Lee v. Christian et al

Filing 41

ORDER denying 10 , 14 , 27 and 29 Defendants' Motions to Dismiss Plaintiff's Complaint and Amended Complaint. Signed by Chief Judge Lisa G. Wood on 3/30/2015. (csr)

3n the 11niteb Otateis flitvict Court
for the boutbern Maria of georgia
30runoWtA O ibt o ion
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Plaintiff,
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vs.
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HAROLD PAUL CHRISTIAN. individually *
and in his official capacity as County *
Manager of Pierce County, Georgia; CARL *
BOYETTE; TOMMY LOWMAN; TOM *
*
DAVIS; and MATTHEW CARTER,
*
*
Defendants.

DEBORAH LEE.

CV 214-97

ORDER

All of the Defendants, except Harold Christian, have filed
Motions to Dismiss Plaintiff's Original and Amended Complaints.
Dkt. Nos. 10, 14, 27, 29. It is those Motions that are before
the Court presently. Upon due consideration, Defendants'
Motions to Dismiss are DENIED.
I. FACTUAL BACKGROUND

Plaintiff Deborah Lee worked as the Director of the Pierce
County Chamber of Commerce from June of 1999 until February of
2013.' She lives in the City of Blackshear, within Pierce
County, Georgia. Dkt. No. 21, 91 8. Defendants in this case are

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For the purpose of these motions, the Court accepts as true the facts set
forth in the Amended Complaint. Randall v. Scott, 610 F.3d 701, 705 (11th
Cir. 2010).
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Harold Paul Christian, County Manager of Pierce County; Carl
Boyette, County Commissioner of Pierce County; Tommy Lowman,
Better Hometown Manager for the City of Blackshear; Matthew
Carter, Director of the Pierce County Industrial Development
Authority, which receives substantial funding from Pierce
County; and Tom Davis, the Mayor of Blackshear, Georgia, at all
times relevant to the Complaint. Dkt. No. 21 191 10-13, 15.
Plaintiff started working for the Pierce County Chamber of
Commerce in June of 1999. Dkt. No. 21, ¶ 14. Throughout her
employment, Plaintiff "served faithfully as [the Chamber of
Commerce's] Director and performed her duties well[.]" Id.
Defendant Christian became the County Manager of Pierce County
in approximately August of 2011. Id. at ¶ 15. From the time he
began serving in that position, Defendant Christian became a
daily visitor to Plaintiff's offices at the Chamber of Commerce.
Id. at ¶ 16. While visiting, Defendant Christian "was extremely
friendly, helpful and encouraging"; he "often discussed with
[Plaintiff] ways in which the annual financial contribution of
the county to the Chamber of Commerce could be increased." Id.
at 91 17.
Not long after his employ with Pierce County began,
Defendant Christian allegedly began making frequent and
inappropriate, sexually-charged comments to Plaintiff. Id. at ¶

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19. Plaintiff summarizes the nature of those comments in her
Amended Complaint:
Opinion about the provocative nature of [Plaintiff's]
physical shape;
Comments offering [Plaintiff] a higher salary in
exchange for sexual favors;
Ongoing requests, complete with sexually-charged
itinerary, that he and [Plaintiff] take out-of-town
trips together at taxpayer expense;
Comments reflecting an obsession with [Plaintiff's]
manner of dressing, specifically characterizing her
dress as "dressing like a hooker" and wearing
"stripper shoes" to work;
Promises to include the Chamber of Commerce in the
Pierce County employment benefits program in exchange
for sexual favors; and
Promises to increase, and promises not to decrease,
Pierce County's monthly contribution to the Chamber of
Commerce in exchange for sexual favors.
Id. at ¶ 19. Plaintiff became fearful of being alone with
Defendant Christian and started to take steps to avoid that
possibility. Plaintiff would, for example, lock her office door
when she thought Defendant Christian might visit so it would
appear that she was not there. Id. at ¶ 20.
According to Plaintiff, Defendant Christian would go to the
local gym when Plaintiff was there, during lunch or in the
afternoon. Id. at ¶ 21. One day in June of 2012, while
Plaintiff was at the gym during lunch, "Defendant Christian
forcibly and against [Plaintiff's]

will,

grabbed and turned

[Plaintiff's] body and attempted to press his lips against her
lips." Id. Plaintiff quickly turned her head so that the

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attempted kiss landed on her cheek. Plaintiff states that she
had to "forcibly detach herself from Defendant Christian." Id.
Just after the encounter, Defendant Christian blew Plaintiff a
kiss as he left the gym. Id.
The next day, Defendant Christian went to the Chamber of
Commerce and spoke with Plaintiff. Defendant Christian
allegedly said that Plaintiff was a "nice looking woman", which
was "why men would hit on [her]", and this accounted for his
conduct the previous day at the gym—not "sexual harassment."
Id. at ¶ 22. Defendant Carter, who shared a small office with
Plaintiff, was present when Defendant Christian made these
comments, and, according to Plaintiff, "remarked" on Defendant
Christian's comments. Id.
Plaintiff attests that she grew fearful of further
inappropriate and violent conduct by Defendant Christian. She
started taking more extreme steps to avoid Defendant Christian,
such as "scheduling avoidance" of him, disassociating from him
at meetings, and continuing to lock the office door when she was
there alone. Id. at ¶ 23. Because Defendant Carter shared
office space with Plaintiff, he was sometimes inconvenienced by
the locked door. Defendant Carter expressed that he knew why
Plaintiff was locking the door, and that was "because she feared
Defendant Christian as a result of his sexually-charged conduct
and interest in her." Id. at ¶ 24.

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Plaintiff alleges that Defendant Christian enlisted the
help of the other Defendants in a conspiracy to deprive her of
her employment with the Chamber of Commerce. Id. at ¶ 25.
According to Plaintiff, all Defendants knew about Defendant
Christian's sexually-charged conduct towards and interest in
Plaintiff; they also knew that Plaintiff rejected that conduct
and interest. Id. at ¶ 26. Plaintiff contends that Defendants
further knew that Defendant Christian sought to have Plaintiff's
employment terminated because she rejected his advances. Id. at
91 27.
As factual support for the existence of the conspiracy,
Plaintiff contends that, after the encounter between Plaintiff
and Defendant Christian at the gym, all of the individual
Defendants attended multiple meetings held for the purpose of
having Plaintiff removed from her position of employment.
Defendants allegedly discussed their reasons and strategies for
achieving that purpose. Id. at ¶ 28. After one of these
meetings, Defendant Carter returned to the shared office and
told Plaintiff, "'[T]hey are going to squeeze you out,' in part
'by cutting the funding.'" Id. at ¶ 30. Defendant Carter also
told Plaintiff, "without any sympathy", that she needed "to take
a long hard look at things[.]" Id. at ¶ 31. Plaintiff contends
that Defendant Carter assumed he would be chosen to replace her
and offered to make her his "assistant or secretary", which

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Plaintiff characterizes as a "more traditional female role[.]"
Id. Plaintiff asserts that Defendants Davis and Christian,
discussing Plaintiff, told her employer that "women don't need
to be going on a trip to Atlanta with men and conducting
business." Id. at ¶ 29. Defendant Carter told Plaintiff's
husband that he agreed with Defendants Christian and Davis that
women did not need to be going on trips to Atlanta with men and
conducting business. To Plaintiff's husband, Defendant Carter
also said, "[Y]ou need to talk to Deborah about stepping down;
she's making it hard on herself." Id. at ¶ 32.
To implement the alleged conspiracy, Defendants attempted
to eliminate funding for the Chamber of Commerce in the County
budget if Plaintiff was not discharged from her employment. Id.
at ¶ 33. Defendants allegedly spoke with one or more Board
members of the Chamber of Commerce, who hired and could fire
Plaintiff, and threatened to eliminate continued funding for the
Chamber of Commerce, from Pierce County or the City of
Blackshear, if the Chamber of Commerce did not discharge
Plaintiff. Id. at ¶ 34. According to Plaintiff, these threats
were made in order to pressure Plaintiff's employer to terminate
her employment. Id. at ¶ 38. Decreased funding from the County
and City would decrease the effectiveness of the Chamber of
Commerce and of Plaintiff's efforts to promote business in the
community. Id. at ¶ 37.

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When speaking with Chamber of Commerce Board members, "for
the stated purpose of having [Plaintiff's] employment
terminated," Defendants allegedly criticized Plaintiff by, for
example, describing her clothing as the type worn by a stripper.
Id. at ¶ 39. Defendants offered the names of male candidates
who could replace Plaintiff as the Director of the Chamber of
Commerce. Id. at ¶ 40. One or more Defendants proposed to the
Board members that Defendant Carter should replace Plaintiff.
Id. at 91 41. Defendants said something along the lines of,
"[I]t would make it a lot easier on [Plaintiff] if she would
resign [sic] her position", and she "should step down and let
[Defendant Carter] be in control." Id. at ¶ 42. Plaintiff
alleges that the Defendants also suggested that Plaintiff should
take on a more traditional female role as Defendant Carter's
assistant or secretary. Id. at ¶ 43.
Defendant Christian, "without legislative authority from
the Board of Commissioners of Pierce County," actually did
eliminate the County's monthly funding to the Chamber of
Commerce. Id. at ¶ 35. Defendant Davis eliminated the City of
Blackshear's monthly funding to the Chamber of Commerce as well.
Id. at ¶ 36. Plaintiff alleges that Defendants took substantial
and coordinated steps towards their goal of having Plaintiff
removed from her position because of her gender. Id. at ¶ 44.
Plaintiff describes that,
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"[a]fter months of suffering fear,
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harassment and threats to her job and the financial viability of
her employer, [she] did what any other reasonable person would
do under the circumstances" and left her job with the Chamber of
Commerce. Id. at ¶ 57.
II.

PROCEDURAL BACKGROUND

Plaintiff asserts claims of sexual battery and assault
against Defendant Christian (Counts I and II) . She brings
claims of conspiracy to violate civil rights under 42 U.S.C. §
1985(3) and tortious interference with employment contract
against all defendants (Counts IV and III) . She also seeks
punitive damages and litigation expenses against all defendants
(Counts V and VI). Her claims against Defendant Christian are
brought against him in both his official and individual
capacities; her claims against the other Defendants are against
them in their individual capacities only. Dkt. No. 35,

pp. 4-5.

Plaintiff is no longer pursuing claims against Pierce
County, Georgia. Id.
III.

LEGAL STANDARD

When ruling on a motion to dismiss brought pursuant to Rule
12(b) (6), a district court must accept as true the facts as set
forth in the complaint and draw all reasonable inferences in the
plaintiff's favor. Randall v. Scott, 610 F.3d 701, 705 (11th
Cir. 2010). Although a complaint need not contain detailed
factual allegations, it must contain sufficient factual material
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"to raise a right to relief above the speculative level." Bell
Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007) . At a minimum,
a complaint should "contain either direct or inferential
allegations respecting all the material elements necessary to
sustain a recovery under some viable legal theory." Fin. Sec.
Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th
Cir. 2007) (per curiam) (quoting Roe v. Aware Woman Ctr. for
Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)).
IV. ANALYSIS
a. Federal Claims

The statute under which Plaintiff asserts her federal
claims provides,
If two or more persons in any State or Territory
conspire . . . for the purpose of depriving, either
directly or indirectly, any person or class of persons
of the equal protection of the laws, or of equal
privileges and immunities under the laws; . . . in any
case of conspiracy set forth in this section, if one
or more persons engaged therein do, or cause to be
done, any act in furtherance of the object of such
conspiracy, whereby another is injured in his person
or property, or deprived of having and exercising any
right or privilege of a citizen of the United States,
the party so injured or deprived may have an action
for the recovery of damages occasioned by such injury
or deprivation, against any one or more of the
conspirators.
42 U.S.C. § 1985 (3)

("s

1985(3) - ).

The elements of a civil rights conspiracy cause of action
under § 1985(3) are, "(1) a conspiracy; (2) for the purpose of
depriving, either directly or indirectly, any person or class of
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persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either
injured in his person or property or deprived of any right or
privilege of a citizen of the United States." United Bhd. of
Carpenters and Joiners of Am., Local 610, AFL-CIO v. Scott, 463
U.S. 825, 828-29 (1983). As part of the second element, there
must be "some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators'
action." Id. (quoting Griffin v. Breckenridge, 403 U.S. 88, 102
(1971)).

"[W]omen are a 'class of persons' within the meaning

of § 1985(3), and therefore are protected by that provision from
conspiracies against them motivated by sex-based animus." Lyes
v. City of Riviera Beach, Fla., 166 F.3d 1332, 1339 (11th Cir.
1999) (en banc)
Defendants Boyette, Lowman, Davis, and Carter all move to
dismiss Plaintiff's complaint based on their contention that she
has failed to state a claim in her § 1985(3) cause of action.
Defendants Boyette, Lowman, and Davis first contend that
Plaintiff has failed to sufficiently allege that there was a
conspiracy against Plaintiff that was based on her gender and
that acts were taken in furtherance of the conspiracy. They
contend that Plaintiff's factual allegations were conclusory,
and the Amended Complaint contains no factual allegation that
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Defendants entered into an agreement to have Plaintiff
terminated because of her female gender. Defendant Carter
contends that Plaintiff's conspiracy allegations lack the
required specificity and argues that parallel conduct is not
sufficient to make out a claim under § 1985(3).
Plaintiff's Amended Complaint, taken as a whole,
sufficiently alleges that there was an agreement by the
Defendants to have Plaintiff removed from her employment and
that the agreement was motivated by invidiously discriminatory
animus against Plaintiff based on her female gender. Plaintiff
alleged that all of the Defendants knew why Defendant Christian
sought to have her employment terminated, which was because she
rejected his sexually-charged conduct and interest. Plaintiff
described multiple meetings at which Defendants "conspired for
the purpose of having [Plaintiff] removed from her position of
employment with the Chamber of Commerce" and where they
"discussed the reasons underlying their conspiracy and the
strategies for accomplishing their purpose." Dkt. No. 21, ¶ 28.
Such a general statement about the agreement and purpose of
the conspiracy standing alone might be considered conclusory,
but additional facts alleged throughout the Amended Complaint
create plausible grounds to infer that Defendants agreed to
bring about Plaintiff's termination because of her female
gender. The fact of the agreement itself is supported by the

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allegation that Defendants met multiple times to discuss their
plan to have Plaintiff removed from her position. Plaintiff's
description of Carter's comment to her after one such meeting
("they are going to squeeze you out" by "cutting the funding")
further supports the allegation that Defendants entered the
agreement alleged by Plaintiff. Dkt. No. 21, ¶ 30. The fact
that funding actually was cut additionally supports Plaintiff's
allegation of an agreement to injure her, the sole employee of
the Chamber of Commerce. Defendants' conversations with Board
members of the Chamber of Commerce and actions in cutting
funding for the Chamber of Commerce were plausible substantial
steps in furtherance of the alleged conspiracy.
Defendants take issue with the fact that there is no
specific allegation that they discussed Plaintiff's gender or
agreed to discriminate against Plaintiff because of her gender.
Plaintiff alleged that, "Defendants took substantial and
coordinated steps toward their common goal of having Mrs. Lee
removed from her position of employment . . . because of her
gender, female." Dkt. No. 21, ¶ 44. Again, standing alone this
might be considered conclusory, but there is enough factual
matter alleged throughout the Amended Complaint to find that
this allegation is plausible.
Plaintiff alleges that each Defendant approached one or
more members of the Board of the Chamber of Commerce and
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threatened to eliminate funding if they did not discharge
Plaintiff. In those discussions, Defendants allegedly made
sexually-charged criticisms of Plaintiff's clothing, proposed
male candidates who could take Plaintiff's position, and
suggested that, if Defendant Carter replaced Plaintiff,
Plaintiff could be his secretary or assistant. In discussing
Plaintiff with the Board, Defendants Davis and Christian
allegedly stated, "[W]omen don't need to be going on a trip to
Atlanta with men and conducting business." All of those facts,
accepted as true and taken in conjunction with the allegation
that Defendants agreed to work towards having Plaintiff removed,
in part, because she rejected Defendant Christian's sexual
advances, create a reasonable inference that Defendants agreed
to have Plaintiff removed from her position because of her
female gender.
While parallel conduct, without more, does not suggest
conspiracy, Tworably, 550 U.S. at 556-57, Plaintiff has provided
"further factual enhancement" that "nudged [her] claims across
the line from conceivable to plausible[.]" Id. at 557, 570.
Defendant Carter asserts that Plaintiff's allegations merely
show that he was with the wrong people at the wrong time.
Defendant Carter indicates that Plaintiff does not say how
Defendant Carter "remarked" on Defendant Christian's comments,

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and he even attempted to warn Plaintiff that the other
Defendants were going to squeeze her out.
It does not matter that Plaintiff's Amended Complaint did
not characterize how Defendant Carter remarked on Defendant
Christian's comments, because this is merely circumstantial
evidence to support Plaintiff's allegation that Defendant Carter
knew about Defendant Christian's sexually-charged conduct
towards her. That Defendant Carter used the word "they" when he
told Plaintiff that the other Defendants were trying to "squeeze
[her] out" does not render it less plausible that he was a
participant in the scheme, particularly in light of the other
allegations regarding him. Plaintiff's allegations create the
reasonable inference that Defendant Carter bullied her into
stepping down by telling her she needed "to take a long hard
look at things" and by offering her a position as his secretary
or assistant. Plaintiff alleges that Defendant Carter told her
husband that he agreed with Defendants Christian and Davis that
"women don't need to be going on a trip to Atlanta with men and
conducting business" and stated, "you need to talk to Deborah
about stepping down; she's making it hard on herself." At this
stage in the dispute, the fact that Plaintiff does not say how a
trip to Atlanta was important to her job is not dispositive.
Taking as true that Defendant Carter made these comments,
Plaintiff has plausibly alleged that Defendant Carter
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participated in the efforts to have Plaintiff removed from her
position and did so for an invidious, discriminatory reason:
because she is a woman. Plaintiff's allegations of parallel
conduct have been "placed in a context that raises a suggestion
of a preceding agreement[,]" including by Defendant Carter. Id.
at 557.
Defendants Boyette, Davis, Lowman, and Carter all argue
that Plaintiff's failure to identify a similarly situated
comparator is fatal to her § 1985(3) claim. Dkt. No. 27, pp.
15-16; Dkt. No. 29-1, pp. 6-7. Defendants cite several cases in
support of this argument. See Rice-Lamar v. City of Ft.
Lauderdale, Fla. 232 F.3d 836, 843-44 (11th Cir. 2000)
(affirming summary judgment on all claims, including § 1985 (3)
claim, where plaintiff did not present evidence that other
insubordinate employees were treated more favorably); Williams
v. Ala. Dep't of Corrs., No. 2:13-CV-606-WKW, 2014 WL 2968457,
at *8 (M.D. Ala. July 2, 2014) (granting summary judgment on §
1985(3) claim because it was abandoned and because plaintiff
failed to present comparator evidence); Stewart v. Fla. Dep't of
Educ. & Vocational Rehab. Div., No. 5:09cv285/RS/MD, 2010 WL
3119790, at *2 (N.D. Fla. Aug. 5, 2010) (advising pro se
plaintiff to identify comparators to support his equal
protection and § 1985(3) claims); Newsome v. Lee Cnty., Ala.,
431 F. Supp. 2d 1189, 1200 (M.D. Ala. 2006) (dismissing §
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1985(3) claim based on insufficient evidence of discriminatory
animus)
In Rice-Lamar, the Eleventh Circuit Court of Appeals did
not analyze the plaintiff's § 1985(3) claim after deciding that
her discrimination claims under other statutes merited summary
judgment. As part of the court's determination that the
plaintiff had not presented any evidence that the defendant's
proffered reason for firing her was pretextual, the court noted
that the plaintiff failed to present comparator evidence, but it
did not express that this was a requirement for stating a §
1985(3) claim. 232 F.3d 836, 843-44, n.13 ("Our disposition of
Rice-Lamar's discrimination claims obviates the need for us to
address her conspiracy claim under 42 U.S.C. § 1985(3).").
Stewart and Newsome both involved plaintiffs making equal
protection claims in addition to their § 1985(3) claims, and
Williams involved a plaintiff making a Title VII claim in
addition to his § 1985(3) claim. Their discussions of the
plaintiffs' § 1985(3) claims were tied to their analyses of the
equal protection and Title VII discrimination claims. In the
Newsome court's equal protection analysis, that court suggested
that direct evidence of gender animosity might have saved the
plaintiff's claims, even in the absence of comparators. 431 F.
Supp. 2d at 1201 ("Newsome's allegations here do not provide the
necessary comparators to furnish discriminatory intent in the
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absence of direct evidence of gender animosity and consequently
cannot survive the Defendants' motion") . The Williams court's
analysis of the plaintiff's Title VII claim made a similar
acknowledgement: "If a plaintiff fails to show the existence of
a similarly situated employee, summary judgment is appropriate
where no other evidence of discrimination is present."

2014 WL

2968457, at *4 (quoting Holifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997)) (emphasis added). These cases suggest that it
is at least possible to establish the discriminatory intent
required for a § 1985(3) claim without pointing to a comparator.
The Stewart court does not describe a way in which a
plaintiff could make out an equal protection claim without
providing a comparator. Rather, it stated that '"[i]n order to
state an equal protection claim, a plaintiff must prove that he
was discriminated against by establishing that other similarly
situated individuals outside of his protected class were treated
more favorably." 2010 WL 3119790, at *2 (citations omitted).
But this case alone does not establish that a comparator is
always needed to state a claim under § 1985(3).
For a § 1985(3) cause of action, the conduct of the
defendants must have violated some law which protects the
plaintiff, apart from § 1985(3) itself. McLellan v. Miss. Power

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& Light Co., 545 F.2d 919, 925 (5th Cir. 1977) •2 "Put more
simply, there can only be a deprivation of the rights of a
plaintiff when the action of the defendants is otherwise
illegal." Id.; see also United Bhd., 463 U.S. at 833 (Section
1985(3) "provides no substantial rights itself" and "the rights,
privileges, and immunities that § 1985(3) vindicates must be
found elsewhere") (citations omitted) . This does not
necessarily mean that every plaintiff asserting a § 1985(3)
claim must prove a violation of the Equal Protection clause of
the Constitution. While discussing private civil rights
conspiracies, the Fifth Circuit described,

"[t]he only way,

therefore, in which one private person can deprive another of
the equal protection of the laws is by the commission of some
offence against the laws which protect the rights of persons, as
by theft, burglary, arson, libel, assault, or murder."
McLellan, 545 F.2d at 945. In other words, even a conspiracy to
commit a violation of state law could be the basis for a §
1985(3) conspiracy. The requirement that the plaintiff show
defendants acted with invidiously discriminatory purpose
prevents § 1985(3) from becoming a general federal tort law.
Griffin, 403 U.S. at 102 ("The constitutional shoals that would
lie in the path of interpreting § 1985(3) as a general federal
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc)
the Eleventh Circuit adopted as binding precedent all decisions of the
'
former Fifth Circuit handed down prior to October 1, 1981.

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tort law can be avoided by giving full effect to the
congressional purpose—by requiring, as an element of the cause
of action, the kind of invidiously discriminatory motivation
stressed by the sponsors of the limiting amendment." (internal
citations omitted))
Against this background, the Plaintiff is not, at this
stage, required to identify a comparator. See Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 511-12 (2002) ("It thus seems
incongruous to require a plaintiff, in order to survive a motion
to dismiss, to plead more facts than he may ultimately need to
prove to succeed on the merits if direct evidence of
discrimination is discovered. Moreover, the precise
requirements of a prima facie case can vary depending on the
context and were never intended to be rigid, mechanized, or
ritualistic." (internal quotations and citations omitted)).
Though the circumstances of Plaintiff's case are unique, and
this is not an employment discrimination case, the second
element of the prima facie case for § 1985(3) requires that
Plaintiff show discriminatory intent, as is required in the
employment discrimination context, and her case has many
parallels to that context. The Eleventh Circuit has found that
the McDonnell Douglas burden shifting framework, including its
comparator requirement, is not the only way for a plaintiff to
survive summary judgment in an employment discrimination case.
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Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.
2011) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)). A plaintiff can also survive summary judgment by
presenting enough circumstantial evidence to create a triable
issue of fact regarding discriminatory intent. Such a triable
issue of fact exists if the record "presents 'a convincing
mosaic of circumstantial evidence that would allow a jury to
infer intentional discrimination by the decisionmaker.'" Id.
(citing Silverman v. Bd. of Educ., 637 F.3d 729, 734 (7th Cir.
2011)). At the motion to dismiss stage, Plaintiff has alleged a
convincing mosaic of circumstantial evidence, and some of her
allegations might even be found to constitute direct evidence of
discrimination if further developed in discovery. See Damon v.
Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358-59 (11th
Cir. 1999) (describing direct evidence as that which indicates
"the complained-of employment decision was motivated by the
decision-maker's ageism."). Another reason to not require a
comparator in this case is that Plaintiff is the only person who
works for the Chamber of Commerce. See Rioux v. City of
Atlanta, Ga., 520 F.3d 1269, 1277 (11th Cir. 2008) (considering
comparator evidence in examination of pretext rather than as
element of prima facie case, because "it is not always possible
for high ranking employees to find suitable comparators."
(citing Holifield, 115 F.3d at 1563)). Finally, the elements of
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a § 1985(3) cause of action do not clearly require a comparator.
The cause of action requires a showing that defendants were
motivated by invidiously discriminatory animus, which Plaintiff
has alleged by presenting circumstantial evidence aside from
comparator evidence.
b. State Law Claims

Defendants Boyette, Davis, Lowman, and Carter contend that
Plaintiff's state law claims against them are barred by the
doctrine of official immunity.
According to the Georgia Constitution, "state officers and
employees and those of its departments and agencies are subject
to suit only when they negligently perform or fail to perform
their 'ministerial functions' or when they act with actual
malice or intent to cause injury in the performance of their
'official functions.'" Gilbert y. Richardson, 452 S.E.2d 476,
483 (Ga. 1994) (citing Ga. Const., Art. I, § 2, ¶ IX(d)).
"Actual malice" is distinguishable from both "malice", which is
defined as conduct involving reckless disregard for the rights
The Court recognizes the Eleventh Circuit cases stating that the preliminary
step in the equal protection analysis (that is, whether there has been an
Equal Protection clause violation) is the designation of comparators. See,
e.g., Rodriguez v. Lamer, 60 F.3d 745, 749 (11th Cir. 1995). However,
considering the actual prima facie elements of the § 1985(3) cause of action,
and noting that no Eleventh Circuit case has stated that a comparator is
required in a § 1985(3) suit, this case lends itself more easily to a
discrimination analysis than an equal protection analysis, and the Court
finds the circumstantial evidence that Plaintiff has alleged sufficient for
Plaintiff's § 1985(3) claim to survive the motions to dismiss. Going
forward, Plaintiff will have to show what law protecting her, independent of
§ 1985(3), Defendants conspired to violate. See McLellan, 545 F.2d at 92526.
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of others, and "implied malice", which involves conduct
exhibiting a reckless disregard for human life. Merrow v.
Hawkins, 467 S.E.2d 336, 338 (Ga. 1996) . Actual malice requires
a deliberate intention to do wrong. Id. at 337. The intent
necessary for a showing of actual malice "must be the intent to
cause the harm suffered by the plaintiffs." Murphy v. Bajjani,
647 S.E.2d 54, 60 (Ga. 2007).
To the extent that Defendants were acting within the scope
of their employment when they engaged in the conduct at issue in
this suit, and assuming—as Defendants contend—that Defendants
were performing discretionary functions, Plaintiff has
sufficiently alleged that Defendants acted with actual malice.
Plaintiff alleged that
Defendants acted purposely, and with malice,
corruption and the intent to injure, when they
conspired to have [Plaintiff's] employment terminated
by undermining her dignity and professional reputation
with false, sexually charged ridicule to her employer
and others, and by threatening her employer with
withdrawal of financial support if her employment was
not terminated.
Dkt. No. 21, ¶ 56. Plaintiff pleaded numerous facts in support
of these allegations, and the allegations are therefore not
conclusory. Assuming the truth of Plaintiff's allegations, it
is plausible that Defendants acted with intent to cause the harm
suffered by Plaintiff each time they met and discussed squeezing
Plaintiff out or made comments aimed at bringing about an end to

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Plaintiff's employment to Plaintiff, the Board members of the
Chamber of Commerce, or Plaintiff's husband. Official immunity,
therefore, will not bar Plaintiff's state law claims at this
stage.
Defendants Boyette, Davis, and Lowman make two additional
arguments. The first is that Plaintiff may not bring an action
for tortious interference with her employment contract because
she resigned as opposed to being fired. The second is that
Defendants were not "strangers" to Plaintiff's employment
contract and were therefore privileged to interfere with it.
Dkt. No. 29-1, pp. 12-13.
The elements of a claim for tortious interference are
(1) improper action or wrongful conduct by the
defendant without privilege; (2) the defendant acted
purposely and with malice with the intent to injure;
(3) the defendant induced a breach of contractual
obligations or caused a party or third parties to
discontinue or fail to enter into an anticipated
business relationship with the plaintiff; and (4) the
defendant's tortious conduct proximately caused damage
to the plaintiff.
Tidikis v. Network for Med. Commc'ns Research, LLC, 619 S.E.2d
481, 486 (Ga. Ct. App. 2005) (citations omitted).

"[In order

for a defendant to be liable for tortious interference with
contractual relations, the defendant must be a stranger to both
the contract and the business relationship giving rise to and
underpinning the contract." Atlanta Market Center Mgmt., Co. v.
McLane, 503 S.E.2d 278, 283 (Ga. 1998) (emphasis in original)

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(citations omitted) (endorsing "Court of Appeals' line of cases
which, in effect reduce the number of entities against which a
claim of tortious interference with contract may be
maintained.")
"In Georgia one cannot state a claim for wrongful
termination when it is undisputed that the employment was
terminated incident to resignation." Clark v. Chick-Fil-A
Inc., 449 S.E.2d 313, 315 (Ga. Ct. App. 1994). This applies
"even if the employee resigned under pressure and at the
employer's request and even if the employee knew that
termination action would be taken in the absence of
resignation." Id. (citations omitted) . While the Georgia
Supreme Court has acknowledged that "an employer's immunity from
liability for discharge of an at-will employee 'may not apply to
discharge for a reason that is impermissible on grounds of
public policy'", the "Georgia courts have refused to acknowledge
any exceptions not encompassed by O.C.G.A. § 34-7-1 [the at-will
employment statute], and in the absence of any express statutory
provision for such a civil remedy [declined] to create
judicially such a remedy." Jellico v. Effingham Cnty., 471
S.E.2d 36, 37-38 (Ga. Ct. App. 1996) (citing A.L. Williams &
Assoc. v. Faircloth, 386 S.E.2d 151, 154, n.4. (Ga. 1989)
(citations omitted)); see also Borden v. Johnson, 395 S.E.2d 628
(Ga. Ct. App. 1990) (finding no legislative public policy
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exception to at-will employment doctrine when at-will employee's
employment is allegedly terminated because of gender)
Plaintiff contends that she was constructively discharged
and that her case is different from those cited by Defendants
because her suit is against interloping third parties rather
than against her employer. Plaintiff alleged that "[a]fter
months of suffering fear, harassment and threats to her job and
the financial viability of her employer, [Plaintiff] did what
any other reasonable person would do under the circumstances,
and left her employment with the Pierce County Chamber of
Commerce." Dkt. No. 21, ¶ 57.
It is true that the cases Defendants cite involve wrongful
termination suits against the plaintiffs' former employers
rather than tortious interference claims against parties outside
the employment relationship. The question for the court is thus
whether Plaintiff has adequately alleged that Defendants
"induced a breach of contractual obligations or caused a party
or third party to discontinue or fail to enter into an
anticipated business relationship with the plaintiff", in light
of the fact that she resigned as opposed to being fired.
Tidikis, 619 S.E.2d at 486. Plaintiff has alleged that
Defendants caused the Chamber of Commerce to discontinue an
anticipated business relationship with the plaintiff. Even
though Plaintiff resigned, the Chamber of Commerce was caused to
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discontinue its anticipated business relationship with Plaintiff
pursuant to her resignation, which was brought about by
Defendants' alleged conduct. Additionally, Defendants have not
pointed to cases finding that constructive discharge would not
apply in the tortious interference context as opposed to the
wrongful termination context. Thus, Plaintiff's tortious
interference claim does not fail at the motion to dismiss stage.
Defendants next argue that because their employers, the
City of Blackshear and Pierce County, provided financial support
to the Chamber of Commerce, they were privileged to interfere
with Plaintiff's employment contract. Plaintiff responds by
arguing that, while the City of Blackshear and Pierce County
might have a business relationship with the Chamber of Commerce
sufficient to create a privilege to interfere in her employment
contract, she has only sued Defendants in their individual
capacities. 4 Moreover, Plaintiff asserts that discovery will
reveal the extent to which Defendants were acting within our
outside the scope of their employment.
In support of her argument, Plaintiff cites the case of
Johnson v. Rogers, 448 S.E.2d 710 (Ga. Ct. App. 1994), in which
the Georgia Court of Appeals noted, in reference the plaintiff's
tortious interference claims, that "each claim against a
defendant averred to have been acting in his or her official
Plaintiff is still suing Defendant Christian in his official capacity.
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capacity is not a claim against a stranger to the contract;
defendants, to the extent of acting within their official
capacities, were not intermeddlers acting both improperly and
without privilege." Id. at 712. This case was cited with
approval by the Georgia Supreme Court in Atlanta Market Center,
the case in which that court expressed its agreement with cases
limiting the scope of tortious interference suits and
elaborating on the stranger doctrine. 503 S.E.2d at 283.
Johnson suggests that Defendants, acting in their individual
capacities, could be deemed intermeddlers acting improperly and
without privilege. 448 S.E.2d at 712. Moreover, as Plaintiff
points out, the Amended Complaint makes no reference to the
entities on whose behalf Defendants were allegedly acting.
Additionally, the court in Atlanta Market Center, when
describing cases that rightly found the alleged interferers were
privileged to interfere, twice noted that the alleged acts of
interference were done within the scope of the interferer's
official duties. 503 S.E.2d at 282-83. For example, Atlanta
Market Center described that "it has been held that the alleged
interferer is not a stranger to the contract . . . where the
alleged interferer was the agent for one of the parties to the
contract . . . and all of the purported acts of interference
were done within the scope of the interferer's duties as agent."
Id. (citing Jet Air, Inc. v. National Union Fire Ins. Co., 375
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S.E.2d 873, 877 (Ga. Ct. App. 1988)). Another parenthetical
stated, "where the alleged interferer was the corporate
president of one of the contracting parties and all his
purported acts of interference were within the scope of his
corporate duties, he was not a stranger to the corporation's
contract . .

.".

Id. at 282-83 (citing Nexus Servs., Inc. v.

Manning Tronics, Inc., 410 S.E.2d 810, 811 (Ga. Ct. App. 1992)).
While making decisions about funding the Chamber of Commerce
might have been part of Defendants' official duties on behalf of
their employers, it is (at least) plausible that insulting
Plaintiff and pressuring the Board members of the Chamber of
Commerce to fire Plaintiff by commenting on her attire and her
gender (in addition to threatening to eliminate funding if the
Board did not remove her from her position) were not within the
scope of Defendants' official duties. Noting that Plaintiff has
only brought suit against these Defendants in their individual
capacities, and that Plaintiff has plausibly alleged that
Defendants acted outside the scope of their official duties, the
Court cannot find that Defendants were privileged to interfere
with Plaintiff's employment relationship at this stage in the
proceedings.
In light of the above discussion, Plaintiff has adequately
stated a claim for tortious interference with her employment
contract.

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V. CONCLUSION

As Plaintiff has stated claims for conspiracy to violate
her civil rights and for tortious interference with her
employment contract, Defendants' Motions to Dismiss Plaintiff's
Complaint and Amended Complaint (Dkt. Nos. 10, 14, 27, 29) are
DENIED.

SO ORDERED, this

30 "

day of March, 2015.

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-

~~

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

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