Johnson Fistel Secures Another Significant Victory on Behalf of City of Roswell First Responders

On May 4, 2020, Johnson Fistel secured another important victory for City of Roswell firefighters when the Supreme Court of Georgia denied the City’s petition for certiorari requesting certiorari review of the Court of Appeals’ unanimous 15-page decision affirming the class certification order issued by Judge Tusan of the Superior Court of Fulton County.  All Supreme Court Justices concurred, except Justice Carla W. McMillian who was disqualified because she authored the Court of Appeals’ decision below.

In Judge Tusan’s class certification order, she certified a class of up to 147 City of Roswell firefighters who were working full-time hours, but whom the City misclassified as “part-time” in order to deprive them of the full-time benefits owed to them.  Applying Georgia law, Judge Tusan found that “[t]he four requirements of O.C.G.A. § 9-11-23(a) have been satisfied: (1) sufficient numerosity – up to 149 potential plaintiffs; (2) commonality – all class members are employees or former employees, employed during a specified period of time, who were classified as part-time employees, while working 40 or more hours per standard week; (3) claims of member representatives are representative of the class as a whole – all class members allege they were denied full-time employee benefits they were entitled to; and (4) representative parties fairly and adequately protect the interests of [the] class as a whole.”  The City refused to accept Judge Tusan’s ruling and appealed.

On appeal, the City argued that Judge Tusan erred by (1) relying on Plaintiffs’ unsupported allegations; (2) finding that class issues predominate; (3) finding that Plaintiffs met their burden of proof as to numerosity; and (4) finding that Plaintiffs satisfied typicality. All three judges on the Court of Appeals panel disagreed with each of the City’s arguments. Presiding Judge McMillian, now a Supreme Court Justice, authored the Court of Appeals’ opinion, with Judge Christopher J. McFadden and Senior Appellate Judge Herbert E. Phipps concurring. The Court of Appeals reasoned that “where each of the class members’ claims arise out of identical terms in the [contract] and each of their claims are brought under the same causes of action,” as was the case here, predominance is satisfied. In support of its finding that Plaintiffs met their burden to establish numerosity, the Court of Appeals pointed to the City’s own documents produced in discovery, which reflect “the names and work hours of potential class members during the relevant time period.” And lastly, the Court of Appeals determined that typicality was also satisfied because the class representatives’ claims “are virtually identical to the claims of each proposed class member.

Following the Court of Appeals’ unanimous decision, the City petitioned for certiorari to the Supreme Court of Georgia, arguing that “confusion among lower courts” in Georgia existed as to the application of the so-called “rigorous analysis” standard applied when determining whether to certify a proposed class, resulting in an abundance of class certification decisions improperly rendered.  Further, the City argued that “if the rulings of the Superior Court and Court of Appeals are allowed to stand, the precedential integrity” of the Supreme Court’s past class certification decisions “will be further eroded and a lesser standard will prevail for class certification in Georgia,” such that certiorari review was warranted in this case.  The Supreme Court disagreed and denied the City’s petition entirely.

The case will now return to Superior Court, where the parties will move forward with merits-based discovery, dispositive motions, and eventually, trial.

“We are so proud to represent our first responders in this important case,” said Michael Fistel, partner at Johnson Fistel and lead attorney on the case.  “In these trying times it is more important now than ever that our first responders are treated and valued in the manner in which they deserve and we look forward to continuing to fight for these heroic men and women as we prepare the case for trial.”

The Johnson Fistel team representing Plaintiffs and the Class includes Michael I. Fistel, Jr., William Stone, Mary Ellen Conner, and Adam Sunstrom. City of Roswell v. Bible et al., A19A1310 (Ga. Ct. App. Sept. 16, 2019).