Lee v. Christian et al

Filing 91

ORDER granting in part and denying in part 68 Motion for Summary Judgment; and granting in part and denying in part 69 Motion for Summary Judgment. Regarding all other claims against Defendant Davis, however, summary judgment is DENIED. Signed by Chief Judge Lisa G. Wood on 11/18/2016. (csr)

3i[n

?Ettiteli ^tates( Bt^e(trttt Court

tor tl^e ^oitttiem Biotntt ot (ileorsta
iirttttoititck Btlitfiiion
*

DEBORAH LEE,

*
*

Plaintiff,

*
*

vs.

*

HAROLD PAUL CHRISTIAN,

individually and in his
official capacity as County
Manager of Pierce County,
Georgia; CARL BOYETTE; TOMMY

*

LOWMAN;

CV 214-97

*

*

*
*
*

TOM DAVIS,

*

Defendants.
ORDER

Presently
Christian's
68) .

before

the

(''Christian")

Court

is

and Mayor Tom Davis

Motion for Summary Judgment

("Boyette"),

("Davis")

(Dkt.

No.

have

69).

below,

both

motions

are

GRANTED

IN

Paul

(Dkt.

No.

Tommy Lowman

filed a

joint

The motions have

been fully briefed and are ripe for decision.
stated

Harold

Motion for Summary Judgment

Further, Defendants Carl Boyette

("Lowman"),

Defendant

For the reasons

PART

AND

DENIED

IN

PART.

FACTUAL BACKGROUND

Plaintiff

Deborah Lee

worked as

the Director of

the

Pierce

County Chamber of Commerce from June 1999 until February 2013.

She

D72A

ev. 8/82)

lives

in

the

City of

Blackshear,

Pierce

County,

Georgia,

with her husband of 28 years.
this case are Christian,

County

Commissioner;

Dkt. No. 21 H 8.

Defendants in

Pierce County Manager; Boyette,

Lowman,

Director

of

the

Pierce

Pierce

County

Industrial Development Authority; and Davis, the former mayor of
Blackshear.

Dkt. No. 21 M 10-13, 15.

Plaintiff started working for the Pierce County Chamber of
Commerce in June 1999.

H 14.

According to her immediate

supervisor. Plaintiff ^^served cheerfully and competently 100% of
the

time."

Dkt.

No.

78-3

H 4.

County Manager in August 2011.

Defendant

Christian

Dkt. No. 21 K 15.

became

From the time

he began serving in that position. Defendant Christian became a
routine

visitor

visiting.

to

Defendant Christian

and encouraging."
which

the

Plaintiff's

annual

office.

''was

Id.

16.

While

extremely friendly,

helpful

He "often discussed with
financial

contribution

of

Chamber of Commerce could be increased."
Defendant

Christian's

conduct

K

[Plaintiff]
the

county

ways in
to

the

H 17.

eventually

began

to

take

a

more unwelcome turn.

According to the Pierce County Commission

Chairman,

Christian

Dkt.

No.

making

Defendant
78-6

II 4.

sexualized

Further,

comments

to

started
Plaintiff

her.

"stalking"
claims

Plaintiff

Plaintiff.

Christian began

summarizes

nature of those comments in her declaration:

•

Opinion about the provocative nature of
physical shape;

[Plaintiff's]

the

•

Comments

offering

[Plaintiff]

a

higher

salary

in

exchange for sexual favors;

•

Ongoing requests that he and

[Plaintiff]

take out-of-

town trips together at taxpayer expense;
•

Promises

to

include

the

Chamber

of

Commerce

in

the

Pierce County employment benefits program in exchange
for sexual favors;

•

Promises

to

and

increase,

and

promises

not

to

decrease.

Pierce County's monthly contribution to the Chamber of
Commerce in exchange for sexual favors.

Dkt.

No.

78-1

H 10.

Plaintiff

claims

she

became

fearful

of

being alone with Defendant Christian and started to take steps
to avoid that possibility.

For example.

Plaintiff claims she

would lock her office door when she thought Defendant Christian

might visit
Dkt. No.

so that

78-10 p.

it would appear that

she was not

there.

43.

One day in June 2012, while Plaintiff was at the gym during
lunch.

Defendant

Christian

will,

grabbed and

press

his

Plaintiff

lips

turned

against

[Plaintiff's]

her

against

detach herself"

encounter.

lips."

Dkt.

No.
the

78-1

H 13.

attempted kiss

Plaintiff states that she had to "forcibly
Defendant

Christian.

Just

Defendant Christian blew Plaintiff a

the gym.
Plaintiff's

from

[Plaintiff's]

body and attempted to

quickly turned her head so that

landed on her cheek.

2012

^^forcibly and

after

the

kiss as he left

Conflicting reports of this event were given by
workout

affidavit

companion,

Brandi

confirmed P l a i n t i f f ' s

King

account

("King").
that

this

King's
event was

"totally inappropriate" and. that Defendant Christian "would have

kissed her on the lips" had she not turned away.
Further,

King testified "[Christian]

the line."

Id.

knew he

On the other hand,

Another

witness

immediately afterwards.

outside

of

Plaintiff

stepped

over

Dkt. No. 68-13 HH 7,

the

gym

appeared

like

wrong with her" and that she was '"shocked."
The next day.

had

her 2016 affidavit recalls

the event as a simple kiss on the cheek.
9.

Dkt. 75-8 H 4.

that

^'something was

Dkt. No. 78-7 H 6.

Defendant Christian went to

Commerce and spoke with Plaintiff.

testified

the Chamber of

Plaintiff claims Defendant

Christian apologized and said that Plaintiff was a nice-looking
woman,

gym,

which accounted for his conduct the previous day at the

which,

according

harassment."
incident,

as

Dkt.
well

No.
as

to

him,

75-10

was

p.

Defendant

40.

inappropriate

attests

conduct

that

by

Plaintiff

Christian's

her supeirvisor, Jerry Dixon ("Dixon") .
Plaintiff

different

she

"sexual

reported
advances,

the
to

Dkt. No. 75-3 HH 5-7.

grew

Defendant

other

from

fearful

Christian.

taking more extreme steps to avoid him,

of

further

She

started

such as disassociating

from him at meetings and continuing to lock the office door when
she was there alone.
Chairman

Mitch

Bowen

Dkt. No 78-10 at pp. 40-43.
expressed

that

he

knew

Pierce County
Plaintiff

^ The Court considers both affidavits when ruling on this motion.
discrepancies between them would only affect the weight rather than
admissibility of the evidence, if this case reaches a jury.

was

The
the

locking her door because

she

feared Christian would come

in.

Id. H 5.

Shortly after the encounter between Plaintiff and Defendant
Christian at

the gym,

all of

the Defendants attended multiple

secret" meetings every Monday.
6 H 8.
held

These meetings were considered secret because they were
without

p\iblic

notice.

Commission were excluded.
The agenda at
one

Dkt. No. 75-5 H 9; Dkt. No. 75-

of

them,

members

of

the

County

Dkt. No. 75-5 H 9; Dkt. No. 75-6 i| 8.

these meetings
the

Some

is .disputed,

Chamber of

but during at least

Commerce was

discussed.

Dkt.

No.

75-5 H 9.
Defendants

eliminate
budget

if

Davis

funding

for

Plaintiff

Dkt.

No.

78-5

the

President

and

was

H 8.
of

the

Christian

Chamber
not

of

allegedly

Commerce

discharged

from

attempted

in
her

the

to

County

employment.

Defendants Davis and Christian spoke with
the

Chamber

of

Commerce,

and

Plaintiff's

supervisor, Dixon, and threatened to eliminate continued funding
for the Chamber of Commerce,

if the Chamber of Commerce did not

discharge

Plaintiff.

No.

Davis

Christian

rid"

and
of

Dkt.

reportedly

78-15

pp.

told Dixon

Plaintiff because her clothing was

20-24.

Defendants

they wanted

to

^^inappropriate"

^'get
and

the type worn by a ^'stripper."

Dkt. No. 78-6 H 13; Dkt. No. 78-

5 f

Dixon disagreed that Plaintiff's

10; Dkt. No.

68-6 p.

clothing was improper.

60.

Dkt.

No.

75-3 K 6.

Eight months after

the incident at the gym,
Dkt.

No.

68-3

p.

1.

in February 2013,
Plaintiff

alleges

Plaintiff resigned.
that

she

ultimately

resigned due to the pressure and stress exerted by Defendants/
actions,

disparaging

comments

to

co-workers,

harm her reputation in the community.

and

attempts

to

Dkt. 78-10 p. 119.

PROCEDURAL BACKGROUND

Plaintiff

against

asserts

Defendant

claims

Christian

of

sexual

(Counts

I

battery

and

and

II) .

assault

She

brings

claims of conspiracy to violate her civil rights under 42 U.S.C.
§

1985(3)

against

and

all

tortious

defendants

interference

(Counts

with

IV and

employment

III) .

contract

She also

seeks

punitive damages and litigation expenses against all defendants
(Counts V and VI) .

brought

against

Her claims against Defendant Christian are

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 or
Matthew Carter.

Lowman,
No.

The Court previously denied Defendants Davis,

and Boyette's Motion to Dismiss on March 30,

2015

(Dkt.

shows

that

41).
LEGAL

Summary
there
movant

is
is

no

judgment
genuine

entitled

to

is

STANDARD

required where

dispute

as

judgment

to
as

any
a

^^the movant
material

matter

of

fact

law."

and
Fed.

the
R.

Civ.

P.

56(a).

outcome of

Grp.

V.

A fact

the

suit

is

under

FindWhat. com,

^"material"
the

658

F.3d

1282,

Liberty Lobby,

(1986) ) .

over

dispute

it

^'might

governing law."

(quoting Anderson v.
A

if

such

a

1307

Inc.,
fact

FindWhat

(11th

477

is

affect

Inv^ r

Cir.

U.S.

the

2011)

242,

248

if

the

^'genuine"

^'evidence is such that a reasonable jury could return a verdict
for

the nonmoving party."

the

court

favorable

is

to

to

inferences

Washington

view

the

in

Id.

all

of

nonmoving

that

Broad.

the

evidence

party

party's

Serv. ,

In making this determination,

and

favor.

Inc. ,

in

draw

the

all

Johnson

234

F.3d

501,

v.

507

light

most

reasonable
Booker

(11th

T.

Cir.

2000).

The party seeking summary judgment bears the initial burden
of

demonstrating

fact.

the

Celotex Corp.

satisfy this burden,

absence
v.

of

Catrett,

a

genuine

477 U.S.

issue

317,

of

323

material

(1986).

To

the movant must show the court that there

is an absence of evidence to support the nonmoving party's case.
Id.

at

If

325.

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
exist.
this

Anderson,

477

U.S.

burden in two ways:

the record in fact

at

257.

First,

contains

genuine issue of fact does

the

The nonmovant may satisfy
nonmovant

supporting evidence,

"may show that

sufficient to

withstand

a

ignored'

directed

verdict

motion,

by the moving party,

which

was

^overlooked

who has thus failed to meet the

initial burden of showing an absence of evidence."
V.

City of Atlanta,

Celotex

Corp.,

2 F.3d 1112, 1116

477

U.S.

or

at

332

Fitzpatrick

(11th Cir. 1993)

(Brennan,

J.,

(quoting

dissenting)).

Second, the nonmovant ^'may come forward with additional evidence
sufficient to withstand a

directed verdict motion at trial based

on the alleged evidentiary deficiency."

nonmovant

instead attempts

to

at 1117.

carry this

Where the

burden with nothing

more "than a repetition of his conclusional allegations,

judgment for the defendants

[is]

summary

not only proper but required."

Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981).
ANALYSIS

A. Federal Claims

Plaintiff

1985(3)

asserts

her

("Section 1985"),

civil rights.

federal

claims

alleging a

imder

42

U.S.C.

§

conspiracy to violate her

The elements of a civil rights conspiracy cause

of action under Section 1985 are

(1)

a

conspiracy;

(2)

for the

purpose of depriving any person or class of persons of the equal
protection of

the

under the laws;

(4)

inj ury.

(3)

laws,

an act in furtherance of the conspiracy; and

United Ed.

610,

AFL-CIO V.

the

second

or of equal privileges and immunities

Scott,

element,

of Carpenters & Joiners of Am. ,

463 U.S.
there

825,

must

be

828-29

(1983).

class-based

Local

As part of
"invidiously

discriminatory

animus

behind

(quoting

Griffin v.

^^[W]omen

are

a

1985(3),

and

therefore

the

conspirators'

Breckenridge^

^class

of

403

persons'

are

U.S.

within

protected

by

action."

88,
the

that

102

Id.

(1971)).

meaning

of

provision

conspiracies against them motivated by sex-based animus."
V.

City of Riviera Beach,

166 F.3d 1332,

1339

§

from

Lyes

(11th Cir.

1999)

(en banc).

i.

Plaintiff's Section 1985 Claims Against Defendants
Davis and Christian^

Defendants Davis and Christian move for summary judgment on

Plaintiff's Section 1985 claims, alleging that she has failed to

establish a genuine issue of material fact.

Specifically,

they

argue that Plaintiff has failed to show evidence of an agreement

to conspire or evidence of discriminatory animus.
pp. 6-8.
^^In

Dkt. No. 69-1

The Court addresses each argument in turn.
order

to

establish

a

§

1985(3)

conspiracy

claim,

[Plaintiff]

must show an agreement between

^two or more persons'

to deprive

[her]

Dickerson v.

Cty.

Comm'n,

survive
evidence
Houser,

200 F.

summary
of

of

an

[her]
3d 761,

judgment
agreement

754 F.3d 1335,

1349

civil rights."
767

if
to

(11th Cir.

she

can

conspire.

(11th Cir.

2000).

present
See

2014);

Alachua

Plaintiff may

circumstantial

United

States

v.

see also Grider v.

2The Court notes that while Defendants Davis, Lowman, and Boyette have filed a
joint motion, the evidence against Defendant Davis is more similar to that
against Defendant Christian.
Therefore,
the Court addresses Plaintiff's
claims against Defendants Davis and Christian together.

City of Auburn,

618 F.3d 1240,

1260

(11th Cir.

2010)

("Factual

proof . of the existence of a § 1983 conspiracy may be based on
circumstantial evidence.").

established

a

genuine

The Court finds

issue

of

material

that Plaintiff has

fact

regarding

an

agreement to conspire in regards to Davis and Christian.
The
incident,

78-6

record

that

immediately

after

the

Defendants held multiple "secret" meetings.

H 8;

meetings

reflects

Dkt.

may

No.

75-5

have

H 7.

ignored

There

is

evidence

public-notice

laws

members of the Pierce County Commission.

Dkt.

the

Dkt.

75-5 H 7.

incident

75-5

9,

establish a
what

was

between

11.

Defendant

These

factual

actually

Christian's

Further,

discussed

conduct

reinforce Plaintiff s

outside

that

these

excluded

78-6 H 8.

At

an agenda

all Defendants had knowledge of
Christian

meetings

question,

Dkt. No.

and

least one meeting involved Plaintiff's department as
item.

kissing

alone

because
at
of

and

are

there

those

Plaintiff.

insufficient

to

is no evidence of

meetings.

those

Dkt.

meetings,

Davis

and

however,

argument and creates an issue of material

fact.

Specifically,

Christian and Davis'

meeting with Plaintiff's

supervisor creates an issue of fact as to whether some agreement
occurred.

Plaintiff's

Dkt.

There is evidence that Davis and Christian approached

supervisor

78-15 pp.

22-26.

and

requested

that

During this meeting,
10

he

fire

Plaintiff.

the two agreed that

'"they felt like a male" needed to be in Plaintiff's position.
Id.

at

25.

alleged

It was

conveyed that Christian and Davis had an

co-conspirator

Lowman.

in

at 22.^

mind

Further,

for

her

replacement,

in this same meeting,

Tommy

Christian

and Davis told Plaintiff's supervisor that his department would

receive

more

funding

replaced Plaintiff.

Defendants

from

both

the

city

and

county

if

he

Dkt No. 78-15 pp. 20-24.

^^intracorporate

conspiracy

doctrine" requires that summary judgment be granted.

Under this

doctrine,

argue

that

the

if Defendants and the Plaintiff are all employees of

the Pierce County government,
Pierce County cannot
F.3d at 768.

of a

Here,

then no agreement can exist,

conspire against
however.

itself.

Dickerson,

as
200

Defendant Mayor Davis was a member

separate public entity from all other Defendants.

Davis

represented the City of Blackshear, whereas all other Defendants
represented

Pierce

County.

Furthermore,

the

intracorporate

conspiracy doctrine does not apply if the alleged conspirators
act

outside

Dekalb Cty. ,
Feb.

15,

of
No.

the

scope

104-CV-3039,

2005) .

Based

Christian,

there is a

defendants

were

Specifically,

of

employment.

2005 WL 5121856,
the

comments

McMillan

at *5

made

by

v.

(N.D.

Ga.

Davis

and

fact question regarding whether those two

acting

Davis

on

their

and

within

the

Christian's

scope

of

comments

their
create

employment.
a

genuine

^ The Court notes there is no evidence in the record that Davis and Christian
had any discussion or agreement with Lowman about this arrangement.
11

issue

of

fact

they

rather

animus,

whether

than

within

Therefore,

were

acting

the

with

scope

of

discriminatory

their

duties.

the intracorporate conspiracy doctrine does not apply

here.

Davis

and

Christian

also

argue

that

Plaintiff's

Section

1985 claim fails to show a deprivation of the equal protection

of law.

Dkt. No. 87 pp. 8-10.

summary judgment if
Christian's
animus."

785,

788

reflect
Bd.

gender-based

of Trs.

of Ga.

and

^'discriminatory

Military Coll.,

970 F.2d

(11th Cir. 1992).

Here,
whether

the Plaintiff establishes that Davis'

actions

Burrell v.

A Section 1985 claim may survive

discovery has revealed a

Davis

Plaintiff

on

and

the

Christian's

basis

of

factual question regarding

actions

her

were

gender.

The

taken

against

meetings

between

Defendants took place immediately after the kissing incident at

the gym.

Dkt.

78-6 H 8;

asked Plaintiff s

Dkt.

75-5 H 7.

Christian and Davis

supervisor to terminate her because "they felt

like a male" was needed in Plaintiff's position.

Dkt.

22:17-25.

Further,

and

referenced

Plaintiff's

dress

as

43:16-19.

clothing

Dkt.

78-4

the

reason

Davis

was

"too

H 11.

in

the

why

meeting,

"unprofessional"
she

mentioned

sexy"

same

and

needed

to

another

that

she

to

Davis
and

be

Christian

"stripper"-like

replaced.

witness

dressed

78-15 at

that

"like

M.

at

Plaintiff's

a

hooker."

Christian stated Plaintiff was dressed like a
12

^'tramp" and how her shoes made her ^^look like a stripper."
75-6 H 1.

fact

Dkt.

These statements create a genuine issue of material

regarding

intent.

It

Davis

is

and

Christian's

undisputed that

alleged

Plaintiff

has

discriminatory
established the

remaining elements of a Section 1985 claim.

Finally,

Defendants

allege

that

Plaintiff

^^comparator" to prove discriminatory conduct.

requires

Dkt.

a

69-1 p.

4.

This Court previously found that a comparator is only required
in

the

absence

Dkt. No.
1562

of

other

41 pp. 17-19

evidence

indicating

(citing Holifield v.

(11th Cir. 1997)).

Specifically,

discrimination.

Reno,

115 F.3d 1555,

if the record ''presents a

convincing mosaic of circumstantial evidence that would allow a

jury to infer intentional discrimination by the decisionmaker,"
summary judgment may be denied.
644

F.3d

quotation

1321,

1328

marks

(11th

omitted).

Smith v. Lockheed-Martin Corp.,

Cir.

2011)

Here,

discriminatory

witnesses,

and the meeting with Plaintiff's

question

sufficient

discrimination.

Thus,

for

a

judgment

as

to

by

to

Therefore,

Plaintiff's

Davis and Christian.

13

Section

of

internal

secret

third-party

supervisor create a

infer

no comparator is necessary,

is supported by other evidence.
summary

reported

jury

and

combination

meetings,

fact

comments

the

(citation

intentional

as the record

the Court will deny
1985

claim against

ii.

Plaixi'klff's Section 1985 Claims Against Loviman and
Boyette

Plaintiff's Section 1985 claims against Lowman and Boyette

are

a

different

Lowman

and

matter.

Boyette

Unsupported

said

during

speculation

the

secret

insufficient to survive summary judgment.

Inc.,
Here,

419 F.3d 1169,
the

record

involvement,

1181

is

outside

secret meetings.

(llth Cir.

devoid
of

the

of

2015)

he

was

what

meetings

Cordoba v.

evidence

fact

about

is

Dillard's,

(citation omitted).
regarding
present

Unlike Davis and Christian,

Boyette's
during

the

Boyette took no

actions in combination with those meetings that would create an

issue of fact regarding whether he agreed to be a part of the
conspiracy.

Plaintiff

certainly

need

not

provide

a

smoking

gun"

showing an agreement between Boyette and the other Defendants.
Arline v. City of Jacksonville, 359 F. Supp. 2d 1300, 1312
Fla.

2005).

some

circumstantial

conspire
1338,
a

Plaintiff,

took

1349

however,

evidence

place.

See

(llth Cir.

2014)

(M.D.

still must be able to provide

which

United

shows

States

that

v.

an

agreement

Houser,

754

to

F.3d

(''Factual proof of the existence of

§ 1985 conspiracy may be based on circumstantial evidence.").

Here,

the sole evidence linking Boyette to the conspiracy is his

presence at the aforementioned meetings.
insufficient basis

to

create a

genuine

14

This by itself is an
issue

of

material

fact

regarding Boyette's
Inc.

V.

1986)

Std.

Oil

agreement

Co.

to

(Ind.) ,

conspire.

799

F.2d

See Terry Props.,

1523,

1539

(11th

Cir.

(meetings alone insufficient to establish a Section 1985

claim

when

plaintiff

discriminatory
evidence

in

comments

the

failed
at

those

record exists

based prejudice.

to

Therefore,

present

meetings).

evidence
Furthermore,

linking Boyette

of
no

to -any gender-

the Court grants summary judgment

as to the Section 1985 claim against Boyette.
The

record

is

also

devoid

of

facts

that

Lowman acted with any discriminatory animus.

points to a
a l l of

does

indicate

While

that

Plaintiff

multitude of gender-based comments in the record,

these are attributed to Davis

reflect

that

Lowman

had

and Christian.

some

dispute

The

with

record

Plaintiff

regarding the travel budget in Pierce County and may not have

cooperated well with her.
however,

occurred

beginning of

the

before

Dkt. No. 78-7 UK 4-5.
the

incident

secret meetings.

with

This dispute,

Christian

Furthermore,

mere

and

the

evidence

that Lowman and Plaintiff did not get along well is insufficient
to

establish

a

Section

1985

claim.

Therefore,

Plaintiff

has

failed to establish any evidence of gender-based animus on the
part of Lowman.

Unlike Davis and Christian,

there

is

insufficient evidence

in the record to establish anything more than mere speculation
as

to

Boyette

and

Lowman's

alleged
-15

discriminatory

conduct.

Speculation

judgment.
the

is

insufficient

to

survive

a

motion

for

summary

Cordoba, 419 F.3d at 1181 (citation omitted).

Court will

also

grant

summary

judgment

in

Thus,

regard

to

the

Section 1985 claim against Lowman.
B. State Law Claims

i.

Davis, Lowman, and Boyette's Official Immunity From
State Law Claims

Davis, Lowman, and Boyette claim that Plaintiff's state law

claims against them in their individual capacities are barred by
the

doctrine

of

Constitution,

official

^^state

immunity.

officers

departments

and agencies

are

negligently

perform

and

fail

functions'

or

when

or
they

act

According
employees

subject
to

to

Richardson,

Ga.

art.

Const,

I

§

452

2

S.E.2d 476,

H IX(d)).

deliberate intention to do hazm.

336,

337

(Ga.

actual malice

the

1996) .

official

Therefore,

immunity

Murphy v.
Davis,

in

their

the

Georgia

those

of

only when

their

they

or

intent

to

^official functions.'"
483

(Ga.

Actual

1994)

malice

for

a

(citing

requires

Hawkins,

necessary

467

a

S.E.2d

showing

of

to cause the harm suffered by

Baj j ani,

Lowman,

and

individual

647

S.E.2d

Brown

are

capacities

54,

60

entitled

unless

record establishes a fact question regarding actual malice.

16

its

^ministerial

malice

Merrow v.

intent

^^must be the intent

plaintiffs."

2007).

The

suit

actual

cause injury in the performance of their
Gilbert v.

and

perform

with

to

(Ga.
to

the

Here,

Plaintiff presents numerous facts

allegations
comments

Davis'

of

actual

about

alleged

malice

Plaintiff's

push

to

against

Davis.

appearance,

have

in support of her

as

Plaintiff

The

well

litany

as

terminated,

of

Defendant

create

issue of fact regarding whether they intended to do harm.

an

Thus,

Davis is not protected by official immunity in his individual
capacity.

Boyette and Lowman,

however,

retain immunity for the same

reasons that Plaintiff's Section 1985 claims against them fail.
Unlike Defendant Davis,

no malicious

comments

and actions

been directly attributed to Boyette and Lowman.
pointing

to

meetings,

fact

without

malice.

granted

the

Thus,

in

that

more,

is

Defendants'

regards

to

these

Further, simply

Defendants

insufficient

to

have

attended

secret

establish

actual

Motion for Summary Judgment will be

Boyette

and

Lowman,

as

they

maintain

official immunity in their individual capacities.
ii.

Defendant Christian's Sovereign Immunity

Unlike

sovereign

the

other

immunity.

Dkt.

No.

pp.

however,
capacity,

applies
rather

only
than

to

(Ga.

2001) .

defendants

their

personal
17

sued

that

a

government
Cameron v.

Sovereign

in

capacity.

claims

Sovereign

is protected regardless of actual malice.
344-47

in

11-12.

official

S.E.2d 341,

immunity

only

differs

549

official

68-1

Christian

immunity

Lang,

from

Defendants,

their

immunity,

official

Gilbert,

452

S.E.2d at 483.

Suits brought against public employees in their

official capacity are considered suits against the governmental
entity

for

which

foreclosed.

they

Cameron,

are

549

employed,

S.E.2d

at

and

therefore

344-47.

The

are

Georgia

Constitution applies sovereign immunity to ^^the state and all of

its departments and agencies [.]"
IX(e) .

Under

this

waived by an Act
provides
extent

that

of

General

provision,

of

the

sovereign

such

Assembly

Const,

sovereign

General

is

Gilbert,

explicitly

arts.

immunity

thereby
452

this

not alleged that there has been any waiver of
sovereign

capacity.

immunity

Sovereign

shields

immunity

Christian

does

not,

only be

specifically

at

county governments under O.C.G.A. Section 36-1-4.

Thus,

§ II H

waived

S.E.2d

extended

I

^'can

Assembly which

immunity

waiver."

has

Ga.

748.

the
The

protection

to

Plaintiff has
this

in

and

immunity.

his

however,

official

grant

him

immunity in his personal capacity.
i i i . Plain-biff's Claims for Torbious Interference Against
Defendants Davis and Christian

Davis

regarding

and

Christian

Plaintiff's

elements of a

also

move

tortious

for

summary

interference

judgment

claims.

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

obligations
discontinue

or
or

induced

caused a
fail
to

a

party
enter
18

breach

of

or third
into an

contractual

parties to
anticipated

The

business relationship with the plaintiff; and (4) the
defendant's tortious conduct proximately caused damage
to the plaintiff.
Tidikis

v.

Network

for

Med.

481, 486 (Ga. Ct. App. 2005)
Defendants

Davis

and

Commc'ns

Research,

LLC^

619

(citations omitted).

Christian

contend

that

because

employers,

the City of Blackshear and Pierce County,

financial

support

privileged

to

to

the

interfere

S.E.2d

Chamber

with

of

Commerce,

Plaintiff's

their

provided

they

employment

were

contract

under the '"stranger doctrine."

The stranger doctrine notes that "in order for a defendant
to

be

liable

relations,

and the
the

tortious

interference

the defendant must be a

business

contract."

S.E.2d

for

278,

283

(Ga.

Mkt.

1998)

contractual

stranger to both the contract

relationship giving
Atlanta

with

Ctr.

rise
Mgmt.

(emphasis

in

to
Co.

and underpinning
v.

original)

McLane,

503

(citations

omitted).

Plaintiff

urges

the

Court

to

find

that

Davis

and

Christian's protections under the stranger doctrine fail due to
evidence

establishing

discrimination.

an

issue

Tortious

of

fact

interference,

contemplate gender discrimination as

regarding
however,

2008).

No.

5:05-cv-392,

The

Court

also

2008 WL 350975,

notes

that
19

does

not

the type of "interference"

actionable under Georgia business tort law.
Perry,

gender

if

at

Weigand v.
*6

(M.D.

Ga.

City of
Feb.

7,

acting with gender-based

animus was an exception to the

stranger doctrine,

the malice

element would essentially be redundant.

Instead,

Georgia

law

prevents

Davis

and

Christian

from

being strangers to a business relationship between Pierce County
and Plaintiff

if:

(1)

the

the injured relations;
dependent

upon

the

defendant

(2)

is

an essential

entity to

the allegedly injured relations are

defendant's

relations;

(3)

the

defendant

would benefit economically from the alleged injured relations;
or

(4)

both the

defendant and the plaintiff are parties

comprehensive interwoven set of relations.
Christian

had

Commerce.

partial

Dkt.

Manager)

and

integral

parts

No.

control

78-5

Christian

of

over

8.

Mayor

series

the

of

proper framework.
Court

tortious

iv.

will

of

the
Davis

Blackshear)

Chamber
(as

not her tortious

Weigand,
grant

were

between Pierce

Plaintiff is certainly not

interference claim,

2008 WL 350975,

summary

of

County

both

for her gender discrimination claims,

Section 1985 claim,

the

funding

relationships

County and the City of Blackshear.
without recourse

Both Davis and

Furthermore,

(as

to a

judgment

but her
is the

at *6.

Therefore,

regarding

Plaintiff's

interference claims.

Plain-tiff's Claim for Assault and Battery against
Defendant Christian

Under Georgia law,

would be offensive

to

a

a

battery is

an unlawful

reasonable person.

20

touching that

Ellison v.

Burger

King

Corp.,

670

S.E.2d 469,

472-74

(Ga.

Ct.

App.

2008).

offensive touching is typically the result of anger,

or lust.
of

an

Inc.

Assault

rudeness,

Under Georgia law, an assault is the apprehension

imminent

Serv.,

An

v.

and

Derrick,

battery

single claim,
Red Roof

harmful

or

offensive

contact.

293 S.E.2d 724-25

are

typically

(Ga.

Capitol

Ct. App.

considered

Inc.,

729

Christian only disputes

S.E.2d

the

378

(Ga.

offensiveness

as

a

See Couch v.

2012).

of

1982).

together

rather than as two separate claims.

Inns,

T.V.

Regardless,

his

contact,

not

Plaintiff's apprehension of the kiss.
Here,

Plaintiff

has

met

her

'^low

establishing an assault and battery claim.
at

472-74.

While

Christian

simple peck on the cheek,

frames

the

to

kiss

conduct

to

outside

of

Plaintiff

appeared

''shocked."
itself
lips

left
and

lips

^^totally

the

Dkt.
a

670 S.E.2d

incident

as

a

the record reflects a material issue

and

Dkt. 78-8 H 4.
be

2012

for

Specifically, witness

that Christian may have forcibly attempted

Plaintiff's

turned away.

Ellison,

June

of fact as to whether it was more severe.

testimony indicates

threshold"

gym

string

failed

testified

of

[Plaintiff's]

Plaintiff

H 6.

"drool

Another

that

^^something was

78-7

because

Further, an eyewitness found this

inappropriate."

like

No.

only

immediately
wrong with

Plaintiff

face."
21

Dkt.

No.

afterwards.
her"

alleged

extending between

witness

and was

the

kiss

[Christian's]

78-1

13-14.

Christian

himself

inappropriate,

may

have

even

believed

because after the incident,

the

conduct

he felt

was

the need to

apologize and explain that it was not "sexual harassment."
No.

78-10 p.

Dkt.

40.

Christian's primary opposition to Plaintiff's claim is that

she

framed

her

battery

Amended Complaint.
has

held

that

a

as

Dkt. No.
plaintiff

criminal

68-1 p.
cannot

response to summary judgment.
382 F.3d 1312,

1315

"sexual"

12.

battery

in

her

The Eleventh Circuit

amend

her

complaint

in

a

Gilmour v. Gates, McDonald & Co.,

(11th Cir.

2004).

This rule only applies,

however,

if Christian was not put on notice that Plaintiff was

alleging

a

Christian

battery
should

claim.

have

battery claim was not a

This

reasonably

is

inferred

not

the

that

case

her

here.

"sexual"

claim under the criminal statute,

but

instead, a civil battery claim.

Christian

also

immunity under the

p.

12.

GTCA

appears

to

claim

that

Georgia Tort Claims Act

immunity

from

intentional

he

is

entitled

("GTCA") .

tort

Dkt.

claims,

to
No.

however,

only applies if Christian was "acting in the course and scope of
his employment" with Pierce County.
853,

56

854-56

(Ga.

(Ga.

2001);

Ct. App.

2005) .

Christian's

scope of

Davis v.

Ridley v. Johns,

Standifer,

552 S.E.2d

621 S.E.2d 852,

855-

The incident here did not occur within

employment.

The kiss occurred outside of

the workplace while Plaintiff and Christian were working out at
22

the gym.

This was not pursuant to Christian's official duties

with the County, or even during work hours.

Regardless,
than county,

(Ga.

Ct.

GTCA protections only extend to state,

officials.

App.

genuine

and

2015) .

issue

assault

Crosby v.

of

Therefore,

material

battery

Johnson,

fact

claim.

the

Thus,

779 S.E.2d 446,

record

exists

rather

reflects

regarding

summary

449

that

a

Plaintiff s

judgment

will

be

denied.

V.

Plain-biff's Claims for Punibive Damages

Finally,

Court

must

the Court addresses Defendants'

grant

summary

judgment

on

punitive damages and attorney's fees.

argument that the

Plaintiff's

claim

for

'^^Punitive damages may be

awarded in such tort actions in which it is proven by clear and

convincing evidence that the defendant's actions showed willful
misconduct,

want

of

malice,

care

indifference

fraud,

which
to

would

wantonness,

raise

the

oppression,

presumption

consequences."

O.C.G.A.

Court has already found that a

genuine

§

of

or

entire

conscious

51-12-5.1(d).

issue of material

The

fact

exists regarding whether Davis and Christian acted with malice.

Therefore, summary judgment will be denied.^
* Defendant also

claims that

damages because she has
incident.
Dkt. No. 68-1
App. 28, 30-31 (2001)).
distress damages may be
wanton

action"

Plaintiff is not entitled to emotional distress

not established physical injury as a result of the
p. 13 (citing H.J. Russell & Co. v. Jones, 250 Ga.
Defendant reads Georgia law too narrowly.
Emotional
appropriate as
result of "malicious, willful, and

di«ected a t

Plaintiff.

Id.

5Defendants also 'dbntest attorney's fees on the sole assumption that the Court
will

grant

summary

judgment

in this matter.
23

Defendants Lowman and Boyette

CONCLUSION

Based on the above, i t is hereby ordered that:

1.

Defendant Christian's Motion for
68)

is

GRANTED IN

PART

Summary Judgment

AND DENIED

IN PART.

(Dkt.

No.

In regards

to

Plaintiff s claims against Defendant Christian in his Official

Capacity

and

Plaintiff's

motion is GRANTED.
however.

2.

Judgment
to

Interference

claims,

the

Regarding all Of Plaintiff's other claims,

Defendant Christian's Motion is DENIED.

Defendants

As

Tortious

Davis,

(Dkt. No.

Lowman,

69)

Plaintiff s

Boyette,

as

interference
GRANTED.

and

Motion

for

Summary

is GRANTED IN PART AND DENIED IN PART.

claims

well

Boyette's

as

against

against

Defendants

Plaintiff's

Davis,

claim

summary

Lowman

for

judgment

and

tortious
is

hereby

Regarding all other claims against Defendant Davis,

however, summary judgment is DENIED.

SO ORDERED, this 18th day of November,

2016.

LISA GODBEY WOOD,
UNITED

STATES

CHIEF JUDGE

DISTRICT

COURT

SOUTHERN DISTRICT OF GEORGIA

indeed are granted summary judgment and,
to

attorney's

fees

as

to

them.

therefore,

The Court will

judgment as to Defendants Davis and Christian,
pending as to claims against those two defendants.
24

Plaintiff is not entitled

not,

as

however,

this

grant summary

matter

is

still