Friday filing distinguishes Judge Wheale from regular employees
A Federal Magistrate Court Judge filed his recommendation this past Friday in a 31-page submission that a discrimination suit filed by Tallapoosa Circuit Juvenile Court Judge Laura Lundy Wheale shouldn’t go forward.
Federal Magistrate Court Judge Russell G. Vineyard cited numerous examples of precedent in Federal case law in his recommendation to the US District Court for the Northern District of Georgia that the county’s request for summary judgment and the state’s request for dismissal of the case be granted to the defendants in the case.
Last year, Judge Wheale filed suit against Polk and Haralson Counties over several issues, stating in the filing that due to several factors involved and with alleged evidence of wrongdoing, that she has been a victim of discrimination due to her being the first female appointed to serve as the Juvenile Court Judge and that damages have been suffered including “emotional distress, inconvenience, loss of income and benefits, humiliation and other indignities.”
Those complaints ranged from how much she makes as a judge (starting salary of $121,000 versus the $151,000 that Judge Murphy made after more than 20 years serving,) her ability to hire qualified employees, and the lack of resources that she’s faced since taking over the Juvenile Court bench in Polk and Haralson Counties.
The full filing provides not only a lengthy explanation as to Judge Vineyard’s reasoning for why, as well as additionally citing issues with the case as originally filed because Judge Wheale ultimately in an amended complaint included the State of Georgia as well. The state was not part of the original Equal Employment Opportunity Commission (EEOC) complaint made last year against the county, or the suit filed in November 2020. The EEOC complaint found no wrongdoing on the part of the counties.
Judge Wheale’s amended filing did include the state in her complaint, submitted earlier this year on March 2, 2021.
Read the entire Recommendation from Federal Magistrate Judge Russell Vineyard here.
The court doesn’t make any judgments particularly about whether the allegations made by Judge Wheale in her complaint were factual or not, but Judge Vineyard did provide a detailed look as to whether Judge Wheale’s complaint can stand based on whether she can be classified as an employee or not, and whether that makes her eligible to file the discrimination suit in the first place.
An employee vs. appointee
When appointed or elected as a judge, it is not the county that cuts the individual a check for their time spent overseeing cases on the bench.
That check comes from the State of Georgia, while other benefits like health insurance and supplemental pay are the purview of the counties where the judge sits. Additionally, office budgets for the court are also part of the overall budget of a county where they serve.
In the 2021 adopted budget for Polk County, Judge Wheale’s court had an allowable expenditure of $324,850 along with a Juvenile Clerk of Court budget of $147,735. Polk and Haralson counties split the cost with each other, with Polk bearing 60% of the cost.
Like a department head, leeway is given to judges on how they spend their budget, who they hire or fire for their offices, and how they handle aspects of their courtroom, like scheduling or the creation of programs.
Since the circuit is split between two counties, neither entity is her employer based on the recommendation for dismissal by Judge Vineyard.
The filing from the Federal Magistrate Court looked at this particular problem and claims made by Judge Wheale in her amended filing that both Haralson and Polk Counties were her “joint employers” for the purposes of her filing discrimination charges against both entities. Judge Vineyard specifically cites Title VII language defining an employee, which is:
[A]n individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. . . .
Title VII language (Page 14 of Recommendation)
It is worth noting the EPA defines an employee in the same terms, per the filing.
This is what the state’s request for a dismissal of the case centered around along with additional county filings. In the recommendation, Judge Vineyard covers this with a reading of a Supreme Court case Gregory v. Ashcroft that appointed state court judges were ruled to be exempt from the protections under age discrimination laws, which also defines an employee in the same way as Title VII and the EPA.
The Supreme Court explained that the “statute refer[red] to appointees ‘on the policymaking level,’ not to appointees ‘who make policy,’” and
that “[i]t may be sufficient that the appointee is in a position requiring the exercise of discretion concerning issues of public importance,” which “certainly describes the bench, regardless of whether judges might be considered policymakers in the same sense as the executive or legislature,” Gregory, 501 U.S. at 466-67;
Gregory v. Ashcroft, (Page 15 of Recommendation)
And added as well:
The Supreme Court ruled that “the appointed state court judges fell presumptively under the policymaking-level exemption to the ADEA,” Watts, 2010 WL 3937397 at *8, concluding that “it would not read the ADEA to cover state judges unless Congress had made it clear that judges are included,” id., and since “Congress had not made it clear that the statute covered appointed state judges, the judges were not covered,” id.
(Page 16 of Recommendation)
So this begs the question: is Judge Wheale under this definition of law a “policymaker?” Judge Vineyard covers that as well.
Indeed, as the State points out, juvenile judges exercise discretion regarding issues of public importance, including determining whether a child requires the care and custody of the state, ordering and supervising reunification plans, determining custody and guardianship issues, and determining visitation rights, see [Doc. 47 at 10 (citations omitted)], and “[c]learly, [juvenile] judges must exercise their discretion in each of these functions, as they have the power to interpret and apply the law according to his or her own individual judgment,” and in “resolving disputes, recommending dispositions, and exercising his or her discretion in the judicial functions he or she is authorized to perform under Georgia law, a[ juvenile court judge] formulates policy,”
(Pages 16-17 of Recommendation)
Under state law, the administration of the Juvenile Court in each circuit clearly falls to the Superior Court, who are either elected by voters in their circuit or appointed by the Governor if a Judge is needed to fill the rest of a term if a judge has served past the 24-month mark of a term.
“Each juvenile court created under this article shall be assigned and attached to the superior court of the county for administrative purposes,” says Title 15, Chapter 11 under the Georgia Code.
It continues that “The governing authority of the county of residence of each juvenile court judge shall offer the juvenile court judge or judges insurance benefits and any other benefits except retirement or pension benefits equivalent to those offered to employees of the county, with a right to contribution from other counties in the circuit for a pro rata contribution toward the costs of such benefits, based on county population.”
Based on this, both Haralson and Polk counties have lived up to their requirements under the Georgia Code, and Judge Wheale is not directly an employee of either county and thus Judge Vineyard recommended to drop four of the counts she alleged in her amended complaint against the counties and state.
Additionally, the court looked at claims that because Polk County is responsible for administering her budget, her health insurance, and other areas of employment as a Juvenile Court Judge, they are directly her employer.
The court also cited several cases that looked at this problem previously, and found that because of her status as a Superior Court appointee over the Juvenile Court, her allegations can’t stand up against the legal challenges made by the county on her arguments in the amended filing that Polk and Haralson were her “joint employers.”
Instead, Wheale may establish a joint employer relationship by alleging facts to show that (1) “the two entities operate as a ‘single employer’ or an ‘integrated enterprise,’” (2) “both [entities] control and direct employment activity,” or (3) the “employer delegates sufficient control of some traditional rights over employees to a third party[.]”
(Page 20 of Recommendation)
Essentially, the court is arguing that both the Haralson and Polk County commissions would have to act together in an adverse way to be able to force a legal remedy against either. Judge Vineyard expands upon that legal argument:
Wheale contends that she has alleged sufficient facts to show that the County defendants were her employers or that they may be aggregated with the State under the “joint employer” test. [Doc. 36 at 10-18]. The County defendants maintain that Wheale’s arguments “miss the point” and that “as a matter of law, a juvenile court judge in Georgia is not an employee of the County in which she serves for purposes of Title VII or the [EPA]” and that they are “precluded, as a matter of law, from exercising the level of control over [Wheale] necessary to permit a Court to consider [them]  as [her] employers.”
(Page 22 of Recommendation)
Additionally, the judge found that even in her amended complaint, Judge Wheale failed to “present issues of material fact upon which a judgment against [the County] [d]efendants may be based.”
Part of the claims made in the suit filed last year was that employees within the courthouse, the county government, and the commissions had interfered with her being able to carry out her duties as a judge, ranging from not providing computing resources for the court to use and deleting previous casework, to not cooperating with budgeting processes, among others.
Based on Judge Wheale’s standing as a Juvenile Court Judge, even though she receives benefits from the county and they control her budget, Judge Vineyard’s recommendation to the District Court cites that Judge Wheale’s suit didn’t satisfy the requirements to move forward on proving that Haralson and Polk are her employers.
The filing also noted that she hadn’t met the standards to claim that “deprivations [were] part of a longstanding policy or custom of supporting and recognizing and supporting only male juvenile court judges while discouraging the hiring, support and retention of female juvenile court judges.”
So what’s the next step?
At this point, the only move ahead for Judge Wheale is to hope the U.S. District Court disagrees with the Magistrate and takes on the case.
Otherwise, Judge Wheale’s lawsuit against both counties and the state will be dismissed.
She could potentially file again if new evidence were to come forward substantiating her claims, but that would require at least another year of moving its way through the court system, and only after she seeks a new EEOC complaint including the state, since they weren’t included in the original and not given the opportunity to take part in mediation.
Check back for additional coverage of this story if new information becomes available.