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MAXWELL v. MAYOR &C. OF THE CITY OF SAVANNAH6/5/1997
James Maxwell, a former police officer for the City of Savannah ("the City") sued, among others, the Mayor and Aldermen as the City's governing body, and the City's Chief of Police, David Gellatly. In his complaint, Maxwell alleged, inter alia, that the defendants wrongfully terminated him from his employment as a police officer and that Gellatly defamed him in connection with the termination. Maxwell alleged that these actions constituted violations of his due process rights to property and liberty under 42 U.S.C. § 1983 and state law. These appeals follow the trial court's order disposing of the defendants' motion for summary judgment. In Case No. A97A0316, Maxwell appeals the trial court's grant of summary judgment against him on his section 1983 claims, and in Case No. A97A0317, Gellatly appeals the trial court's denial of his motion on Maxwell's defamation claim. For reasons which follow, we affirm in part and reverse in part the trial court's judgment in Case No. A97A0316, and we affirm the trial court in Case No. A97A0317.
"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. . . . A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e)." (Emphasis in original.) Lau's Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991).
Viewed in a light most favorable to Maxwell, as the respondent to the defendants' motion, the record shows that in 1992 Maxwell was the subject of a federal investigation involving illegal drug activity. Maxwell was subsequently charged in a criminal indictment with conspiracy to possess with intent to distribute and conspiracy to distribute a controlled substance. Following Maxwell's arrest, Gellatly
immediately terminated his employment with the police department.
The termination notice, which Gellatly issued to Maxwell on May 22, 1992, provided that " ffective 5-26-92, your employment with the City of Savannah is terminated for . . . ` onduct unbecoming of an officer.'" The notice further provided that " ithin 24 hours following suspension prior to dismissal, you may respond in a written appeal to the superior of the supervisor who initiated the termination action if you feel the action is unjustified." Finally, the notice informed Maxwell that he had a right to initiate an appeal to the Civil Service Board by filing a notice of appeal within ten days from his receipt of the termination notice. Despite these appeal provisions, and others contained in an employee handbook and the department's Standard Operating Procedures, Maxwell did not appeal his termination. A subsequent trial on the charges against Maxwell resulted in a mistrial, and the indictment was eventually dismissed with prejudice.
In the instant complaint, Maxwell alleged that his termination was in violation of the City's "employee h
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