HICKS v. BOARD OF REGENTS et al

Filing 10

ORDER granting 9 Motion to Dismiss as to Plaintiff's slander claim. The Court grants Plaintiff leave to file an amended complaint as to Plaintiff's Title VII claims on or before January 9, 2012. Ordered by Judge Clay D. Land on 12/16/2011. (ajp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
JEFFREY L. HICKS,

*

Plaintiff,

*

vs.

*
CASE NO. 3:11-CV-94 (CDL)

BOARD
OF
REGENTS
OF
THE *
UNIVERSITY SYSTEM OF GEORGIA
and UNIVERSITY OF GEORGIA,
*
Defendants.

*
O R D E R

Plaintiff Jeffrey Hicks (“Hicks”), who is proceeding pro
se,

asserts

wrongful

termination

and

harassment

claims

under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq.

(“Title

Georgia law,

VII”),

as

well

as

a

slander

claim

pursuant

to

against the Board of Regents of the University

System of Georgia and the University of Georgia (collectively
“Board”).

Presently pending before the Court is the Board’s

Motion to Dismiss

in Lieu of Answer

(ECF No. 9).

For the

following reasons, the Court grants the Board’s motion as to
Hicks’s slander claim.

The Court finds that Hicks’s Complaint

fails to state a claim for relief as to his Title VII claims,
but the Court grants Hicks leave to file an amended complaint as
to his Title VII claims.

MOTION TO DISMISS STANDARD
When considering a 12(b)(6) motion to dismiss, the Court
must

accept

complaint

as

and

true
limit

all

facts

its

consideration

exhibits attached thereto.

set

forth
to

in

the

the

plaintiff=s

pleadings

and

Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
959

(11th

Cir.

2009).

“To

survive

a

motion

to

dismiss,

a

complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’”

Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937,

1949 (2009) (quoting Twombly, 550 U.S. at 570).

The complaint

must include sufficient factual allegations “to raise a right to
relief above the speculative level.”

Twombly, 550 U.S. at 555.

“[A] formulaic recitation of the elements of a cause of action
will

not

do[.]”

Id.

Although

the

complaint

must

contain

factual allegations that “raise a reasonable expectation that
discovery will reveal evidence of” the plaintiff=s claims, id. at
556, “Rule 12(b)(6) does not permit dismissal of a well-pleaded
complaint simply because ‘it strikes a savvy judge that actual
proof of those facts is improbable,’” Watts v. Fla. Int’l Univ.,
495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S.
at 556).

2

PLAINTIFF’S ALLEGATIONS
Hicks’s
According

Complaint

to

the

contains

Complaint,

the

the

following

Board

allegations.

wrongfully

terminated

Hicks’s employment, subjected him to harassment, and slandered
and defamed his character.

Compl. ¶ 4, ECF No. 1.

Hicks claims

that the Board discriminated against him because of his race.
Id. ¶ 6.
Adams—who
against

Hicks names Ralph Johnson, Tim Burgess and Michael
are

him

all

white—as

during

his

the

individuals

employment.

Id.

¶

who

discriminated

7.

discrimination occurred on August 18, 2008.

The

alleged

Id. ¶ 8.

Hicks

asserts that Johnson, Burgess, and Adams did not give him the
same

treatment

Id. ¶ 9.

as

other

employees

“on

several

occasions.”

Hicks filed a charge of discrimination with the Equal

Employment Opportunity Commission in October 2008 and received
his Notice of Right to Sue letter on April 22, 2011.

Id. ¶ 11.

DISCUSSION
I.

Hicks’s Title VII Claims
A.

Failure to State a Claim

Title VII makes it unlawful for an employer “to discharge
any

individual,

or

otherwise

to

discriminate

against

any

individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race.”
42 U.S.C. § 2000e-2(a)(1).

To establish a violation of Title

VII,

demonstrate

a

plaintiff

must

3

that

his

employer

discriminated against him
Complaint

to

sufficient

withstand

factual

because of

the

Board’s

allegations

his race.
motion,

from

For Hicks’s

it

which

must

the

contain

Court

can

reasonably conclude that he has a plausible claim for relief.
E.g., Twombly, 550 U.S. at 570.
The Court finds that Hicks has failed to state a claim
under

Title

VII.

His

Complaint

contains

the

conclusory

assertions that the Board wrongfully terminated him, harassed
him

and

discriminated

against

him

because

of

his

race.

A

plaintiff, however, must present “more than an unadorned, thedefendant-unlawfully-harmed-me accusation” to state a plausible
claim for relief.

Iqbal, 129 S.Ct. at 1949.

Beyond those legal

conclusions, Hicks alleges that the individuals named in his
Complaint did not give him the same treatment as other employees
on

several

occasions.

Compl.

¶

9.

This

allegation

simply

attempts to recite an aspect of Hicks’s prima facie case for
race

discrimination

without

further

factual

support,

and

“a

formulaic recitation of the elements of a cause of action will
not do.”
named

Twombly, 550 U.S. at 555.

individuals

treated

other

Moreover, assuming the

employees

differently,

this

allegation does not allow the Court to reasonably conclude that
Hicks has a plausible claim for race discrimination because he
does not allege that the other employees were outside of his
protected

class.

Hicks’s

Complaint

4

contains

no

factual

allegations to support his harassment claim.

Thus, the Court

concludes Hicks’s Complaint fails to state a claim for wrongful
termination and harassment under Title VII.1
B.

Leave to Amend

Although the Court concludes that Hicks’s Complaint fails
to

state

Procedure

a

claim

15(a)

under

provides

Title
that

VII,

the

Federal

Court

Rule

“should

of

Civil

freely

leave [to amend the complaint] when justice so requires.”
R. Civ. P. 15(a)(2).

give
Fed.

“When it appears that a pro se plaintiff’s

complaint, if more carefully drafted, might state a claim, the
district court should give the pro se plaintiff an opportunity
to

amend

his

complaint

instead

of

dismissing

it.”

Duff

v.

Steub, 378 F. App’x 868, 872 (11th Cir. 2010) (per curiam).
Accordingly, the Court grants Hicks leave to amend his wrongful
termination and harassment claims to cure the deficiencies in
the Complaint.

Hicks’s amended complaint should comply with

Federal Rule of Civil Procedure 8(a)(2), which provides that a
pleading must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”

Fed. R. Civ.

P.

must

8(a)(2).

Thus,

Hicks’s

amended

complaint

provide

sufficient factual allegations describing the manner in which

1

Any potential claim by Hicks under 42 U.S.C. § 1981 (“§
be insufficient for the same reasons.
See Rice-Lamar v.
Lauderdale, Fla., 232 F.3d 836, 843 n.11 (11th Cir. 2000)
the elements of a § 1981 claim are the same as a Title VII

5

1981”) would
City of Ft.
(noting that
claim).

Hicks contends the Board discriminated against him.

If Hicks

fails to file an amended complaint on or before January 9, 2012,
this action will be dismissed in its entirety.
II.

Hicks’s Slander Claim
Hicks

also

claims

“slander/defamation.”

that

the

Compl. ¶ 4.

Board

is

liable

for

Hicks’s Complaint provides

no facts to support this legal conclusion, and the Court finds
this

allegation

relief.

insufficient

to

state

a

plausible

claim

for

Further, Hicks’s slander claim is subject to dismissal

because

the

Board,

as

an

arm

of

the

state,

is

entitled

to

immunity under the Eleventh Amendment to the U.S. Constitution
for this claim.

See Williams v. Bd. of Regents of the Univ.

Sys. of Ga., 477 F.3d 1282, 1301 (11th Cir. 2007) (considering
the Board of Regents and the University of Georgia to be state
entities

for

Eleventh

Amendment

purposes).

“Under

most

circumstances, the Eleventh Amendment bars suits against states
and state entities by their citizens.”

Id.

Though a party may

sue the state if the state has waived its immunity, id., Georgia
has not waived its immunity for tort suits brought in federal
court, see O.C.G.A. § 50-21-23(b) (“The state does not waive any
immunity with respect to actions brought in the courts of the
United

States.”).

Moreover,

immunity for slander claims.

Georgia

expressly

retained

its

O.C.G.A. § 50-21-24(7) (“The state

shall have no liability for losses resulting from . . . libel

6

[or] slander”).

Thus, the Court grants the Board’s Motion to

Dismiss Hicks’s “slander/defamation” claim.
to

grant

Hicks

leave

to

amendment would be futile.

amend

his

The Court declines

slander

claim

because

See Bryant v. Dupree, 252 F.3d 1161,

1163 (11th Cir. 2001) (per curiam) (“A district court need not,
however,

allow

an

amendment

.

.

.

where

amendment

would

be

futile.”).
CONCLUSION
Hicks’s slander claim against the Board is barred by the
Eleventh Amendment, and the Court grants the Board’s Motion to
Dismiss (ECF No. 9) that claim.

The Court finds that Hicks’s

Complaint fails to state a claim for relief under Title VII, but
the Court grants Hicks leave to amend the Complaint as to his
Title VII wrongful termination and harassment claims.

Hicks

shall file an amended complaint on or before January 9, 2012.
Failure to file an amended complaint on or before January 9,
2012

will

result

in

the

dismissal

of

the

Complaint

in

its

entirety.
IT IS SO ORDERED, this 16th day of December, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

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