Haven v. The Board of Trustees of Three Rivers Regional Library System et al

Filing 37

ORDER granting Kean's 23 Motion for Summary Judgment as to Count III, while Counts I and II are dismissed for lack of subject matter jurisdiction. The Clerk is instructed to close the case. Signed by Chief Judge Lisa G. Wood on 11/12/2014. (ca)

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KAREN L. HAVEN,
Plaintiff,
CV 213-090

VS.

THE BOARD OF TRUSTEES OF THREE
RIVERS REGIONAL LIBRARY SYSTEM
and LINDA KEAN,
Defendants.

ORDER

In this employment discrimination action, Plaintiff Karen
Haven brings a federal Age Discrimination in Employment Act
charge, along with a related retaliation charge, against her
former employer, Three Rivers Regional Library System. See Dkt.
no. 1. She also brings a state-law claim of tortious
interference with employment relationships against the Library's
Director, Defendant Linda Kean. See Id. The Library, as an arm
of the State, is protected by Eleventh Amendment sovereign
immunity, resulting in DISMISSAL of Counts I and II for lack of
subject matter jurisdiction. Defendant's Motion for Summary

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Judgment is GRANTED as to Count III against Defendant Kean, who
is immune from suit under the Georgia Tort Claims Act.
FACTUAL BACKGROUND

Plaintiff, a 53-year-old female, began working for the
Three Rivers Regional Library System ("the Library") on August
16, 1999. Dkt. no. 1, 9191 1, 11. The Library is a sub-unit of the
University System of Georgia. Id. at ¶ 2. On June 9, 2011,
Defendant Kean, the Library Director, informed Plaintiff that
she was being laid off due to budget cuts. Id. at 191 12, 14. Two
other librarians, ages 51 and 63, were also laid off that day
for the same purported reason. Id. at ¶91 15-16. Plaintiff
alleges the library retained two younger, less skilled
librarians in lieu of the more "senior" librarians. Id. at
191 17-18. After losing her job, Plaintiff filed a Charge of age

discrimination with the United States Equal Employment
Opportunity Commission ("EEOC") on July 18, 2011. Id. at ¶ 12.
Soon after her termination, Plaintiff began searching for a
similar librarian position. Id. at ¶ 21. In August of 2011, she
applied for a Data Specialist position with the State Library of
North Carolina and was called back for an interview. Id. at
191 22-23. Plaintiff claims she was offered a position by Grant

Pair, North Carolina's Program Director. Id. at ¶ 24. However,
Pair rescinded this offer. Id. at ¶ 30.

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Plaintiff later learned that, between the offer and
withdrawal, Pair had contacted Defendant Kean to discuss
Plaintiff's employment at the Library. Id. at 9191 25-30. Pair
made an Open Records Request for copies of Plaintiff's personnel
file, in which Defendant Kean included a copy of Plaintiff's
EEOC Charge against the Library and notes she had prepared after
Plaintiff's termination. Id. at 191 25, 27-28. Plaintiff claims
that these notes disparaged her performance during her tenure at
the library and that the notes and the EEOC Charge should not
have been disclosed to prospective employers. Id. at 191 28-29.
On February 24, 2012, Plaintiff amended her EEOC Charge to
add a claim of retaliation. Id. at ¶ 10. She commenced this
action against the Library and Defendant Kean on July 10, 2013.
PROCEDURAL BACKGROUND

In her initial Complaint, Plaintiff brought three claims:
Count I alleges the Library violated the Age Discrimination in
Employment Act ("ADEA") by terminating Plaintiff while retaining
younger, less skilled employees. Id. at 191 31-33. Count II
alleges the Library retaliated against Plaintiff for filing an
EEOC Charge by disclosing disparaging information to a potential
employer. Id. at 191 34-38. Count III alleges Defendant Kean
tortiously interfered with Plaintiff's employment relationships
by sending Plaintiff's employment file to Pair with the specific
intent of harming Plaintiff. Id. at ¶91 39-46. In her prayer for
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relief, Plaintiff seeks from the Library damages relating to its
violation of the ADEA, back pay, front pay, and attorney's fees.
Id. at p. 12. From Defendant Kean, Plaintiff seeks compensatory
damages for the emotional pain she endured from losing the
opportunity to work for the library in North Carolina, punitive
damages for Defendant Kean's deliberate and malicious intent to
cause Plaintiff harm, and attorney's fees. Id. at p. 13.
At the close of discovery, Defendants filed the present
Motion for Summary Judgment, asserting certain sovereign
immunity defenses. See Dkt. no. 23-2. These defenses may have
caught Plaintiff off guard, for she sought to amend her
Complaint to address its defects. See Dkt. no. 27. The
Magistrate Judge denied Plaintiff's request. Dkt. no. 36.
Plaintiff did not object to the Magistrate Judge's Order, so
this Court considers Defendant's Motion for Summary Judgment in
light of Plaintiff's original Complaint.
DISCUSSION
I. Standard of Review

Summary judgment is required where "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). A fact is "material" if it "might affect the outcome of
the suit under the governing law." FindWhat Investor Grp. v.
FiridWhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A
dispute over such a fact is "genuine" if the "evidence is such
that a reasonable jury could return a verdict for the nonmoving
party." Id. In making this determination, the court is to view
all of the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in that party's favor.
Johnson v. Booker T. Washinqton Broad. Serv., Inc., 234 F.3d
501, 507 (11th Cir. 2000)
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . To
satisfy this burden, the movant must show the court that there
is an absence of evidence to support the nonmoving party's case.
Id. at 325. If the moving party discharges this burden, the
burden shifts to the nonmovant to go beyond the pleadings and
present affirmative evidence to show that a genuine issue of
fact does exist. Anderson, 477 U.S. at 257.
II. Plaintiff's Claims against the Library

Plaintiff brings age discrimination and retaliation claims
against the Library under the ADEA. The ADEA makes it unlawful
for an employer "to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age." 29 U.S.C.
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§ 623(a) (1). The ADEA also prohibits employers from retaliating
against employees who "opposed any practice made unlawful by
this section . .

•"

§ 623(d) (1). An employee aggrieved by its

employer's discrimination or retaliation "may bring a civil
action in any court of competent jurisdiction" for legal or
equitable relief. § 626(c) (1).
Federal courts generally do not have jurisdiction to hear
citizen or noncitizen suits against states. The Eleventh
Amendment prohibits the "Judicial power of the United States"
from reaching "any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of
another State." U.S. Const. amend. XI. The Supreme Court
interprets this language to also prevent suits against a state
brought by its own citizens. Kimel v. Fla. Bd. Of Regents, 528
U.S. 62, 73 (2000) ("[F]or over a century now, we have made
clear that the Constitution does not provide for federal
jurisdiction over suits against nonconsenting States.") Thus,
the Eleventh Amendment enshrouds states with a shield of
sovereign immunity against suits in federal court by citizens
and noncitizens alike.
The shield of sovereign immunity, though, is not
impenetrable. A state may waive its sovereign immunity, or
congress can abrogate states' sovereign immunity to enforce the
substantive provisions of the Fourteenth Amendment. Stroud v.
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McIntosh, 722 F.3d 1294, 1298 (11th Cir. 2013) (citing Coil.
Say. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527
U.S. 666, 670 (1999)). Furthermore, the doctrine of Ex parte
Young is another fissure in the shield of sovereign immunity,
allowing an individual to sue a state despite the Eleventh
Amendment where the claimant requests the court to grant
"prospective injunctive relief to prevent a continuing violation
of federal law." Green v. Mansour, 474 U.S. 64, 68 (1985)
(citing Ex parte Young, 209 U.S. 123, 155-56 (1908)).
Plaintiff does not contest the fact that the Supreme Court
has declared the ADEA unconstitutional as applied to the states
because Congress did not abrogate the states' sovereign immunity
by enacting the law under section 5 of the Fourteenth Amendment.
Kirnel, 528 U.S. at 91; see also Stroud, 722 F.3d at 1303.
However, Plaintiff does argue that the Ex parte Young doctrine
allows her to bring her suit in this case despite any claim to
sovereign immunity the Library may have as an arm of the state.
Additionally, neither party has briefed the issues surrounding
the Library's assertion of sovereign immunity, including the
effectiveness of that assertion, the appropriateness of framing
it as a defense on the merits, and its impact on this Court's
jurisdiction. The Court will first consider the jurisdictional
issues of the Library's Eleventh Amendment defense, and then it

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will discuss whether the Ex parte Young doctrine allows
Plaintiff to overcome that defense.
a. The Eleventh Amendment and this Court's Jurisdiction

In the Eleventh Circuit, the defense of sovereign immunity
is not merely a defense on the merits. An assertion of Eleventh
Amendment sovereign immunity "essentially challenges a court's
subject matter jurisdiction . . ." Seaborn v. Fla. Dept. of
Corrections, 143 F.3d 1405, 1407 (11th Cir. 1998); see also
Schopler v. Bliss, 903 F.2d 1373, 1378 (11th Cir. 1990) ("The
Eleventh Amendment prohibits federal courts from exercising
subject matter jurisdiction in suits brought against a state by
a citizen of that state.").
However, the jurisdictional bar of the Eleventh Amendment
is the rara avis of jurisdictional issues. While most subject
matter jurisdiction issues cannot be waived by the parties and
should be raised by the court sua sponte (see, e.g., Fed. R. Civ
P. 12(h) (3) ("If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action.")), "the Eleventh Amendment does not automatically
deprive a court of original jurisdiction." McLendon v. Ga. Dept.
of Comm. Health, 261 F.3d 1252, 1257 (11th Cir. 2001); see also
Caoldron v. Ashmus, 523 U.S. 740, 745 n.2 (1998) ("While the
Eleventh Amendment is jurisdictional in the sense that it is a
limitation on the federal court's judicial power, . . . we have
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recognized that it is not coextensive with the limitations on
judicial power in Article III.") . As such, sovereign immunity is
actually a volitional defense that may be waived by the state at
its pleasure, and federal courts are not required to consider
sua sponte whether the Eleventh Amendment strips them of
jurisdiction if the state fails to assert that it does. See
McLendon, 261 F.3d at 1257. Nevertheless, "a state . . . cannot
force a federal court to decide the merits of a claim before
addressing the Eleventh Amendment issue, and [the court] can
raise an Eleventh Amendment issue on [its] own motion." Id. at
1259.
McLendon contemplated a state's strategic holding of the
Eleventh Amendment immunity defense in reserve—Georgia, as
defendant, wanted the court to decide the case on the merits,
but also wanted to preserve the Eleventh Amendment defense if
the court ruled in favor of the plaintiffs. Id. at 1258. The
Eleventh Circuit held that a federal court could entertain this
kind of "conditional" assertion of Eleventh Amendment immunity
at its discretion, and that such discretion could be informed by
the balance of judicial economy in deciding the case on the
merits as opposed to the Eleventh Amendment issues. Id. at 1259.
Thus, while a state may assert or waive the Eleventh Amendment
defense at its pleasure, the Court may likewise accept or

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decline jurisdiction over a claim where the state has waived its
immunity.
The Eleventh Amendment issue presently before the Court is
slightly different than that in McLendon. Here, the Library
asserts its Eleventh Amendment immunity as a defense on the
merits rather than a jurisdictional defense. The problem with
the Library's argument is that Eleventh Amendment immunity, by
its nature, attacks the Court's jurisdiction to reach the
merits. Seaborn, 143 F.3d at 1407. The Court may find that the
Library's Eleventh Amendment immunity strips it of jurisdiction
to hear the case, or it may reach the merits of the Library's
motion for summary judgment, but it cannot do both. The
Library's mischaracterization of the sovereign immunity defense,
then, could potentially lead to the question of whether it
properly raised that defense.
Generally, the Eleventh Amendment is not a defense to be
raised, but one to be waived. "The test to determine if a state
has waived its sovereign immunity is a stringent one." Barnes v.
Zaccari, 669 F.3d 1295, 1308 (11th Cir. 2012) (quoting Coil.
Say. Bank, 527 U.S. at 675). A federal court "will find a waiver
either if the State voluntarily invokes [the court's]
jurisdiction, or else if the State makes a 'clear declaration'
that it intends to submit itself to [the court's] jurisdiction."
Coll. Say. Bank, 527 U.S. at 675-76. Here, the Library made no
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affirmative invocation of the Court's jurisdiction. It simply
failed to invoke its Eleventh Amendment immunity until late in
litigation, and (arguably) invoked that immunity in an improper
manner. Nevertheless, an effective waiver requires some
affirmative assent on the part of the State, and this Court will
not interpret the Library's questionable assertion of immunity
as a waiver by default.
However, even if the Eleventh Circuit's and Supreme Court's
Eleventh Amendment precedents allowed for waiver by default,
this Court would not be bound by such a waiver. As stated in
McLendon, courts in the Eleventh Circuit always retain the right
to consider Eleventh Amendment immunity sua sponte. McLendon,
261 F.3d at 1259. Thus, the Court finds that the Library is
entitled to Eleventh Amendment sovereign immunity (whether it
properly raised that defense or not), and proceeds by examining
whether the Ex parte Young doctrine provides an exception to
that immunity.
b. The Ex parte Young exception to Sovereign Immunity

The doctrine of Ex parte Young allows an individual to sue
a state despite the Eleventh Amendment where the claimant
requests the court to grant "prospective injunctive relief to
prevent a continuing violation of federal law." Green v.
Mansour, 474 U.S. 64, 68 (1985) (citing Ex parte Young, 209 U.S.
123, 155-56 (1908)) . "In determining whether the doctrine of Ex
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parte Young avoids an Eleventh Amendment bar to suit, a court
need only conduct a 'straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and seeks
relief properly characterized as prospective." Verizon Md.
Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002)
(quoting Idaho v. Couer d'Alene Tribe of Idaho, 521 U.S. 261,
296 (1997) (O'Connor, J., joined by Scalia and Thomas, JJ.,
concurring in part and concurring in judgment)); see also Summit
Med. Ass'n v. Pryoer 180 F.3d 1326, 1336 (11th Cir. 1999)
(noting that the doctrine of Ex parte Young only applies to
"ongoing and continuous violations of federal law.")
Here, the Library is uncontestedly an arm of the state.
Nevertheless, Plaintiff argues that the Ex parte Young doctrine
allows her to bring her suit against the Library because she is
seeking prospective relief from an ongoing violation of federal
law. See Dkt. no. 30, pp. 4-7. However, Plaintiff's argument in
support of this proposition is entirely based on her Proposed
Amended Complaint (Dkt. no. 27-1) in which Plaintiff attempts to
remedy the jurisdictional defects of her original complaint. As
mentioned above, the Magistrate Judge denied Plaintiff's motion
to amend her complaint, see Dkt. no. 36, and Plaintiff did not
object to that ruling. Thus, the Court must examine Plaintiff's
original complaint (Dkt. no. 1) to see if it avails itself of
the Ex parte Young doctrine.
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It does not. Plaintiff's complaint frames the Library's
alleged discriminatory termination and retaliation as discreet
conduct that occurred once in the past, and not as "ongoing and
continuous violations of federal law." See Dkt. no. 1, 9191 31-38;
Summit Med. Ass'n, 180 F.3d at 1336. Additionally, Plaintiff's
requested relief is largely retrospective and is thus not the
type of relief Ex parte Young exempts from states' sovereign
immunity.' Ex parte Young, then, will not save Plaintiff's
complaint from the Library's defense of sovereign immunity, and
the Court will DISMISS Counts I and II for lack of subject
matter jurisdiction.
III. Plaintiff's Claims against Defendant Kean

In addition to her two claims against the Library,
Plaintiff brings a tortious interference with employment
relationships charge against Defendant Kean personally for
sending disparaging notes and a copy of Plaintiff's EEOC Charge
to a prospective employer. Dkt. no. 1, 191 8, 39-46. Plaintiff
does not argue that this act was done outside the scope of

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While most of Plaintiff's requested forms of relief against the Library are
retrospective, she also seeks front pay, which could arguably be
characterized as prospective. Defendants cite authority outside of the
Eleventh Circuit to support their argument that front pay does not meet the
Ex Parte Young exception because it is designed to compensate the plaintiff
for a past violation of federal law as opposed to a continuing violation. See
Dkt. no. 23-2, p. 3 n.2 (citing Pechon v. La. Dep't of Health & Hosps., No.
08-0664, 2009 WL 2046766, at *10 (E.D. La. July 14, 2009)). Because
Plaintiff's failure to allege an ongoing violation of federal law in her
complaint is alone sufficient to deny application of the Ex parte Young
doctrine, this Court need not decide whether Plaintiff's request for front
pay is prospective or retrospective.
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Defendant Kean's duties as an employee of the Library, but she
does allege that the interference was intentional and malicious.
When a state official is sued in her official capacity, she
is immune from suit under the state's Eleventh Amendment
sovereign immunity. Jackson v. Ga. Dept. of Transp., 16 F.3d
1573, 1575 (11th Cir. 1994) (citing Kentucky v. Graham, 473 U.S.
159, 169 (1985)). "In contrast, the Eleventh Amendment does not
protect state employees sued in their individual capacity for
employment-related acts." Id. Here, Plaintiff has sued Defendant
Kean "personally for the tort of wrongful interference with
employment relationships under the law of the State of Georgia."
Dkt. no. 1, ¶ 8. Because Plaintiff has sued Defendant Kean
individually rather than in her official capacity, the doctrine
of sovereign immunity does not strip this Court of its subject
matter jurisdiction over Count III of Plaintiff's Complaint, and
the Court proceeds by considering the merits of Plaintiff's
claim. 2

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Georgia Code section 50-21-25 makes the GTCA the "exclusive remedy for any
tort committed by a state officer or employee." § 50-21-25(a). The GTCA
requires courts to substitute the employee's state agency as the named
defendant in a case brought against an employee "for an act or omission for
which the state is liable under this article." § 50-21-25(b). Here, the Court
cannot substitute the Library in place of Defendant Kean for Count III
because "interference with contractual rights" is not included in the State's
waiver of sovereign immunity and thus is not an act or omission for which the
State would be liable. § 50-21-24(7). But even if Plaintiff's claim against
Defendant Kean could have been brought against the State under the GTCA, the
Court would dismiss the claim because (1) Plaintiff failed to give ante litem
notice pursuant to Georgia Code section 50-21-26, and (2) Georgia has not
waived its sovereign immunity for actions filed in federal court, see Ga.
Code Ann. § 50-21-26(b).
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A state-law claim against the state of Georgia or its
employees is governed by the Georgia Tort Claims Act ("GTCA").
See Ga. Code Ann. §§ 50-21-22(5), 50-21-23(a). tinder the GTCA, a
state officer or employee "who commits a tort while acting
within the scope of his or her official duties or employment is
not subject to lawsuit or liability therefor." § 50-21-25(a).
Plaintiff does not contest that Defendant Kean acted within
the scope of her official duties. However, Plaintiff argues that
the Georgia Constitution allows for suits against public
officers individually "if they act with actual malice or with
actual intent to cause injury in the performance of their
official functions." See Dkt. no. 30, p. 16 (citing Ga. Const.
art. I, § II, ¶ IX(d)).
The relevant portion of the Georgia Constitution on which
Plaintiff relies reads:
Except as specifically provided by the General
Assembly in a State Tort Claims Act, all officers and
employees of the state or its departments and agencies
may be subject to suit . . . and may be liable for
injuries and damages if they act with actual malice or
with actual intent to cause injury in the performance
of their official functions. Except as provided in
this subparagraph, officers and employees of the state
or its departments and agencies shall not be subject
to suit or liability, and no judgment shall be entered
against them, for the performance or nonperformance of
their official functions. The provisions of this
subparagraph shall not be waived.
Ga. Const. art. I, § II, ¶ IX(d) (emphasis added). The Georgia
Supreme Court has already considered and unanimously refuted the
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same constitutional argument that Plaintiff makes before this
Court: "Reliance on that constitutional provision [is] misplaced
[when] essential qualifying language in the provision, to wit,
'Except as specifically provided by the General Assembly in a
State Tort Claims Act,' [is] omitted from consideration . .
Ridley v. Johns, 552 S.E.2d 853, 854 (Ga. 2000). The Georgia
General Assembly has "specifically provided" in the GTCA that a
state employee is not personally liable for torts committed
while acting within the scope of her official duties. See Ga.
Code Ann. § 50-21-25. "Since there is no exemption in the
statute for acts motivated by malice or intent to injure, the
presence of such motivation has no effect on the immunity
granted by this statute." Ridley, 552 S.E.2d at 854.
Thus, even assuming Defendant Kean acted maliciously in
forwarding Plaintiff's employment file to a prospective
employer, such malicious intent cannot overcome Defendant Kean's
official immunity under the GTCA. Therefore, Defendant Kean's
motion for summary judgment as to Count III is GRANTED.
CONCLUSION

Defendants in this case are protected from liability either
by the Eleventh Amendment or the GTCA, and Plaintiff has not
presented any disputed issues of material fact that can overcome
these defenses. As such, Defendants' Motion for Summary Judgment
(Dkt. no. 23-2) is GRANTED as to Count III against Defendant
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Kean, while Counts I and II are DISMISSED for lack of subject
matter jurisdiction. The Clerk of Court is instructed to close
the case.
SO ORDERED, this 12TH day of November, 2014.

LISA GODBEY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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