Magistrate Judge Recommends Georgia Division Chief’s Termination Be Upheld

A US Magistrate Judge in Georgia has recommended the dismissal of all claims brought by a division chief who was terminated after reporting sexual misconduct by other chief officers. Division Chief Christopher Cox claims that he was terminated by the City of Calhoun in retaliation for reporting a deputy chief and a battalion chief to the fire chief, and then complaining to the city administrator that the fire chief had failed to address the problem.

The city countered that Chief Cox was terminated for making false allegations, going outside the chain of command, and failing to properly do his job. Chief Cox filed suit alleging a violation of Title VII (sexual harassment and retaliation), violation of his First Amendment rights, violation of the Georgia Whistleblower Act, and civil conspiracy. The suit was filed in the US District Court for the Northern District of Georgia.

The city moved to have the case decided in its favor based upon the pleadings. The case was referred to the Magistrate, who acknowledged the essential facts as laid out by Chief Cox. However, the Magistrate concluded that following his termination he was given the opportunity for a full independent hearing before a city-appointed attorney-examiner who concluded that “that plaintiff’s termination was justified, denied the appeal, and affirmed the termination.” The examiner’s decision was premised upon a police investigation into Chief Cox’s allegations that concluded:

• Cox was terminated for a combination of three basic reasons: The first relates to violating the appropriate chain of command; second, that in addition to allegations made relating to Smith as outlined above, Cox made false allegations of coverup and potentially criminal allegations against Nesbitt and Mills; and third, Cox failed to appropriately fulfill his duties by deliberately or negligently disregarding requests concerning training shortcomings at the City of Calhoun Fire Department.

The Magistrate reasoned that since the examiner had reached certain factual conclusions, the court was not at liberty to re-examine those conclusions. The Magistrate referenced the legal concepts of collateral estoppel and issue preclusion as grounds for the decision. A copy of the Magistrate’s decision is included below. The Magistrate’s decision will now go to the District Court Judge who can approve of, modify, or reject it entirely.

Without regard to the merits of Chief Cox’s claims – let’s hope the District Court Judge takes a hard look at the Magistrates reasoning. Applying issue preclusion to a case like this is deeply concerning. Chief Cox is not seeking a de novo factual review of the appropriateness of his termination. If he was, such a ruling might arguably be understandable. Chief Cox is making independent claims – including claims of civil rights violations – that should not be stifled. Again – I am not speaking to the merits of those claims. Chief Cox could be totally wrong and the city totally right. However, that determination should not be unalterably left to an “independent examiner” hired by those accused of violating an employee’s Title VII rights, First Amendment rights, violating the state’s whistleblower protection law, or engaging in a civil conspiracy. Even more concerning is the fact that the theoretically-independent examiner premised his decision on an investigation conducted by the city’s own police department. Should this ruling be upheld it would provide a blue print for a city in Georgia to virtually guaranty it will never be held liable for violating its employees’ civil rights. It is type of reasoning one might expect in Russia or China, not the United States.