GREENE v. COLUMBUS CONSOLIDATED GOVERNMENT

Filing 10

ORDER terminating 4 Motion to Dismiss for Failure to State a Claim Ordered by US DISTRICT JUDGE CLAY D LAND on 08/18/2016 (nmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
KEVIN GREENE,

*

Plaintiff,

*

vs.

*

COLUMBUS CONSOLIDATED
GOVERNMENT,

*

CASE NO. 4:16-CV-147 (CDL)
*
Defendant.
*
O R D E R
Presently pending before the Court are Defendant’s motion
to dismiss Plaintiff’s complaint (ECF No. 4) and Plaintiff’s
construed motion to amend his complaint (ECF No. 6).1

The Court

finds that Plaintiff should be permitted to amend his complaint
which makes Defendant’s motion to dismiss moot.

The Court,

however, places limits on Plaintiff’s amendments as explained in
the remainder of this Order.
Plaintiff suggests that he may have a claim against the
Muscogee County Sheriff based on the sheriff’s termination of
his

employment.

But

it

is

clear

that

both

official

and

individual capacity claims against the sheriff would be futile.
See Pellitteri v. Prine, 776 F.3d 777, 783 (11th Cir. 2015)

1

Plaintiff did not label his request as a “motion to amend.” But in
Plaintiff’s response to Defendant’s motion to dismiss, Plaintiff
requests leave to amend his complaint. See Pl.’s Resp. to Def.’s Mot.
to Dismiss 14-17, ECF No. 6.

(holding

that

a

Georgia

sheriff

was

entitled

to

Eleventh

Amendment immunity in his official capacity for his decision to
terminate the plaintiff); Mason v. Stallings, 82 F.3d 1007, 1009
(11th Cir. 1996) (holding “that the [ADA] does not provide for
individual liability” in the employment discrimination context);
Albra v. Advan, Inc., 490 F.3d 826, 834 (11th Cir. 2007) (per
curiam) (holding that there is no individual liability for ADA
retaliation claims when the act opposed by the plaintiff is made
unlawful
ADA);

by

the

employment

discrimination

provisions

of

the

Wascura v. Carver, 169 F.3d 683, 387 (11th Cir. 1999)

(holding “that a public official sued in his or her individual
capacity is not an ‘employer’ under the FMLA”).

Accordingly,

the Court does not permit any amendment naming the sheriff as a
Defendant.
The Columbus Consolidated Government (CCG) makes a strong
argument in its motion to dismiss that it is not Plaintiff’s
employer contrary to Plaintiff’s allegation in his complaint.
See Jordan v. Conway, 441 F. App’x 761, 764 (11th Cir. 2011)
(per

curiam)

(affirming

the

district

court’s

dismissal

of

Gwinnett County as an improper defendant in the plaintiff’s ADEA
and Title VII case because the plaintiff, a sheriff’s deputy,
“was employed by the Sheriff’s Department, which, under Georgia
law, is a separate entity from the County”).

2

Plaintiff would be

well served in his amended complaint to state facts that support
his summary allegation that he was an employee of CCG.2
A

review

of

Plaintiff’s

complaint

also

allegations of facts in support of his claims.

reveals

vague

For example, he

does not even allege the nature of his disability or the facts
supporting his contention that he was terminated because of it.
Plaintiff should be mindful of the direction provided by the
Supreme Court in Iqbal and Twombley as to the sufficiency of
pleadings.

See Chapman v. U.S. Postal Serv., 442 F. App’x 480,

485 (11th Cir. 2011) (per curiam) (affirming that the plaintiff
failed

to

state

an

ADA

claim

where

“[s]he

did

not

specify

whether she had a physical or a mental disability, what the
disability was, or how it impaired a major life activity”); cf.
Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1262-63 (11th
Cir. 2004) (“To survive a motion to dismiss, plaintiffs must do
more than merely state legal conclusions; they are required to
allege some specific factual bases for those conclusions or face
dismissal of their claims.”).
2

The Court notes that the court in Jordan did not address the extent
to which Gwinnett County had control over the plaintiff’s termination.
It is unclear from the present record in this case whether the sheriff
delegated to CCG the authority for CCG to make certain employment
decisions regarding Plaintiff and whether CCG accepted that authority
and exercised it in this case. Whether a county could be considered
an employer for purposes of the ADA and/or FMLA under this type of
hybrid situation seems to be a question of first impression in this
circuit.
It also would appear that if Plaintiff makes sufficient
factual allegations in support of such a claim, this issue of first
impression would be best decided on a full factual record at summary
judgment rather than at the motion to dismiss stage.

3

Plaintiff shall electronically file his amended complaint
within twenty-one days of today’s Order and serve it as required
by law.

Defendant shall have twenty-one days from the date of

service to file responsive pleadings to the amended complaint.
IT IS SO ORDERED, this 18 day of August, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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