  • Federal question jurisdiction unquestionably exists here, and Plaintiff’s arguments to the contrary strain credulity. Plaintiff relies on federal statutes and the United States Constitution as the gravamen of many of her claims. The Court has never seen a represented party contest removal after so clearly relying on federal law.
  • The Court cautions Plaintiff not to make similar specious arguments again.
  • Plaintiff is flatly wrong in asserting that all her federal claims “occurred as a result of” the activity that she claims was protected by the Georgia Whistleblower Act.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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