Williams v. Kimbrough et al

Filing 28

ORDER AND OPINION denying as moot 8 Defendants' First Motion to Dismiss; denying 10 Plaintiff's Motion to Add Parties; and granting 20 Defendants' Second Motion to Dismiss. Plaintiffs federal claims are dismissed with prejudice and her state law claims are dismissed without prejudice. Signed by Judge Julie E. Carnes on 2/13/13. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

LADONNA WILLIAMS,
Plaintiff,
CIVIL ACTION NO.
v.

1:12-cv-1570-JEC

SHERIFF KEMUEL KIMBROUGH, in
his official capacity as the
Clayton County Sheriff, ALICIA
PARKES, individually and in her
official capacity as Deputy
Sheriff of Clayton County, and
JOHN DOE 1 & 2, individually
and in their official
capacities as employees of the
Clayton County Sheriff’s
Department,
Defendants.
ORDER & OPINION
This action is before the Court on defendants’ First and Second
Motions to Dismiss [8] and [20] and plaintiff’s Motion to Add Parties
[10].

The Court has reviewed the record and the arguments of the

parties and, for the following reasons, concludes that defendants’
First Motion to Dismiss [8] should be DENIED as moot, defendants’
Second Motion to Dismiss [20] should be GRANTED, and plaintiff’s
Motion to Add Parties [10] should be DENIED.

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BACKGROUND
This is an employment discrimination case.

Sometime in 2010,

plaintiff met with defendant Kimbrough to discuss an employment
opportunity in the Clayton County Sheriff’s Office. (Am. Compl. [11]
at ¶ 11.)

According to plaintiff, Kimbrough was flirtatious during

the meeting.

(Id.)

He gave plaintiff his cell phone number and told

her to call any time she needed to reach him.

(Id.)

Following the

meeting, Kimbrough decided to hire plaintiff as a clerk in the
Records Department.

(Id. at ¶ 14.)

Kimbrough subsequently arranged for plaintiff to take the GED
test and personally drove her to the test site.
Plaintiff

failed

the

GED

test,

as

well

as

the

(Id. at ¶ 15.)
Georgia

Crime

Information Center (“GCIC”) and National Crime Information Center
(“NCIC”) tests.

(Am. Compl. [11] at ¶ 16.)

Consequently, plaintiff

was told that she would have to interview with a Hiring Board before
assuming her position. (Id. at ¶¶ 16-17.) Based upon her interview,
the Board reported that plaintiff was arrogant, unprofessional and
unqualified for a job with the Sheriff’s Office.

(Id. at ¶ 17.)

Nevertheless, Kimbrough permitted plaintiff to begin working in the
Records Department.

(Id. at ¶ 18.)

During plaintiff’s subsequent employment, Kimbrough stopped by
plaintiff’s desk to check on her approximately three times a week.
(Id. at ¶ 19.)

At the same time, defendant Alicia Parkes began
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stopping by plaintiff’s desk and eventually befriended her.
Compl. [11] at ¶ 20.)

Shortly thereafter, Parkes began making

unwanted sexual remarks and advances towards plaintiff.
21-22.)

(Am.

(Id. at ¶¶

Specifically, Parkes:

(1)

asked plaintiff if she found Parkes attractive;

(2)

asked plaintiff if she would consent to a sexual encounter
with Parkes and Kimbrough;

(3)

sent unsolicited nude pictures to plaintiff;

(4)

stated loudly and in front of other employees that
plaintiff’s breasts were “too large for her bra” and then
grabbed her own breasts and shook them at plaintiff; and

(5)

showed plaintiff a cell-phone video that Parkes had taken
of another female employee using the restroom.

(Id. at ¶ 22.)
Plaintiff reported the above incidents to her supervisor and to
Internal Affairs on August 20, 2010.

(Id. at ¶ 23.)

Upon submitting

her report, plaintiff was immediately transferred to the warrant
division of the Sheriff’s Office.

(Id. at ¶ 24.)

After the

transfer, Parkes and other Sheriff’s Office employees began taunting
and harassing plaintiff.

(Am. Compl. [11] at ¶ 24.)

hand, Kimbrough avoided all contact with plaintiff.

On the other
(Id.)

Internal Affairs investigated plaintiff’s claims and concluded
that both plaintiff and Parkes had violated certain policies of the
Clayton County Sheriff’s Office.
investigation,

Parkes

was

(Id. at ¶ 25.)

reprimanded
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and

As a result of the

eventually

placed

on

administrative leave in connection with the restroom videotaping
incident.

(Id. at ¶¶ 28-31.)

September 2, 2010.

Plaintiff was terminated, effective

(Id. at ¶ 25.)

Following her termination, plaintiff initiated this lawsuit.
(Compl. [1].) In her initial complaint, plaintiff asserted a federal
claim for gender discrimination and state claims for hostile work
environment, retaliation and intentional and negligent infliction of
emotional distress.

(Id. at ¶¶ 36-68.)

Defendants moved to dismiss

those claims, and plaintiff responded with an amended complaint and
a related motion to add several parties. (Defs.’ Mot. to Dismiss [8]
and Pl.’s Mot. to Add Parties [10].)

In the amended complaint,

plaintiff asserts federal claims for First Amendment retaliation
under §§ 1981 and 1983 and state claims for intentional infliction of
emotional distress and negligent hiring and retention.

(Am. Compl.

[11] at ¶¶ 39-66.)

Defendants filed a second motion to dismiss the

amended complaint.

(Defs.’ Mot. to Dismiss [20].)
DISCUSSION

I.

DEFENDANTS’ MOTIONS TO DISMISS [8, 20]
In the amended complaint, plaintiff has either abandoned or

repled all of her initial claims.
[11].)

(See Compl. [1] and Am. Compl.

Accordingly, defendants’ first motion to dismiss [8] is

superceded by the amended complaint and is DENIED as moot.

In

determining whether to dismiss the action, the Court will only
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consider defendants’ second motion [20] pertaining to the claims
asserted in the amended complaint [11].
A.

Applicable Standard

In deciding a motion to dismiss, the Court assumes that all of
the allegations in the complaint are true and construes the facts in
favor of the plaintiff.

Randall v. Scott, 610 F.3d 701, 705 (11th

Cir. 2010). That said, in order to avoid dismissal a complaint “must
contain sufficient factual matter, accepted as true, to ‘state a
claim [for] 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)).

A claim is “facial[ly] plausib[le]” when

it is supported with facts that “allow[] the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.”
B.

Id.
Plaintiff’s Claims
1.

Section 1981

Plaintiff indicates in her response that she intends to withdraw
her § 1981 claim.

(Pl.’s Resp. Br. [22] at 12.)

Section 1981 does

not protect against gender discrimination, sexual harassment or
retaliation resulting from complaints of either.

See Ferrill v.

Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999)(“Section 1981
prohibits intentional race discrimination”) and Tippie v. Spacelabs
Med., Inc., 180 Fed. App’x 51, 56 (11th Cir. 2006)(dismissing a §
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1981 claim).

Rather, § 1981 by its terms applies only to racial

discrimination.

42 U.S.C. § 1981 (requiring that “[a]ll persons” be

granted the same contractual rights as “white citizens”).

Plaintiff

does not allege, and none of the facts in the amended complaint
support an inference of, race discrimination.
Accordingly,

the

Court

GRANTS

defendants’

(Am. Compl. [11].)
motion

to

dismiss

plaintiff’s § 1981 claim.
2.

Section 1983

To prevail on her § 1983 claim, plaintiff must show that
defendants (1) violated her constitutional rights (2) under color of
state law.

Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005).

In support of her § 1983 claim, plaintiff alleges that defendants
terminated her employment under color of state law and in violation
of the First Amendment. (Am. Compl. [11] at ¶ 40-41.) Specifically,
plaintiff

claims

that

her

termination

was

in

retaliation

for

complaining about the sexual harassment that she experienced in the
Sheriff’s Office.

(Id. at ¶¶ 41-44.)

According to plaintiff, the

termination therefore violated her right to free speech under the
First Amendment.

(Id. at ¶ 41.)

As a threshold requirement, a First Amendment plaintiff must
establish that she engaged in protected speech.

Battle v. Bd. of

Regents for Ga., 468 F.3d 755, 760 (11th Cir. 2006).

A public

employee’s speech is only protected when the employee speaks “as a
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citizen on a matter of public concern.”

Id.

When a public employee

speaks not as a citizen, but as an employee, the speech is not
protected. Mitchell v. Hillsborough Cnty., 468 F.3d 1276, 1284 (11th
Cir. 2006). Thus, personal grievances and work-related complaints do
not implicate the First Amendment.

Id.

See also Garcetti v.

Ceballos, 547 U.S. 410, 421 (2006)(emphasizing that a public employee
must speak as a citizen to be protected under the First Amendment)
and Boyce v. Andrew, 510 F.3d 1333, 1345 (11th Cir. 2007)(First
Amendment protection is not available to speech that only pertains to
internal employee matters).
The only speech that plaintiff alleges, either in the amended
complaint or in her briefing, is the sexual harassment report that
she submitted to her immediate supervisor and to Internal Affairs.
(Am. Compl. [11] at ¶ 23.)

By submitting the report, plaintiff

claims that she was speaking out on a matter of public concern:
namely, the illegal and potentially criminal activities of Clayton
County employees.

(Id. at ¶¶ 42-43.)

Nevertheless, it is apparent

from the face of the complaint and from her briefing that plaintiff
spoke as an employee, and not as a citizen.

(Id. at ¶¶ 23, 42-43 and

Pl.’s Resp. Br. [22] at 8-9.) Plaintiff’s internal sexual harassment
complaint was not designed to publicize malfeasance in the Sheriff’s
Office, but to improve the conditions of her employment.

See Boyce,

510 F.3d at 1346 (denying First Amendment protection where the
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purpose of the plaintiffs’ complaints was not to raise public
awareness but to have their caseloads reduced).
complaint does not constitute protected speech.

As such, her

Id.

In her response brief, plaintiff cites a news report concerning
the events that led to her sexual harassment complaint. (Pl.’s Resp.
Br. [22] at 8.)

However, plaintiff does not suggest that she

reported the story to the media. Indeed, plaintiff concedes that she
only spoke about her harassment in the context of the internal
grievance that she filed with her supervisor and Internal Affairs.
(Id. at 9 and Am. Compl. [11] at ¶ 23.)

That the events in the

Sheriff’s Office were considered newsworthy does not change the fact
that plaintiff only spoke about those events as an employee, rather
than as a citizen.

Boyce, 510 F.3d at 1344 (the relevant inquiry is

not whether the public is interested in the speech, but whether the
purpose of the speech was to raise an issue of public concern) and
Mitchell, 468 F.3d at 1283-84 (an employee’s “quotidian, work-a-day
grievances are not constitutionally protected”).
As indicated above, a public employee “‘may not transform a
personal grievance into a matter of public concern by invoking a
supposed popular interest in the way public institutions are run.’”
Boyce, 510 F.3d at 1344 (quoting Ferrara v. Mills, 781 F.2d 1508,
1516 (11th Cir. 1986). Applying that principle, the Eleventh Circuit
has consistently rejected First Amendment claims based on essentially
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the same facts that plaintiff asserts in this case.

See Morgan v.

Ford, 6 F.3d 750, 754-55 (11th Cir. 1993)(the plaintiff’s internal
complaints about her sexual harassment did not constitute protected
speech) and Maggio v. Sipple, 211 F.3d 1346, 1352-53 (11th Cir.
2000)(reaching the same conclusion as Morgan).

Under the relevant

case law, plaintiff’s allegations concerning her speech do not state
a

“facial[ly]

Amendment.

plausib[le]”

claim

Iqbal, 556 U.S. at 678.

for

relief

under

the

First

Accordingly, the Court GRANTS

defendants’ motion to dismiss [20] plaintiff’s First Amendment claim.
3.

Remaining State Law Claims

As all of plaintiff’s federal claims have been removed from the
case, 28 U.S.C. § 1367(c)(3) applies.

Pursuant to § 1367(c)(3), the

Court may decline to exercise supplemental jurisdiction over pendant
state claims if it has dismissed all of the claims over which it has
original jurisdiction.

28 U.S.C. § 1367(c)(3).

The Supreme Court

has observed that:
a federal court should consider and weigh in each case, and
at every stage of the litigation, the values of judicial
economy, convenience, fairness, and comity in order to
decide whether to exercise jurisdiction over a case brought
in that court involving pendant state-law claims. When the
balance of these factors indicates that a case properly
belongs in state court, as when the federal-law claims have
dropped out of the lawsuit in its early stages and only
state-law claims remain, the federal court should decline
the exercise of jurisdiction by dismissing th[ose claims]
without prejudice.

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Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)(footnote
omitted).

See also Hardy v. Birmingham Bd. of Educ., 954 F.2d 1546,

1550 (11th Cir. 1992).
The Court concludes that dismissal of plaintiff’s state law
claims is appropriate in this case because plaintiff’s federal claims
have been dismissed in the early stages of the litigation.

See

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)
("Certainly, if the federal claims are dismissed before trial . . .
the state claims should be dismissed as well.").

Accordingly, the

Court DISMISSES without prejudice plaintiff’s remaining state law
claims for negligent hiring and retention and intentional infliction
of emotional distress.
II.

PLAINTIFF’S MOTION TO ADD PARTIES [10]
In her motion to add parties, plaintiff seeks permission to

assert claims against Kimbrough in his individual capacity and to add
Clayton County and Garland Watkins, Chief Deputy of the Clayton
County Sheriff’s Department, as defendants.
Parties [10].)

(Pl.’s Mot. to Add

Plaintiff does not assert any allegations against

Kimbrough or the new defendants sufficient to cure the pleading
deficiencies noted above.

Accordingly, plaintiff’s motion to add

parties [10] is DENIED because the amendments plaintiff suggests
would be futile.

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CONCLUSION
For the foregoing reasons, the Court DENIES as moot defendants’
First Motion to Dismiss [8]; DENIES plaintiff’s Motion to Add Parties
[10];

and

GRANTS

defendants’

Second

Motion

to

Dismiss

Plaintiff’s federal claims are dismissed WITH PREJUDICE.

[20].

Her state

law claims are dismissed WITHOUT PREJUDICE. The clerk is directed to
DISMISS and CLOSE this action.

SO ORDERED, this 13th day of February, 2013.

/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE

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