DEES v. THE GEORGIA AGRICULTURAL EXPOSITION AUTHORITY
ORDER GRANTING 7 Motion for Partial Judgment on the Pleadings. Accordingly, Dees' claims for negligence and IIED are DISMISSED without prejudice. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 11/17/2022. (kat)
Case 5:22-cv-00266-MTT Document 12 Filed 11/17/22 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
THE GEORGIA AGRICULTURAL
CIVIL ACTION NO. 5:22-CV-266 (MTT)
Defendant The Georgia Agricultural Exposition Authority (“GAEA”) moves for
partial judgment on the pleadings against Plaintiff Brittini Dees. Doc. 7. GAEA argues
that Dees’ state law claims must be dismissed. Id. at 3-4. For the following reasons,
GAEA’s motion for partial judgment on the pleadings (Doc. 7) is GRANTED.
Dees was a program coordinator for GAEA from 2017-2021. Doc. 4 ¶¶ 1, 4. She
alleges that while employed by GAEA, she experienced a period of sexual harassment
and assault by Philip Gentry, her supervisor. Id. ¶¶ 4-29. Specifically, “[t]hroughout
[her] employment, Mr. Gentry was flirtatious and inappropriate.” Id. ¶ 5. This behavior
included Gentry allegedly making “sexually charged comments” about Dees and other
female GAEA employees. Id. ¶¶ 5-6. Gentry’s behavior “escalated.” Id. ¶ 8. He
allegedly began to ask Dees for “sexual favors,” send her “inappropriate text
messages,” and show her “vulgar and sexually-charged content on his cell phone and
computer in the workplace.” Id. ¶ 9.
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Gentry’s conduct eventually turned physical. Id. ¶ 10. “During the times that Mr.
Gentry and Ms. Dees were alone in the GAEA office, Mr. Gentry attempted to kiss Ms.
Dees on several occasions, including one occasion in which he forcibly pinned her
against a wall. He attempted to insert his hands inside her clothing, and he continued to
proposition her for sexual favors. He also exposed his penis to Ms. Dees and even
forced her to touch his penis[.]” Id. ¶ 12. Gentry allegedly “would lock the office door
before carrying out his propositions and attacks,” which made “Ms. Dees feel physically
trapped[.]” Id. ¶ 13. This conduct further “escalated between May and July 2020” when
Gentry allegedly “forced Ms. Dees to engage in non-consensual intercourse on multiple
occasions during that three-month window.” Id. ¶ 14.
After Dees confronted Gentry about his behavior in July 2020, he allegedly
threatened her employment. Id. ¶¶ 16-18. He “did not deny that his behavior had been
without her consent” and “told Ms. Dees that if she ever told anybody about what he had
done, he would ‘absolutely deny everything.’” Id. ¶¶ 17, 19. Dees took a medical leave
of absence “due to the stress, anxiety, and mental anguish that she was experiencing[.]”
Id. ¶ 24. “The Office of the State Inspector General … eventually conducted an
investigation into Ms. Dees’ allegations” and “found that Mr. Gentry had violated the
Statewide Sexual Harassment Prevention Policy … that governs GAEA and other State
employees.” Id. ¶¶ 25-26. Dees was “constructively discharged from employment with
GAEA in mid-2021.” Id. ¶ 27.
Dees alleges two state law claims: (1) negligence, and (2) intentional infliction of
emotional distress (“IIED”). Id. ¶¶ 43-60. For her negligence claim, Dees alleges that
GAEA was negligent in hiring, supervising, and protecting its employees and as a result,
Case 5:22-cv-00266-MTT Document 12 Filed 11/17/22 Page 3 of 11
she “was harassed and tormented by her supervisor and suffered the injuries
complained of in this Complaint[.]” Id. ¶¶ 44-53. For her IIED claim, Dees alleges she
suffered “real and severe” emotional distress that “GAEA is liable for … as a result of
the actions and omissions described in [her] Complaint” because GAEA’s conduct “was
extreme, outrageous, and utterly intolerable in a civilized society.” Id. ¶ 55-60.
Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are
closed—but early enough not to delay trial—a party may move for judgment on the
pleadings.” “Judgment on the pleadings is appropriate when there are no material facts
in dispute and the moving party is entitled to judgment as a matter of law.” Douglas
Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir. 2008) (citing Cannon v. City of
W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001)). A motion for judgment on the
pleadings is governed by the same standard as a Rule 12(b)(6) motion. See Mergens
v. Dreyfoos, 166 F.3d 1114, 1117 (11th Cir. 1999). “Where a defendant moves for
judgment on the pleadings, the fact allegations of the complaint are to be taken as true,
but those of the answer are taken as true only where and to the extent that they have
not been denied or do not conflict with those of the complaint.” Parker v. DeKalb
Chrysler Plymouth, 459 F. Supp. 184, 187 (N.D. Ga. 1978) (citing Stanton v. Larsh, 239
F.2d 104 (5th Cir. 1956)). 1
To avoid dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), and
therefore also Rule 12(c), a complaint must contain sufficient factual matter “to ‘state a
The Eleventh Circuit has adopted as binding precedent the decisions of the former Fifth Circuit rendered
prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
Case 5:22-cv-00266-MTT Document 12 Filed 11/17/22 Page 4 of 11
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). At the motion to dismiss
stage, “all well-pleaded facts are accepted as true, and the reasonable inferences
therefrom are construed in the light most favorable to the plaintiff.” FindWhat Inv’r Grp.
v. FindWhat.com., 658 F.3d 1282, 1296 (11th Cir. 2011) (internal quotation marks and
citations omitted). But “conclusory allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts will not prevent dismissal.” Wiersum v. U.S. Bank,
N.A., 785 F.3d 483, 485 (11th Cir. 2015) (cleaned up). A Rule 12(c) motion for
judgment on the pleadings, must “give the defendant fair notice of what the claim is and
the grounds upon which it rests.” Twombly, 550 U.S. at 555 (cleaned up). Where there
are dispositive issues of law, a court may dismiss a claim regardless of the factual
allegations. Patel v. Specialized Loan Servicing, LLC, 904 F.3d 1314, 1321 (11th Cir.
Dees alleges two state law claims against GAEA: negligence and IIED. Doc. 4
¶¶ 43-60. GAEA argues that these claims must be dismissed because they are barred
by sovereign immunity under the Georgia Tort Claims Act (“GTCA”). Doc. 7 at 5-10. 2
2 GAEA also alleged that (1) Dees failed to comply with O.C.G.A. § 50-21-35, (2) Dees’ claim for punitive
damages is barred, and (3) Dees fails to state a claim for relief under state law. Doc. 7 at 10-13. In
response to (1) and (2), Dees amended her complaint to comply with § 50-21-35 and dropped her claim
for punitive damages. Docs. 8; 9 at 2. Moreover, the Court will not address GAEA’s argument that Dees
fails to state a claim for relief because her claims, even if plausibly stated, are otherwise barred by
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A. The Assault and False Imprisonment Exceptions.
First, GAEA argues that Dees’ state law claims should be dismissed because the
claims arise from conduct—assault and false imprisonment—for which the state has not
waived sovereign immunity under the GTCA and are thus barred. Id. at 5.
The GTCA provides a limited waiver of sovereign immunity: “The state waives its
sovereign immunity for the torts of state officers and employees while acting within the
scope of their official duties or employment and shall be liable for such torts in the same
manner as a private individual or entity would be liable under like circumstances;
provided, however, that the state’s sovereign immunity is waived subject to all
exceptions and limitations set forth in this article.” O.C.G.A. § 50-21-23(a). And
although the state “does not waive any immunity with respect to actions brought in the
courts of the United States,” it can waive that federal forum immunity through removal.
§ 50-21-23(b); Stroud v. McIntosh, 722 F.3d 1294, 1302 (11th Cir. 2013) (“[A] state
waives its immunity from a federal forum when it removes a case, which voluntarily
invokes the jurisdiction of that federal forum.”).
One exception to this sovereign immunity waiver is where a plaintiff’s claims
involve certain intentional torts: “The state shall have no liability for losses resulting from
… [a]ssault, battery, false imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, or interference with contractual rights[.]” O.C.G.A. § 50-21-24(7)
(emphasis added). As GAEA correctly points out, Georgia Courts have repeatedly held
that “[t]he focus of the exceptions to liability in O.C.G.A. § 50-21-24(7) is not on the
government action taken, but upon the act that produces the loss.” Dept. of Human
Res. v. Hutchinson, 217 Ga. App. 70, 71-72, 456 S.E.2d 642, 644 (1995). For example,
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in Board of Public Safety v. Jordan, the plaintiff sued the defendant for IIED based on
the circumstances surrounding his termination, including alleged slander and libel,
which are also exceptions under § 50-21-24(7). 252 Ga. App. 577, 577-78, 556 S.E.2d
837, 839, 842 (2001). The court stated, “[t]o determine whether these exceptions
protect the [defendant’s] sovereign immunity, we focus upon the conduct which actually
produced [the plaintiff’s] ‘losses,’ his severe emotional distress and loss of reputation …
[I]f the [defendant’s] acts were slanderous or libelous, then the [defendant] was
protected by immunity.” Id. at 583, 556 S.E.2d at 842; see also Davis v. Standifer, 275
Ga. App. 769, 774, 621 S.E.2d 852, 857 (2005) (“Any alleged losses arising out of the
conduct that would constitute the common law tort of assault or battery upon the
plaintiff’s person fall within the exception[.]”); Southerland v. Ga. Dept. of Corr., 293 Ga.
App. 56, 58, 666 S.E.2d 383, 385 (2008); Cowart v. Ga. Dept. of Human Serv., 340 Ga.
App. 183, 183-85, 796 S.E.2d 903, 905-06 (2017).
In sum, if the act that produced Dees’ loss is an act for which the state has not
waived its sovereign immunity, then Dees’ state law claims are barred.
Dees alleges in her complaint that Gentry harassed her with inappropriate text
messages, pictures, and comments, that he eventually forced her into non-consensual
sexual intercourse, and that after he ceased the physical assaults, her job was
threatened and she was eventually discharged. Doc. 4 ¶¶ 4-29. For her negligence
claim, she alleges she “suffered the injuries complained of in this Complaint” as a result
of GAEA’s negligence. Id. ¶ 53. For her IIED claim, she asserts that “[a]s a result of
GAEA’s actions and inactions described in this Complaint, Ms. Dees suffered emotional
distress that was real and severe.” Id. ¶ 56.
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The Court finds that the loss Dees allegedly suffered resulted from acts for which
GAEA is entitled to sovereign immunity. The “injuries” and “actions and inactions” in
Dees complaint—i.e., nonconsensual touching, intercourse, locking her in a room, and
emotional distress—are all part of Gentry’s alleged assault and false imprisonment
against her. As GAEA states, “from start to finish, Plaintiff’s claims are based upon Mr.
Gentry’s … actions for which GAEA is shielded by sovereign immunity.” Doc. 11 at 4.
Dees argues that “[n]ot everything of which [she] complains constituted an assault or
battery under the law. Mr. Gentry’s behavior began before Ms. Dees was assaulted and
it continued after Ms. Dees was assaulted[.]” Doc. 9 at 7. Dees’ attempt to separate
what happened “before” and “after” the assault does not defeat the fact that the
injuries—the loss—she alleges in her complaint collectively resulted from Gentry’s
assault. And even Dees’ allegations in her complaint emphasize the point. Her use of
the word “escalate” necessarily leads to the conclusion that the actions were all part of
one scheme, albeit terrible, to assault Dees. 3 Doc. 4 ¶¶ 8, 14.
Dees also argues that she only “seeks to hold the State liable for its own
negligence … [that] actually and proximately caused Ms. Dees to be subjected to”
Gentry’s conduct. Doc. 9 at 10. However, a plaintiff’s attempt to “circumvent” the
exception by alleging that the defendant’s breach is the act that caused their loss has
been rejected by Georgia courts. For example, in Georgia Military College v.
Dees, citing Lockhart v. Board of Regents, argues that Georgia courts “previously recognized that even
where a plaintiff suffers a battery at the hands of a government actor, that does not preclude liability
under the GTCA for separate conduct that did not constitute a battery[.]” Doc. 9 at 7; 316 Ga. App. 759,
730 S.E.2d 475 (2012). However, Lockhart involved two clearly separate acts (a botched dental
operation and the correction of that operation); here, there is one act—a continuous assault. Id. at 764,
730 S.E.2d at 479-80. Dees’ comparison to Alred v. Georgia Public Defender Council is also meritless.
362 Ga. App. 465, 869 S.E.2d 99. The court there concluded that the plaintiff did not contend that the
excepted tort, false imprisonment, occurred and therefore the exception did not apply. Id. at 472-73, 869
S.E.2d at 105. However, Dees does contend that a sexual assault occurred.
Case 5:22-cv-00266-MTT Document 12 Filed 11/17/22 Page 8 of 11
Santamorena, the plaintiff sued the defendant for negligence in supervision and
protection based on another student raping the plaintiff on campus. 237 Ga. App. 58,
58, 514 S.E.2d 82, 83 (1999). The plaintiff argued that her negligence claim was not
barred because it was not based on the rape, but upon the defendant’s breach of its
duties to supervise and protect. Id. at 59-61, 514 S.E.2d at 84-85. However, the
Georgia Court of Appeals, citing Hutchinson, held that the defendant’s “actions and
omissions themselves produced no loss to [the plaintiff]; it was the other student’s
independent tort that resulted in her injury and damages. Because her losses stem
from the rape, [the court found] that [defendant was] not subject to liability under the
GTCA.” Id. at 60, 514 S.E.2d at 84-85 (emphasis in original). The court reasoned that
it does “not look at the duty allegedly breached by the government, but focus[es] on the
act causing the plaintiff’s loss.” Id. at 61, 514 S.E.2d at 85; see also Pelham v. Bd. of
Regents of Univ. Sys. of Ga., 321 Ga. App. 791, 796, 743 S.E.2d 469, 473 (2013)
(“Accordingly, if a plaintiff’s injury was caused by an assault and battery committed by a
third party, the state is immune from suit even if the assault and battery was facilitated
by or resulted from the prior negligent performance of a state officer or employee.”). 4
Therefore, even if GAEA breached its duties in hiring, supervising, and protecting, Dees’
loss nonetheless resulted from Gentry’s “independent tort.”
This issue has been repeatedly addressed by the Georgia Court of Appeals. See, e.g., Sommers Oil
Co. v. Ga. Dept. of Agric., 305 Ga. App. 330, 332, 699 S.E.2d 537, 539 (2010) (rejecting a plaintiff’s
attempt to “couch” their claim under negligence, further stating that “[n]omenclature notwithstanding, the
substance of a claim must be considered, and a party cannot do indirectly what the law does not allow to
be done directly.”) (citation and internal quotation marks omitted); Davis, 275 Ga. App. at 775, 621 S.E.2d
at 857 (“Nor can [plaintiff] circumvent the assault and battery exception by alleging that [defendants] were
negligent or deliberately indifferent in their hiring, instruction, supervision, control, and discipline” of their
employee who committed the assault.); Chin Pak v. Ga. Dept. of Behav. Health & Developmental
Disabilities, 317 Ga. App. 486, 487, 731 S.E.2d 384, 385, (2012); Ga. State Bd. of Pardons and Paroles
v. Finch, 269 Ga. App. 791, 605 S.E. 414 (2004).
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And even if GAEA’s negligence is a proximate cause of Dees’ loss, that does not
take her negligence and IIED claims out of the exception. In Department of Human
Resources v. Coley, the Georgia Court of Appeals addressed this argument:
It is true that there may be more than one proximate cause of a plaintiff’s
loss. Regardless of the number of proximate causes, however, the plaintiff
sustains only one ‘loss.’ This loss cannot be apportioned among the various
proximate causes, with part of the loss attributed to one event and another
part attributed to a different event. To treat facts with imagination is one
thing, but to imagine facts is quite another. It cannot be disputed that, when
a plaintiff is injured by an assault or battery, [her] loss ‘results’ from such
assault or battery, even though there may have been other contributing
factors. And the statute clearly provides that the state shall have no liability
for the ‘loss.’
247 Ga. App. 392, 397, 544 S.E.2d 165, 170 (2000). Dees correctly notes that Georgia
Department of Transportation v. Heller rejected the argument that “as long as any one
of the causes connected to a plaintiff’s loss is a cause for which the State would be
immune from suit, the State would always be immune from any suit stemming from such
loss.” Doc. 9 at 9; 285 Ga. 262, 266, 674 S.E.2d 914, 918 (2009). However, the Heller
court was faced with a situation where there were two separate events (a negligent tire
inspection and an improper roadway repair) causing the plaintiff’s loss. 285 Ga. at 266,
674 S.E.2d at 918. But there is no “former” or “latter” event here. Id. There is one
event—Gentry’s assault—for which the state is entitled to sovereign immunity.
Because the acts causing Dees’ underlying loss constitute false imprisonment
and assault, O.C.G.A. § 50-21-24(7)’s exception to Georgia’s sovereign immunity
B. The Discretionary Function Exception.
Next, GAEA argues that the GTCA’s discretionary function exception to the
state’s waiver of sovereign immunity also bars the part of Dees’ negligence claim based
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on hiring and supervision. 5 Doc. 7 at 8-10. In response, Dees argues that her
allegations of negligence in hiring and supervision “do not fall within the definition of
‘discretionary’ functions” because “[t]here was no policy judgment in choosing among
alternate courses of action based upon consideration of social, political, or economic
factors.” Doc. 9 at 12.
The discretionary function exception provides, “[t]he state shall have no liability
for losses resulting from … [t]he exercise or performance of or the failure to exercise or
perform a discretionary function or duty on the part of a state officer or employee,
whether or not the discretion involved is abused[.]” O.C.G.A. § 50-21-24(2).
“Discretionary function or duty” is defined as “a function or duty requiring a state officer
or employee to exercise his or her policy judgment in choosing among alternate courses
of action based upon a consideration of social, political, or economic factors.” O.C.G.A.
In her negligence claim, among other things, Dees argues GAEA was negligent
in hiring and supervising its employees. Doc. 4 ¶¶ 44-52. Dees’ allegations of negligent
hiring and supervision are clearly within the realm of GAEA’s “discretionary functions.”
See Finch, 269 Ga. App. at 794, 605 S.E.2d at 416 (“Employment decisions …
necessarily require consideration of numerous factors and the exercise of deliberation
and judgment. They are therefore precisely the types of administrative action the
discretionary function exception seeks to shield from judicial second-guessing.”)
GAEA also argues that Dees’ “negligent hiring and supervision claims” are “inapplicable” because the
GTCA provides the “exclusive remedy” and thus alternative “theories of liability” are not allowed. Doc. 7
at 8-9. It also argues that because immunity from punitive damages has not been waived, “negligent
hiring and retention claims are redundant.” Id. at 9. This first argument is a misstatement of Dees’ claims
and the second argument relies on overruled case law. See Quynn v. Hulsey, 310 Ga. 473, 482, 850
S.E.2d 725, 732 n. 10 (2020) (overruling Hosp. Auth. Of Valdosta/Lowndes Cnty. v. Fender, 342 Ga. App.
113, 802 S.E.2d 346 (2017)).
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(citation and internal quotation marks omitted). Accordingly, Dees’ negligence claim, to
the extent it is based on hiring and supervision decisions, is alternatively barred by the
discretionary function exception to the state’s waiver of sovereign immunity.
Because Dees’ state law claims are barred by sovereign immunity, GAEA’s
motion for partial judgment on the pleadings (Doc. 7) is GRANTED. Accordingly, Dees’
claims for negligence and IIED are DISMISSED without prejudice.
SO ORDERED, this 17th day of November, 2022.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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