LIBERTY COUNTY SCHOOL DISTRICT Et Al. v. HALLIBURTON , 328 Ga. App. 422 ( 2014 )

THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
July 16, 2014
In the Court of Appeals of Georgia
A14A0333. LIBERTY COUNTY SCHOOL DISTRICT et al. v.
HALLIBURTON.
B RANCH, Judge.
After Laverne Halliburton’s contract as a school principal in the Liberty County
School District was not renewed for the 2011-2012 academic year, Halliburton sued
the District and a number of its officers, including Superintendent Dr. Judy Burton
Scherer and seven members of the county school board (collectively, “defendants”),
for racial discrimination. Halliburton sought a writ of mandamus, other injunctive
relief, damages, and attorney fees. Defendants moved to dismiss on grounds including
that defendants were entitled to sovereign and/or qualified immunity. On appeal from
the trial court’s denial of the motion to dismiss, defendants argue that their motion
should have been granted because Halliburton had no right to a renewed contract and
because her claims are barred by sovereign and qualified immunity. We conclude that
although the District itself is exempt from suit under sovereign immunity, due to the
very early stage of this litigation, it is conceivable that Halliburton could produce facts
consistent with her claim that Scherer and/or one or more board members acted with
actual malice such that they would not be entitled to qualified immunity. We therefore
affirm in part and reverse in part.
The Supreme Court of Georgia has recently reiterated how a trial court should
treat a motion to dismiss:
“A motion to dismiss for failure to state a claim upon which relief may
be granted should not be sustained unless (1) the allegations of the
complaint disclose with certainty that the claimant would not be entitled
to relief under any state of provable facts asserted in support thereof; and
(2) the movant establishes that the claimant could not possibly introduce
evidence within the framework of the complaint sufficient to warrant a
grant of the relief sought. In deciding a motion to dismiss, all pleadings
are to be construed most favorably to the party who filed them, and all
doubts regarding such pleadings must be resolved in the filing party’s
favor.”
Austin v. Clark, 294 Ga. 773, 774-775 (755 SE2d 796) (2014) (citation omitted),
quoting Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997). In other
words,
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a motion to dismiss for failure to state a claim should not be granted
unless it appears to a certainty that the plaintiff would be entitled to no
relief under any state of facts which could be proved in support of his
claim. If, within the framework of the complaint, evidence may be
introduced which will sustain a grant of relief to the plaintiff, the
complaint is sufficient.
Austin, 294 Ga. at 775 (citation and punctuation omitted). On appeal, we review a trial
court’s decision to grant or deny a motion to dismiss de novo. Chandler v. Opensided
MRI of Atlanta, 299 Ga. App. 415 (682 SE2d 165) (2009).
On September 26, 2011, Halliburton filed a verified complaint in Liberty
County Superior Court alleging that during Scherer’s tenure as superintendent of the
county school district, Scherer treated Halliburton “differently from similarly situated
white employees” in that she “made a recommendation” to the Board “to non-renew”
Halliburton’s contract as principal for the 2011-2012 school year. The complaint
alleged that when the Board voted 4-3 along racial lines not to accept Scherer’s
recommendation, Scherer “illegally,” “without legal authority” and “unilaterally”
refused to renew Halliburton’s contract. According to the complaint, Scherer took
these actions in “retaliation” for Halliburton’s complaints to Scherer about the job
performance of a white assistant principal, which retaliation violated Halliburton’s
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right to freedom of speech. The complaint also alleged that Scherer had “allowed
white employees [of the District] to undermine [Halliburton’s] authority and position,”
had replaced Halliburton with a white principal, and later transferred the white
assistant principal rather than declining to renew or terminating that person’s contract;
that Scherer had discriminated against Halliburton “on the basis of her race” in
violation of her constitutional rights; and that Scherer had acted “oppressively,
maliciously, corruptly, or without authority of law” and with the intent to injure
Halliburton. Finally, the complaint alleged that as a result of defendants’ acts,
including the board members’ ratification of Scherer’s acts, Halliburton suffered
damages including lost past and future wages, mental anguish, emotional distress, and
“physical discomfort.”
On October 26, 2011, defendants filed their verified answer, which included a
motion to dismiss the District and the individual defendants in their official capacity
under sovereign immunity and the individual defendants personally under qualified
(also known as “official”) immunity because their actions “were discretionary and
done in good faith in the performance of [their] official duties.” The answer also
alleged that “all actions taken by any [d]efendant with respect to [Halliburton’s]
allegations” were “legitimate, nondiscriminatory, and unprejudiced” and that no
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defendant had acted with “discriminatory intent.” After Halliburton requested a
hearing, defendants filed a separate motion to dismiss with a supporting brief arguing
for the application of sovereign and qualified immunity. Between December 12 and
December 16, 2011, Halliburton served nine discovery requests on the defendants,
who immediately moved to stay discovery 1 on the ground that the motion to dismiss
“raise[d] exclusively legal issues as to which no discovery is necessary.” On February
17, 2012, after a hearing which was not transcribed, the trial court stayed discovery
pending its ruling on the motion to dismiss. More than a year later, on August 30,
2013, the trial court denied the motion to dismiss without explanation and lifted the
stay on discovery. This appeal followed.
1. Halliburton has moved to transfer this appeal to the Supreme Court of
Georgia on the ground that this Court is not authorized to decide an appeal involving
relief by writ of mandamus. See Ga. Const. of 1983, Art. VI, Sec. VI, Para. III (5)
(giving Supreme Court appellate jurisdiction over “all cases involving extraordinary
1
See OCGA § 9-11-26 (c) (1), (2) (“Upon motion by a party or by the person
from whom discovery is sought and for good cause shown,” a court “may make any
order which justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense,” including “[t]hat the
discovery not be had” and “[t]hat the discovery may be had only on specified terms
and conditions, including a designation of the time or place[.]”
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remedies,” which category includes mandamus); Lamar County v. E. T. Carlyle Co.,
277 Ga. 690, 692-693 (1) (594 SE2d 335) (2004) (Georgia Supreme Court had
exclusive appellate jurisdiction over plaintiff developer’s action for declaratory relief
and mandamus when the trial court had granted plaintiff mandamus relief). The only
issue on this appeal, however, is whether the trial court erred when it denied
defendants’ motion to dismiss on the grounds of sovereign and qualified immunity.
As this trial court did not grant or deny a writ of mandamus, see Mid Ga.
Environmental Mgmt. Group v. Meriwether County, 277 Ga. 670 (594 SE2d 344)
(2004), we conclude that this Court has jurisdiction to entertain this appeal, and we
therefore deny Halliburton’s motion to transfer. See City of Tybee Island v. Live Oak
Group, 324 Ga. App. 476, 477, n. 1 (751 SE2d 123) (2013) (Court of Appeals had
jurisdiction over appeal concerning only whether trial court erred in its ruling on an
inverse condemnation claim even when that claim asked for mandamus relief).
2. Halliburton has also moved to dismiss this appeal as not among the
categories of direct appeals authorized by OCGA § 5-6-34 (a). W e disagree.
In general, a party seeking to appeal an interlocutory ruling who fails to comply
with the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b) deprives this
Court of jurisdiction over the appeal. Bd. of Regents of the Univ. System of Ga. v.
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Canas, 295 Ga. App. 505, 506 (1) (672 SE2d 471) (2009). “A small class of decisions,
however, are excepted” from this rule “by the collateral order doctrine.” Id. In order
to obtain an appeal on a collateral order, the order “must conclusively determine the
disputed question, resolve an important issue completely separate from the merits of
the action, and be effectively unreviewable on appeal from a final judgment.” Id. at
507 (citation and punctuation omitted).
Although this trial court’s order denying the motion to dismiss did not explain
its ruling, the unambiguous posture of this case, including the grounds of sovereign
and qualified immunity raised in the answer and repeated in the motion to dismiss,
suggests that the trial court’s rejection of the defenses of sovereign and qualified
immunity was “conclusive” such that defendants were entitled to a direct appeal under
the collateral order doctrine. Eshelman v. Key, ___ Ga. App. ___ (1) (755 SE2d 926)
(2014) (asserting jurisdiction over denial of summary judgment motion asserting
defense of qualified immunity to a suit brought by a plaintiff bitten by a police dog
that escaped its kennel). Halliburton’s motion to dismiss this appeal is denied.
3. Defendants argue that the District and the individual defendants in their
official capacities are entitled to sovereign immunity as to Halliburton’s claims. We
agree.
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The sovereign immunity of the state and its departments and agencies “can be
waived only by an Act of the General Assembly which specifically provides that
sovereign immunity is thereby waived and the extent of the waiver.” Wellborn v.
DeKalb County School Dist., 227 Ga. App. 377, 379 (4) (489 SE2d 345) (1997), citing
Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e); see also Ga. Dept. of Natural Resources
v. Center for a Sustainable Coast, 294 Ga. 593, 602 (2) (755 SE2d 184) (2014)
(“sovereign immunity [can] only be waived by the General Assembly”). Because the
Liberty County School District is a political subdivision of the State, Crisp County
School System v. Brown, 226 Ga. App. 800 (1) (487 SE2d 512) (1997), the District “is
vested with sovereign immunity unless such immunity is waived” by virtue of the
same constitutional provision. Wellborn, 277 Ga. App. at 379 (4) (citations omitted);
see also OCGA § 36-1-4 (“A county is not liable to suit for any cause of action unless
made so by statute”). Specifically, “[t]he Georgia Tort Claims Act provides for a
limited waiver of the state’s sovereign immunity for the torts of its officers and
employees, but it expressly excludes school districts from the waiver.” Coffee County
School Dist. v. Snipes, 216 Ga. App. 293, 294-295 (454 SE2d 149) (1995), citing
OCGA § 50-21-22 (5) (defining “State” for purposes of the Georgia Tort Claims Act
as including “any of its offices, agencies, authorities, departments commissions,
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boards, divisions and institutions,” but excluding “counties, municipalities, school
districts,” and “other units of local government”) (emphasis supplied).
According to Halliburton herself, the gravamen of her complaint is her request
for “reinstatement” pursuant to a renewed contract as well as “back pay” and “attorney
fees.” Our Constitution waives sovereign immunity in “any action ex contractu for the
breach of any written contract.” Ga. Const. of 1983, Art. I, Sec. II, Para. IX (c). But
this constitutionally sanctioned waiver cannot apply when Halliburton is seeking a
new contract that the District refused to issue. See Bd. of Regents of Univ. System of
Ga. v. Ruff, 315 Ga. App. 452, 455 (726 SE2d 451) (2012) (no waiver of sovereign
immunity when plaintiff could not show that he entered into a written contract with
a university board of regents).
Even if Halliburton seeks to accomplish her goal of obtaining a new contract
by means of injunctive relief, our Supreme Court has recently clarified that a request
for injunctive relief to restrain an allegedly illegal act does not provide any exception
to the fundamental rule that sovereign immunity “can only be waived by an Act of the
General Assembly which specifically provides that sovereign immunity is waived and
the extent of such waiver.” Center for a Sustainable Coast, 294 Ga. at 598 (2),
overruling IBM v. Evans, 265 Ga. 215 (453 SE2d 706) (1995) (citation and
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punctuation omitted; emphasis in original). It is also clear from Halliburton’s
complaint that she impermissibly seeks “to bind the District’s fiscal discretion going
forward” by forcing it to issue her a renewed contract. DeKalb School Dist. v. Gold,
318 Ga. App. 633, 639-640 (1) (734 SE2d 466) (2012) (trial court erred in failing to
dismiss teachers’ claim for “a declaration as to [a school district’s] budgetary
obligations”).2
As this Court has noted, “a primary purpose of the doctrine of sovereign
immunity is the protection of the public purse.” Id. (citation and punctuation omitted).
And “[a] waiver of sovereign immunity must be established by the party seeking to
benefit from that waiver.” Ruff, 315 Ga. App. at 456 (footnote omitted). In the absence
of any showing that the legislature has waived the sovereign immunity of school
2
As to any possible federal constitutional claims, the complaint makes no
reference to 24 USC § 1983. To the extent Halliburton contends that she was deprived
of her constitutional rights pursuant to § 1983, she has failed to allege that any policy
or custom of the District caused the deprivation of her constitutional rights. Thus any
federal constitutional claims predicated on § 1983 should have been dismissed. See
King v. Pioneer Regional Educational Svc. Agency, 301 Ga. App. 547, 552 (1) (688
SE2d 7) (2009) (although “municipalities and other local governmental entities are
included among those persons to whom § 1983 applies,” such entities “may not be
held liable on a respondeat superior theory,” but may be held liable only when
“execution of a government’s policy or custom inflicts the injury” suffered), citing
Monell v. Dept. of Social Svcs., 436 U.S. 658, 690 (II) (98 SCt 2018, 56 LE2d 611)
(1978).
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districts in cases involving the issuance or non-issuance of teacher contracts, we
conclude that the District itself is immune from Halliburton’s suit and that the trial
court should have granted the District’s motion to dismiss on this basis. Coffee
County, 216 Ga. App. at 296 (reversing denial of summary judgment when plaintiff
had not pointed to any “legislative act specifically providing that the sovereign
immunity of [a] school district is waived and the extent of such waiver”).
Further, because “[s]uits against public employees in their official capacities are
in reality suits against the state,” Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d
341) (2001) (punctuation and footnote omitted), such employees are also entitled to
sovereign immunity when they are sued in their official capacities. Id. The trial court
thus also erred when it denied the motion to dismiss as to Scherer and the board
members in their official capacities. Id.
4. Defendants also argue that Scherer and the Board members are entitled at this
stage of the proceedings to qualified immunity concerning Halliburton’s claim for
unlawful discrimination against them in their individual capacities. We disagree.
Under the Georgia Constitution, and except as provided by the Georgia Tort
Claims Act,
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all officers and employees of the state or its departments and agencies
may be subject to suit and may be liable for injuries and damages caused
by the negligent performance of, or negligent failure to perform, their
ministerial functions and may be liable for injuries and damages if they
act with actual malice or with actual intent to cause injury in the
performance of their official functions.
Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d). A suit against a public officer acting
in his official capacity “will be barred by official immunity unless the public officer
(1) negligently performed a ministerial duty, or (2) acted with actual malice or an
actual intent to cause injury while performing a discretionary duty.” Reece v. Turner,
284 Ga. App. 282, 285 (1) (643 SE2d 814) (2007) (citations and punctuation
omitted).3 “In other words, public officials are immune from damages that result from
their performance of discretionary functions, unless those functions were undertaken
with malice or intent to cause injury.” Id.
Defendants correctly point out that the process of issuing a contract to a school
principal involves two steps: a “recommendation” to do so by the “executive officer”
3
As our Supreme Court has explained, “a ministerial act is commonly one that
is simple, absolute, and definite, arising under conditions admitted or proved to exist,
and requiring merely the execution of a specific duty. A discretionary act, however,
calls for the exercise of personal deliberation and judgment, which in turn entails
examining the facts, reaching reasoned conclusions, and acting on them in a way not
specifically directed.” Austin, 294 Ga. at 774 (citation and punctuation omitted).
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(here, superintendent Scherer), and a decision by the school board, pursuant to such
a recommendation, to issue a contract. OCGA § 20-2-211 (a) (“All teachers,
principals, other certificated professional personnel, and other personnel of a local unit
of administration shall be employed and assigned by its governing board on the
recommendation of its executive officer”); see also Gordon v. Dooly County School
Dist., Case No. 5:04CV124, 2005 WL 3560659 *3 (III) (M.D. Ga., Dec. 28, 2005)
(under OCGA § 20-2-211 (a), a board of education “is authorized to take employment
action with respect to District personnel only on the recommendation of the
Superintendent,” and has “no independent authority to hire, fire, or otherwise assign”
personnel). As the two-step process outlined in OCGA § 2-2-211 (a) suggests,
however, and as this Court has held, “the making of decisions regarding the
supervision of students and school personnel is a discretionary function requiring
personal deliberation and judgment.” Reece, 284 Ga. App. at 285 (1) (supervision of
teacher was discretionary such that school district employees were immune from suit
by a student who was molested by that teacher); see also Leake v. Murphy, 274 Ga.
App. 219, 225 (3) (617 SE2d 575 (2005) (supervision of students was discretionary
such that defendant superintendent and board members were immune from suit).
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Halliburton’s complaint alleges that Scherer’s and/or the Board’s decision not
to renew Halliburton’s contract was undertaken with an intent to discriminate against
her on the basis of her race – or, in other words, that one or more of these individual
defendants acted with “a deliberate intention to do wrong.” Adams v. Hazelwood, 271
Ga. 414, 415 (2) (520 SE2d 896) (1999) (citation and punctuation omitted); see also,
e.g., Simpson v. State, 218 Ga. 337, 338 (127 SE2d 907) (1962) (the equal protection
clause of the Georgia Constitution “demands uniformity and impartiality and hence
forbids discrimination”). Even taking account of the complaint’s allegation that the
individual defendants acted “maliciously,” however, any decision by Scherer and/or
any Board member not to renew Halliburton’s contract was a discretionary act for
which Halliburton can recover only if she proves that one of these actors made that
decision with “‘actual malice or an actual intent to cause injury.’” Reece, 284 Ga.
App. at 440 (2), quoting Harper v. Patterson, 270 Ga. App. 437, 440 (2) (606 SE2d
887) (2004).
No discovery has been completed in this case, and “it cannot be said that the
allegations of the complaint disclose with certainty that [Halliburton] would not be
entitled to relief under any state of provable facts in support” of her complaint, which
alleges that the individual defendants acted with actual malice when they decided not
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to renew her contract based on her race. Austin, 294 Ga. at 775 (citation omitted;
emphasis in original). As a result, questions of this complaint’s evidentiary sufficiency
must await summary judgment. The trial court therefore did not err when it denied the
individual defendants’ motion to dismiss Halliburton’s suit against them in their
individual capacities. Id.; compare Chisolm v. Tippens, 289 Ga. App. 757, 760-762
(658 SE2d 147) (2008) (trial court did not err in granting defendant school district and
officials’ motion to dismiss when father’s pro se claims including harassment, cruelty,
and discrimination arising from officials’ refusal to set up conferences, to include
father in parent-teacher association, or to place daughter in a specific class failed to
allege “malicious, wilful, or wanton conduct necessary to overcome defendants’ claim
of immunity”).
5. Defendants assert that the trial court erred when it failed to dismiss
Halliburton’s prayer for mandamus relief compelling “the defendants,” without
distinguishing between the District and the individual defendants, to provide
Halliburton with a hearing and to issue a contract to her. We agree.
OCGA § 9-6-20 provides in relevant part:
All official duties should be faithfully performed, and whenever, from
any cause, a defect of legal justice would ensue from a failure to perform
or from improper performance, the writ of mandamus may issue to
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compel a due performance if there is no other specific legal remedy for
the legal rights[.]
As we have suggested in Division 1, we would transfer this case to our Supreme Court
if Halliburton’s complaint were “capable of being construed” so as to implicate a right
to mandamus relief. City of Dalton v. Smith, 158 Ga. App. 356, 359 (280 SE2d 138)
(1981). Even in the framework set out by Halliburton’s complaint, however, no law
has been cited by Halliburton, and we have found none, suggesting that Halliburton
had a right to a hearing on her non-renewal or that the individual defendants’
decisions not to renew Halliburton’s contract and/or to do so without a hearing could
be anything but discretionary ones. See Dalton City Bd. of Ed. v. Smith, 256 Ga. 394,
395 (1) (349 SE2d 458) (1986) (when petitioners for writ of mandamus had not
established “any right to a school board hearing” on the subject of the non-renewal of
a teacher’s contract, mandamus relief was not appropriate). Being a remedy
“‘designed to compel the doing of ministerial acts,’” mandamus is “‘not an
appropriate remedy to compel the exercise of official discretion.’” Lowe v. State, 267
Ga. 754, 756 (2) (482 SE2d 344) (1997), quoting Speedway Grading Corp. v. Barrow
County Bd. of Commrs., 258 Ga. 693, 695 (1) (373 SE2d 205) (1988).
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With the caveat that no mandamus remedy is available to Halliburton, we affirm
the trial court’s denial of the motion to dismiss as to Scherer and the school board
members in their individual capacities and remand for further proceedings consistent
with this opinion.
Judgment affirmed in part and reversed in part, and case remanded with
direction. Barnes, P. J., and Boggs, J., concur.
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