Fareed v. Cobb County School District, Inc. et al
ORDER denying as moot Plaintiff's 7 First Motion to Amend. Plaintiff's 11 Second Motion to Amend is DENIED. Defendants' 2 Motion to Dismiss is GRANTED. The Clerk is directed to close the case. Signed by Judge Richard W. Story on 6/20/2014. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
COBB COUNTY SCHOOL
DISTRICT, INC. and COBB
COUNTY SCHOOL DISTRICT
CIVIL ACTION NO.
This case is before the Court on Defendants’ Motion to Dismiss ,
Plaintiff’s First Motion to Amend , and Plaintiff’s Second Motion to Amend
. After reviewing the record and the Parties’ submissions, the Court enters
the following Order.
From October 2012 to May 2013, Plaintiff was employed by the Cobb
County Public Safety Department as a school Patrol Officer. Some time around
May 25, 2013, Cobb County students were released for summer break and
At the motion to dismiss phase, the Court accepts as true all well-pleaded
facts in the Complaint.
Plaintiff’s work ended. Plaintiff assumed he would return to his position when
the school year resumed in the Fall. Plaintiff was informed, however, that his
position had been moved from the Public Safety Department to the Cobb
County School District (“CCSD”).
Plaintiff alleges that he was told he would be returning to his position on
August 7, 2013. He was instructed by CCSD to complete an application, which
he did. On August 7, Plaintiff was told by Kevin Kiger, human resources
supervisor for CCSD, to report on August 13, 2012, for the paperwork process.
However, on August 9, Kiger called Plaintiff and told him not to report to work
until Plaintiff contacted Kiger’s office. Plaintiff called the office on August 12,
at which time Kiger told Plaintiff that he would have to check with his
supervisors before Plaintiff could report to work. Later that same day, Kiger
called Plaintiff to inform him that he was disqualified from the position because
of his criminal background. Plaintiff states that he disclosed his criminal
conviction on the CCSD application and to his former employers in the Public
Based on the aforementioned allegations, Plaintiff seeks compensatory
and punitive damages for intentional infliction of emotional distress (count I)
and breach of the covenant of good faith and fair dealing (count II), wrongful
termination, and violation of the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.2
Plaintiff’s Motions to Amend
Both of Plaintiff’s motions to amend seek to add the Cobb County Board
of Education as a defendant in this matter. (See , .) Plaintiff does not
seek in either motion to add factual allegations or claims. (Id.) Thus, the Court
finds the earlier motion  moot and considers the merits of the later-filed
Defendants oppose Plaintiff’s motion on grounds that amendment would
be futile.3 (See generally, Def.s’ Resp., .) Although leave to amend should
be freely given under Federal Rule of Civil Procedure (“Rule”) 15(a)(2),
Defendants are correct that leave may be denied on grounds of futility. See
Mann v. Palmer, 713 F.3d 1306, 1316 (11th Cir. 2013) (“Although leave to
The last two claims are not listed as separate counts, but because Plaintiff is
proceeding pro se, the Court liberally construes the Complaint.
Defendants’ argument is the same for both of Plaintiff’s motions to amend.
Again, the Court considers the later submission.
amend shall be freely given when justice so requires, a motion to amend may be
denied on numerous grounds such as undue delay, undue prejudice to the
defendants, and futility of the amendment.”) (internal quotations and citation
omitted). Amendments that would not withstand a motion to dismiss are futile.
Fla. Power & Light Co. v. Allis Chalmers Corp., 85 F.3d 1514, 1520-21 (11th
Defendants argue that the Board of Education is not an entity subject to
suit, and therefore any claims against it would be subject to dismissal. (Def.s’
Resp.,  at 5-6 of 10.) The Court agrees with Defendants. “[A] county
board of education, unlike the school district which it manages, is not a body
corporate and does not have the capacity to sue or be sued.” Cook v. Colquitt
Cnty Bd. of Educ., 412 S.E.2d 828, 841 (Ga. 1992). “The only exception to this
rule . . . is where the legislature creates a school board by an act which gives
that board the capacity to sue or be sued.” Id. There is no allegation that the
Cobb County School Board falls within this exception. Thus, Plaintiff cannot
state a plausible claim for relief against the Board and his proposed amendment
is futile. Accordingly, Plaintiff’s Second Motion to Amend  is DENIED
and his First Motion to Amend  is DENIED as moot.
Defendants’ Motion to Dismiss
Motion to Dismiss Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” While this pleading standard does not require “detailed factual
allegations,” mere labels and conclusions or “a formulaic recitation of the
elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In
order to withstand 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.’” Id. (quoting Twombly, 550 U.S. at 570). A complaint is plausible on its
face when the plaintiff pleads factual content necessary for the court to draw the
reasonable inference that the defendant is liable for the conduct alleged. Id.
“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.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273
n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions set
forth in the complaint. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
(11th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. Furthermore, the court does not “accept as
true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at
“The district court generally must convert a motion to dismiss into a
motion for summary judgment if it considers materials outside the complaint.”
D.L. Day v. Taylor, 400 F.3d 1272, 1275-76 (11th Cir. 2005); see also Fed. R.
Civ. P. 12(d). However, documents attached to a complaint are considered part
of the complaint. Fed. R. Civ. P. 10(c). Documents “need not be physically
attached to a pleading to be incorporated by reference into it; if the document’s
contents are alleged in a complaint and no party questions those contents, [the
court] may consider such a document,” provided it is central to the plaintiff’s
claim. D.L. Day, 400 F.3d at 1276. At the motion to dismiss phase, the Court
may also consider “a document attached to a motion to dismiss . . . if the
attached document is (1) central to the plaintiff’s claim and (2) undisputed.” Id.
(citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). “‘Undisputed’
means that the authenticity of the document is not challenged.” Id.
Equal Protection Clause5
The Equal Protection Clause protects an individual’s right to be free from
intentional discrimination by government entities. Under this clause,
government officials must treat similarly situated people alike. Accordingly, to
prevail on his equal protection claim, Plaintiff must show (1) that he was treated
differently from other similarly situated individuals, and (2) that Defendants
unequally applied the law for the purpose of discriminating against him.
Campbell v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006). Defendants
argue, and the Court agrees, that Plaintiff has failed to allege sufficient facts to
satisfy these elements.
The Court acknowledges that Plaintiff’s response brief was filed late.
However, in the interest of resolving Defendants’ motion on the merits and taking into
account Plaintiff’s pro se status, the Court will consider the arguments raised in
As Defendants note, this claim is fashioned in the Complaint as a direct claim
against CCSD based on the Fourteenth Amendment, not as a claim under 42 U.S.C. §
1983. Because Plaintiff cannot assert this cause of action against state officials based
directly on the Constitution, the Court construes the claim as if it were raised under §
1983. See Williams v. Bennett, 689 F.2d 1370, 1390 (11th Cir. 1982) (With § 1983
Congress provided an adequate alternative remedial scheme for recovery against state
officials for alleged violations of the eighth and fourteenth amendments).
The Complaint does not contain any allegation that similarly situated
individuals were treated differently by CCSD. Indeed, the Complaint does not
reference any similarly situated individuals. The Complaint is also devoid of
any allegation of discriminatory intent by CCSD. Plaintiff does allege that
Defendants “arbitrarily and capriciously dismissed him from the job,” but this
conclusory statement is insufficient to support his equal protection claim. Thus,
this claim is DISMISSED.
Intentional Infliction of Emotional Distress
To establish a claim for intentional infliction of emotion distress, Plaintiff
must show: (1) Defendants’ conduct was intentional or reckless, (2)
Defendants’ conduct was extreme and outrageous, (3) a causal connection
between Defendants’ conduct and his emotional distress, and (4) that his
emotional distress was severe. Lockhart v. Marine Mfg. Corp., 635 S.E.2d 405,
407 (Ga. Ct. App. 2006). Defendants argue that Plaintiff has merely repeated
the elements of this cause of action in his Complaint, but has not alleged any
specific facts to support this claim. Again, the Court agrees with Defendants.
“Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements” do not satisfy Rule 8's pleading standard. Iqbal,
556 U.S. at 678. Furthermore, legal conclusions couched as factual allegations
are insufficient to survive a motion to dismiss. Twombly, 550 U.S. at 555.
Plaintiff alleges that as a result of Defendants’ actions, he was “filled with
severe emotional distress and mental duress.” (Compl., [1-1] ¶ 18.) He also
asserts that the “conduct by Defendants is so outrageous that it is not tolerated
by civilized society.” (Id. ¶ 22.) He provides no details or factual support for
these statements. Therefore, Plaintiff has not stated a plausible claim for relief
and this count is DISMISSED.
Defendants and the Court perceive several defects in Plaintiff’s wrongful
termination claim. Notably, Plaintiff has not alleged that he was ever hired by
the CCSD. Instead, he alleges that he was told to report for the paperwork
process and then was told he was “disqualified” for the position because of his
criminal background. Plaintiff does not allege that any employment contract
was executed between the Parties.
In his response brief, Plaintiff states: “prior to being disqualified or not
hired by Defendants, the Human Resources Staff primarily stated that Plaintiff
was hired, but there were some technical difficulties with Plaintiff’s Application
online, specifically the job description code and general information on the
application.” (Pl.’s Resp.,  at 2-3 of 5 (emphasis added).) Next, Plaintiff
asserts that he received an “implied contract” from Defendants. (Id. at 3 of 5.)
In support of this contention, Plaintiff points to two documents: (1) an
Estimated Salary Information Form from the CCSD signed by Kiger on August
7, 2013; and (2) an Authorization to Report to Work signed by a CCSD human
resources representative. ([13-1] at 9-10 of 10.) The Authorization to Report to
Work indicates that Plaintiff was to report on August 13, 2013, but states that
Plaintiff was “not eligible to report to work prior to [that] date.” ([13-1] at 10
According to the Complaint, Plaintiff was told on August 12 that he was
disqualified from the position and based on his own submission, at that time,
Plaintiff was not eligible to report to work with the CCSD. Plaintiff also admits
in his brief that he was disqualified or “not hired” by CCSD. In fact, the crux of
Plaintiff’s suit is that he was not hired by CCSD for “arbitrary and capricious”
reasons. Therefore, Plaintiff has not stated a plausible claim for wrongful
termination and the claim is DISMISSED.
Breach of Covenant of Good Faith and Fair Dealing
As Defendants note, Plaintiff has not alleged a breach of contract claim.
Rather, Plaintiff alleges that Defendants breached the duty of good faith and fair
dealing when they refused to hire him. “Although a duty of good faith and fair
dealing is implied in every contract, this duty is contractual in nature and does
not ordinarily give rise to tort liability.” ServiceMaster Co., L.P. v. Martin, 556
S.E.2d 517, 522 (Ga. Ct. App. 2001). In other words, without an alleged
contract between the Parties or an alleged breach of that contract, Plaintiff’s
claim that Defendants breached this duty cannot stand. See U.S. Faucets, Inc.
v. Home Depot U.S.A., Inc., No. 1:03-CV-1572-WSD, 2006 WL 1518887, at
*5 (N.D. Ga. May 31, 2006) (“[T]he breach of the implied covenant of good
faith and fair dealing cannot be asserted and does not survive independent of a
claim for breach of contract.”). Therefore, again, Plaintiff has failed to allege
sufficient facts to state a claim for relief and the claim is DISMISSED.
Because his substantive claims are without merit, Plaintiff is not entitled
to the compensatory or punitive damages he seeks.
Based on the foregoing, Plaintiff’s First Motion to Amend  is
DENIED as moot, Plaintiff’s Second Motion to Amend  is DENIED, and
Defendants’ Motion to Dismiss  is GRANTED. The Clerk is directed to
close the case.
SO ORDERED, this 20th day of June, 2014.
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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