Skolweck v. Mayor and Councilmembers of Garden City, Georgia et al

Filing 16

ORDER granting in part and denying in part 4 Motion to Dismiss. Signed by Judge B. Avant Edenfield on 10/18/12. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MARK SKOLWECK,
Plaintiff,
V.

4: 12-cv-227

MAYOR and COUNCILMEMBERS OF
GARDEN CITY, GEORGIA,
TENNYSON HOLDER, Mayor, SCOTT
GEORGE, Councilmember, JUDY
SHUMAN, Councilmember, DON
BETHUNE, Councilmember, BRUCE
CAMPBELL,
Councilmember,
BRYANT
CODY,
ROSETTA
BESSIE
Councilmember,
KICKLIGHTER, Councilmember,
BRIAN JOHNSON, City Manager,
RONALD FELDNER, Deputy City
Manager, CHARLES DRAEGER,
Director of Water Operations, PAM
FRANKLIN, Human Resources Director,
Defendants.
ORDER
I. INTRODUCTION
Before the Court is Defendants' Motion
to Dismiss for Failure to State a Claim.
Doc. 4.
II. BACKGROUND
Plaintiff Mark Skolweck ("Skoiweck")
originally filed this action in Chatham
County Superior Court, claiming that
Defendants retaliated against him in
violation of Georgia's Whistleblower Act
("GWA") and 42 U.S.C. § 1983 for his
disclosure of "abuse and waste[.]" See Doc.
1-6 at 3, 5-6. Skolweck sought an injunction

reinstating him to the position he held with
Garden City, Georgia ("City") preretaliation, as well as compensatory and
punitive damages, and attorney's fees. Id at
7-8. Defendants then removed to this Court
under 28 U.S.C. § 1441(a).' See Doc. 1.
That same day, Defendants filed the motion
to dismiss now before the Court, asserting
the defenses of (1) qualified immunity from
the § 1983 claims against them in their
individual capacities; and (2) failure to state
a claim on counts involving both the GWA
and § 1983. See Doe. 4.
Jurisdiction in this Court over
Skolweck's § 1983 claims is proper under
28 U.S.C. § 1331 and over his related state
law claims under 28 U.S.C. § 1367(a). For
the following reasons, the Defendants'
motion is GRANTED IN PART and
DENIED IN PART.
A. Facts
Because this case is before the Court on
a motion to dismiss for failure to state a
claim, the Court states the facts as alleged
"in the complaint, . . . accept[s] [them] as
true[,] and construe[s] [them] in the light
most favorable to the p1ainti]." Lanfear v.
Home Depot, Inc., 679 F.3d 1267, 1271 n.4
(11th Cir. 2012).
On January 5, 2009, the City hired
Skoiweck as a Master Mechanic. Doe. 1-6
Defendants' Notice of Removal erroneously states
the basis of removal as § 144 1(b). Doc. I at 3. The
Notice also, however, correctly describes § 1441 (a)'s
basis for removability in justifying removal here.
Doc. I at 3 ("This action is removable. . . because it
is a civil action over which this Court has original
jurisdiction founded on a claim allegedly arising
under the laws of the United States."). The Court
therefore disregards the typo.

tedious and menial tasks, designed to
interrupt the ability of Skolweck to properly
perform his job." Id. Finally, Draeger
required Skoiweck to do work that would be
impossible to complete because of the City's
lack of tools and resources. Id. Skoiweck
ultimately resigned on June 9, 2011. Id. at

at 2. At that time, Randall Griffin
("Griffin"), Director of the Public Works
Department for the City, supervised
Skolweck. id. at 3. On April 11, 2011,
Skoiweck notified City Manager Brian
Johnson ("Johnson"), Deputy City Manager
Ronald Feldner ("Feidner"), and Human
Resources Director Pam Franklin
("Franklin") "about the abuse and waste of
City resources by Griffin." Id. "Amid the
allegations, and during the City's
investigation" into Skoiweck' s report,
Griffin quit his job. Id. The City then
discontinued its investigation. Id.

5.

III. ANALYSIS
The Court first addresses Skolweck's §
1983 claims because they implicate subject
matter jurisdiction and the propriety of
removal. That analysis is conducted in two
parts. First, the Court evaluates the § 1983
claims against Defendants Johnson, Feidner,
Franklin, and Draeger in their individual
capacities. The Court then turns to the §
1983 claims against the Mayor and council
members.

Sixteen days after Skoiweck's report,
Defendants Johnson, Feldner, and Franklin
changed Skoiweck's job title to Shop Senior
Mechanic from Master Mechanic.' Id. At
the same time, Johnson, Feidner, and
Franklin "unilaterally and without prior
notification demoted Skoiweck by reclassifying his employment position from
exempt to non-exempt under the Fair Labor
Standards Act" ("FLSA") in violation of
"the City's own policy and procedures for
such re-classifications." Id at 3-4.
Skoiweck alleges that Johnson, Feldner, and
Franklin should have known the
reclassification violated the City's policies.
Id. at 4. After the demotion, Charles
Draeger ("Draeger") became Skolweck's
new immediate supervisor. Id. at 3.

After addressing the § 1983 claims, the
Court will examine Skoiweck's state law
claims. Before analysis of any of the claims,
however, the Court must outline the proper
standards of review.
A. Standards of Review for Qualified
Immunity and Motion to Dismiss
for Failure to State a Claim
Qualified immunity shields from suit
individual government officials performing
discretionary functions "insofar as their
conduct does not violate clearly established
statutory or constitutional rights of which a
reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982); see also Randall v. Scott, 610 F.3d
701, 714 (11th Cir. 2010). Courts
conducting qualified immunity analyses
must ask (1) whether a constitutional
violation has occurred, and (2) whether the

Draeger proceeded to "increase[]
Skoiweck's job duties significantly[,]"
knowing the increases "were. . . impossible
to fulfill." Id. at 4. Draeger "consistently
demanded Skolweck complete numerous
2

The complaint is unclear whether Griffin quit before
or after the Defendants allegedly changed
Skoiweck's job title.

2

right violated was clearly established. See
Pearson v. Callahan, 555 U.S. 223, 232
(2009). "[T]he district courts[,]" however,
are "permitted to exercise their sound
discretion in deciding which of the two
prongs ... should be addressed first in light
of the circumstances in the particular case at
hand." Id. at 236.

allows the court to draw the
reasonable inference that the
defendant is liable for the
misconduct alleged. The plausibility
standard is not akin to a probability
requirement, but it asks for more
than a sheer possibility that a
defendant has acted unlawfully.

Courts will grant a motion to dismiss for
failure to state a claim when applying the
qualified immunity defense if:

556 U.S. 662, 678 (2009) (internal
citation and quotation omitted); see also
Edwards v. Prime, Inc., 602 F.3d 1276,
1291 (11th Cir. 2010).

(1) from the face of the complaint,
(2) [the court] ... conclude[s] that
(even if a claim is otherwise
sufficiently stated), (3) the law
supporting the existence of that
claim—given the alleged
circumstances—was not already
clearly established, (4) to prohibit
what the government-official
defendant is alleged to have done,
(5) before the defendant acted.

B. Skolweck's § 1983 Claims Against
Johnson, Feldner, Franklin, and
Draeger
Skolweck asserts claims under § 1983
against Johnson, Feldner, Franklin, and
Draeger for alleged retaliation in violation of
Skolweck's First Amendment right to free
speech. For a public employee 3 to maintain
a claim of retaliation for protected speech
under the First Amendment he must show
that:

Marsh v. Butler Cnty., Ala., 268 F.3d 1014,
1023 (11th Cir. 2001) (en banc).

(1) the employee's speech is a matter
of public concern; (2) the
employee's First Amendment
interest in engaging in the speech
outweighs the employer's interest in
prohibiting the speech to promote the
efficiency of public services it
performs through its employees; and
(3) the employee's speech played a
"substantial part" in the employer's
[adverse employment action].

And although the court must accept as
true all of the factual allegations in a
complaint, those allegations must be
sufficient "to raise a right to relief above the
speculative level." Twombly, 550 U.S. at
555. Courts "are not bound to accept as true
a legal conclusion couched as a factual
allegation." Id. (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)).
The Court in Ashcroft v. Iqbal further
explained the required level of specificity:

Anderson v. Burke Cnty., Ga., 239 F.3d
1216, 1219 (11th Cir. 2001) (quoting Bryson

A claim has facial plausibility
[and thus states a claim] when the
plaintiff pleads factual content that

3 Defendants do not contest that Skolweck was a
public employee. See, e.g. Doc. 4 at 3-5.

3

employee spoke as a citizen on a matter of
public concern. Connick v. Myers, 461 U.S.
138, 147-48 (1983). At bottom, the "First
Amendment invests public employees with
certain rights, [but] it does not empower
them to 'constitutionalize the employee
grievance.'" Garcetti, 547 U.S. at 420
(quoting Connick, 461 U.S. at 154).

v. City of Waycross, 888 F.2d 1562, 1565
(11th Cir. 1989)).
Nevertheless, if no clearly established
law exists to show that Skolweck spoke as a
citizen on a matter of public concern, and
that the balance of interests favors
Skolweck, the Court must find that
Defendants possess qualified immunity and
dismiss Skoiweck's § 1983 claims. See
Marsh, 268 F.3d at 1023. The Court
considers each prong of Anderson in turn.

Here, Skolweck—a mechanic with the
City government at the time of the events
complained of—alleges that he notified
three City officials of his supervisor's abuse
and waste of City resources. See Doc. 1-6 at
3. Although Skolweck makes no allegations
as to specific duties of his job, common
sense indicates that the professional
responsibilities of a mechanic very likely do
not include general oversight of resource
usage by government officials. Such
oversight is much more likely to come from
other departments, or citizens. In any
event, Skolweck's allegations allow the
Court to reasonably infer that he spoke as a
citizen—that is, he did not speak pursuant to
his duties as a mechanic. See Iqbal, 556
U.S. at 678; Garcetti, 547 U.S. at 421.

1. Matter of Public Concern
Skolweck's complaint alleges sufficient
facts to show that clearly established law
supports his claim that he spoke as a citizen
when he complained about a matter of
public concern—Griffin's abuse and waste
of City resources.
As part of the first prong of the First
Amendment retaliation inquiry outlined in
Anderson, courts must ask if "the employee
spoke as a citizen on a matter of public
concern." Garcetti V. Ceballos, 547 U.S.
410, 418 (2006) "[W]hen public employees
make statements pursuant to their official
duties, the employees are not speaking as
citizens for First Amendment purposes, and
the Constitution does not insulate their
communications from employer discipline."
Id. at 421. Speech made pursuant to job
duties is "speech that owes its existence to a
public employee's professional
responsibilities." Id.

Defendants argue that Skolweck's
disclosure "concerned the subject matter of
Plaintiff's employment, and inferredly [sic]
owed its existence to the Plaintiff's
performance of his job duties." Doc. 4 at
11. That argument not only ignores the
Supreme Court's admonition that subject
matter is nondispositive, see Garcetti, 547
U.S. at 421, but also misrepresents
Skolweck's speech. While Skolweck may
not have known of Griffin's waste but for
being a mechanic employed by the City, the
actual subject matter of the statement-resource waste—indicates that Skolweck's

"Formal job descriptions do not control
[that] inquiry. . . ." Abdur-Rahman v.
Walker, 567 F.3d 1278, 1283 (11th Cir.
2009). Instead, courts should look to "the
content, form, and context of a given
statement," to determine whether an
4

community). And Skolweck's reporting of
such waste did nothing to further his own
private interest. See Morgan v. Ford, 6 F.3d
750, 754 (noting that the relevant inquiry is
"whether the purpose of [the] speech was to
raise issues of public concern . . . or to
further ... private interest[s].").

speech had nothing to do with his official
responsibilities as a mechanic, either in form
or substance.
Moreover, simply possessing knowledge
by virtue of one's public employment does
not convert speech based on that knowledge
into a kind made pursuant to job duties. See
id. (citing Pickering, 391 U.S. at 572 (noting
that teachers are the people most likely to
possess information relevant to education
funding decisions and thus must "be able to
speak out freely on such questions without
fear of retalia[tion].")). Like the teachers in
Pickering, whose jobs brought them close to
the information they reported, Skolweck
was a "member[] of a community most
likely to have" information about the use of
public resources by people in his
department. Pickering, 391 U.S. at 572.
Skolweck's speech owed its existence to his
having the job he had—i.e., he would not
have known about Griffin's waste had he
worked for Starbucks—but that alone does
not transform it into speech made pursuant
to job duties. Also like the teachers in
Pickering, Skolweck should be free to speak
without fear of retaliation about such
matters.

Unlike the plaintiff in Morgan, who filed
a sexual harassment claim against her
supervisor and whose private interests thus
stood to benefit from her own speech,
Skolweck's complaint held no possibility of
personal benefit; the only benefit to accrue
to Skolweck would have been in his
capacity as taxpayer, should his complaint
have helped to eliminate waste of
government resources. Such a benefit inures
to all citizens and therefore does not
implicate a private interest sufficient to strip
Skolweck's speech of its First Amendment
protections.
Pickering, Connick, Garcetti, Anderson,
Bryson, and Morgan together constitute
clearly established law indicating that an
adverse employment action taken in
response to a public employee's reporting of
abuse and waste of public resources is a
violation of the First Amendment actionable
under § 1983. "[E]ven though the very
action in question has [not] previously been
held unlawful[,]" the Supreme Court has
found that "a general constitutional rule
already identified in the decisional law may
apply with obvious clarity to the specific
conduct in question." Akins v. Fulton Cnty.,
Ga., 420 F.3d 1293, 1307 (11th Cir. 2005)
(quoting Hope, 536 U.S. at 741)).

Lastly, abuse and waste of government
resources undoubtedly are matters of public
concern. Looking to the "content, form, and
context" of Skolweck's speech, the Court
readily determines that a government
employee's waste of resources bears little
resemblance to a private matter. See
Connick, 461 U.S. at 147. Waste of
government resources is of grave concern to
the community. See id. at 146 (stating that
employee expression enjoys little protection
if it relates to matters of concern to the

Such is the case here. Pickering and its
progeny stand in large part for the
5

proposition that the First Amendment
protects whistleblower speech by citizens.
See, e.g., Bryson, 888 F.2d at 1566 ("[A]
core concern of the first amendment is the
'whistle-blower'
the
protection
of
attempting to expose government
corruption."). Skoiweck reported the waste
of resources by his immediate superior to
City officials. See Doc. 1-6 at 3. The
decisional law of the Eleventh Circuit and
Supreme Court put Johnson, Feidner,
Franklin, and Draeger on notice that
demoting and harassing Skolweck because
of his report constituted a violation of the
First Amendment. Since clearly established
law supports Skoiweck's claim that he spoke
as a citizen on a matter of public concern,
the Court proceeds to evaluate the balancing
of interests element.
2. Balancing of Interests
Clearly established law also supports
Skoiweck's claim that the balance of
interests supports protecting his speech in
this case. The second element of a
retaliation claim requires the plaintiff to
"show that his First Amendment interests, as
a citizen . . . outweigh the interest of the
state, as an employer." See Anderson, 239
F.3d at 1220; see also Pickering v. Bd. of
Educ., 391 U.S. 563, 568 (1968). "In
performing the balancing, the [employee's
speech] will not be considered in a vacuum;
the manner, time, and place of the
employee's expression are relevant, as is the
context in which the dispute arose." Rankin
v. McPherson, 483 U.S. 378, 388 (1987).
Some pertinent considerations include
whether the speech (1) "impairs discipline
by superiors"; (2) "has a detrimental impact

on close working relationships for which
personal loyalty and confidence are
necessary"; (3) "impedes the performance of
the speaker's duties"; or (4) "interferes with
the regular operation of the enterprise." Id
(citing Pickering, 391 U.S. at 570-73). Such
considerations "make apparent that the state
interest element. . . focuses on the effective
functioning of the public employer's
enterprise." Id.
Skolweck's complaint did not negatively
affect the functioning of the City's public
works department. In fact, the reporting of
waste likely increases the effective
functioning of public enterprises and in any
event is constitutionally protected speech as
defined by clearly established law. See, e.g.,
Garcetti, 547 U.S. at 425 ("Exposing
governmental . . . misconduct is a matter of
considerable significance."); Butterworth v.
Smith, 494 U.S. 624, 632 (1990)
(recognizing that "publication of
information relating to alleged governmental
misconduct" lies "at the core of the First
Amendment."); Akins, 420 F.3d at 1300
(noting "that the Constitution protects
speech regarding governmental
misconduct."); Bryson, 888 F.2d at 1566
("[A] core concern of the first amendment is
the protection of the 'whistle-blower'
attempting to expose government
corruption."). So, although the case-by-case
nature of this inquiry does not always lend
itself to providing government officials with
notice of clearly established federal rights,
see Anderson, 239 F.3d at 1222, "no
reasonable person could believe that .
prong[] of the test had not been met [here]."
Marlin v. Baugh, 141 F.3d 1417, 1420 (11th

between speech and an adverse employment
action is one such circumstance. See Mize,
93 F.3d at 745 ("Where [an adverse
employment action] closely follows
protected activity, it is usually reasonable to
infer that the activity was the cause of the
adverse employment decision.").

Cir. 1998), abrogated on other grounds by
Akins, 420 F.3d at 1306-08..
3. Causation
Finally, Skoiweck's complaint satisfies
the causation element of Anderson requiring
the speech to be a substantial factor in
bringing about the adverse employment
action. See Anderson, 239 F.3d at 1219.
"Where causation is lacking, an employee's
claim of retaliat[ion] . . . must fail." Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739,
742 (11th Cir. 1996). Because causation is a
question of fact and this case is before the
Court on a motion to dismiss, Skoiweck
need only allege sufficient facts to allow for
a facially plausible inference that his
complaints about Griffin's waste were a
substantial factor in causing the adverse
employment actions. See Anderson, 239
F.3d at 1222 (noting that the causation
element is a fact question); lqbal, 556 U.S.
at 678 (requiring facial plausibility to
survive a motion to dismiss).

Skolweck's complaint pleads sufficient
facts to reasonably infer causation because
of the close temporal proximity between the
original complaint about Griffin and
Skoiweck's job title change and FLSA reclassification. Only sixteen days elapsed
between Skoiweck's speech and the first
alleged adverse employment action. See
Doc. 1-6 at 3. That miniscule gap in time is
alone sufficient to make out a facially
plausible claim that Skolweck's speech was
a substantial factor in causing the adverse
employment actions. See Bechtel Constr.
Co. v. Sec 'y of Labor, 50 F.3d 926, 934
(11th Cir. 1995) (finding an inference of
causation permissible when appellant
terminated carpenter approximately one
month after he complained about safety
procedures).

Skolweck alleges no direct facts4
indicating that his speech caused the adverse
employment actions. See Doc. 1-6 at 2-5.
"[P[urely circumstantial evidence,"
however, "taken in the light most favorable
to the plaintiff," can satisfy the burden to
show causation. Beckwith v. City of
Daytona Beach Shores, Fla., 58 F.3d 1554,
1565 (11th Cir. 1995). Temporal proximity

Because Skoiweck's complaint shows
that (1) he spoke as a citizen about a matter
of public concern; (2) his interest in
speaking outweighs the City's interests as an
employer; and (3) his speech played a
substantial role in causing the adverse
employments actions, the Court DENIES
Defendants' Motion to Dismiss with respect
to Skolweck's § 1983 claims against
Defendants Johnson, Feidner, Franklin, and
Draeger in their individual capacities.
Counts IV and V of the complaint survive.

Skolweck certainly alleges a causal connection
between his speech and demotion. See Doc. 1-6 at 6
(alleging Defendants took "retaliatory measures
against Plaintiff for voicing his concern about the
abuse and waste of public resources by . . . Griffin.").
But such allegations are legal conclusions and the
Court is accordingly not bound to accept them as true
when evaluating the motion to dismiss. See
Twombly, 550 U.S. at 555.

7

No public employer shall retaliate
against a public employee for
disclosing a violation of or
noncompliance with a law, rule, or
regulation to either a supervisor or
government agency, unless the
disclosure was made with knowledge
that the disclosure was false or with
reckless disregard for its truth or
falsity.

C. Skoiweck's § 1983 Claims Against
the Mayor and Council Members
Skolweck attempts to plead claims
against the Defendants under § 1983 for
"deliberate intent to harm through the
reliance on official policies and/or customs
of depriving . . . public employees, of the
right to free speech." Doc. 1-6 at 6.
Skoiweck makes no attempt to identify those
policies and customs. He merely alleges
legal conclusions regarding the Defendants'
actions pursuant to them. See Doc. 1-6 at 6.
Nowhere can the Court find factual
allegations sufficient to raise the right to
relief above a speculative level for claims
based on policy or custom. See Twombly,
550 U.S. at 555.

To establish a case of retaliation under
§45-1-4(d)(2) sufficient to survive a motion
to dismiss, a public employee must allege
facts showing that (1) the employer falls
under the definition of "public employer";
(2) the public employee disclosed a
"violation of or noncompliance with a law,
rule, or regulation" to a supervisor; (3) the
employee then suffered some adverse
employment action taken by the public
employer; and (4) there is a causal
relationship between (2) and (3). See
Forrester v. Ga. Dep 't of Human Sen's., 308
Ga. App. 716, 722 (2011).

Accordingly, the Court DISMISSES all
claims against all Defendants—whether in
their individual or official capacities—based
on City policies and customs. Also, because
Skoiweck pleads no facts regarding the
Mayor and council members relevant to §
1983 claims against those parties in their
individual capacities, any and all such
claims are DISMISSED.

Three months ago, the Georgia Court of
Appeals considered the interaction between
§ 45-1-4(b) and (d). That court found:

D. Skoiweck's Claims Under the
GWA

subsection (b) of the statute acts as a
limit on whistle-blower protection
provided under the statute, and that,
where the complaint about fraud,
waste, and abuse is made to a public
employer defined under OCGA § 451 -4(a)(4) as a state-funded local
governmental entity, whistle-blower
protection is limited to a complaint
related to a state-funded program or
operation under the jurisdiction of
the public employer.

Skoiweck also asserts claims against the
City and individual defendants under
O.C.G.A. § 45-14, the GWA. Doc. 1-6 at
5. Section 45-1-4(b) permits public
employers to "receive and investigate
complaints" from public employees
"concerning the possible existence of any
activity constituting fraud, waste, and abuse
in or relating to any state programs and
operations."
Section 45-1-4(d)(2) states
that:
8

Fulton Cnly. v. Colon, 730 S.E.2d 599, 602
(Ga. Ct. App. 2012).
After Colon, plaintiffs seeking to recover
under § 45-1-4 must plead facts sufficient to
allow a reasonable inference that the fraud
or waste at issue involved a state-funded
program. Id. at 604. The program,
however, "need not be of state origin." Id
Rather, it "must be funded at least in part by
the state." Id.
Skoiweck asserts claims under the GWA
against Defendants in their individual
capacities, and against the City. See Doc. 16 at 5 (Count I of the complaint). Skoiweck
also requests punitive damages against
Defendants as individuals.6
Id. at 5-6
(Count II). Finally, pursuant to § 45-14(t),
Skoiweck requests attorney's fees should he
prevail on his GWA claims. Id at 6 (Count
III).
As with Skolweck's § 1983 claims, the
Court first addresses Counts I-Ill as to
Defendants Johnson, Franklin, Feidner, and
Colon is an unreported decision. Plaintiffs correctly
point out that Georgia Court of Appeals Rule 33(b)
states that "[a]n unreported opinion is neither a
physical nor binding precedent." Although not
bound to follow Colon, the Court finds Colon's
interpretation of 45-1-4 persuasive. Because Colon
and this case share factual similarities and because
the requirements for stating a claim under the GWA
are a matter of state law, the Court declines to
substitute its judgment in place of the Georgia Court
of Appeals'.
6
To the extent that Skoiweck requests punitive
damages against the City, that request is denied.
"[A]n award of punitive damages against a
governmental entity is against public policy and is
thus impermissible as a matter of law." Groves v.
City of Atlanta, 213 Ga. App. 455, 458 (1994); see
also City of Newport v. Fact Concerts, Inc., 453 U.S.
247, 271 (1981) ("[A] municipality is immune from
punitive damages under 42 U.S. C. § 1983,");
Bunyon v. Burke Cniy., 306 F. Supp. 2d 1240, 1264
(S.D. Ga. 2004) (same).

Draeger. Second, the Court addresses the
same counts as to the Mayor and council
members.
1. Counts I-Ill Against Johnson,
Franklin, Feidner, and Draeger in
Their Individual Capacities
Skolweck fails to allege that Griffin's
waste and abuse of county resources "related
to a state-funded program" sufficient to
survive a motion to dismiss. See Colon, 730
S.E.2d at 602. Both here and in Colon, the
plaintiffs disclosed abuse and waste of
county resources to higher ups. Id. at 600;
Doc. 1-6 at 3. And in both cases, the
plaintiffs suffered adverse employment
actions. Colon, 730 S.E.2d at 600-01
(noting Colon's demotion after his
disclosure of abuse and waste of county
funds); Doc. 1-6 at 3-4 (detailing
Skolweck's demotion and harassment after
his disclosure of abuse and waste of City
resources). Both Skoiweck and Colon also
failed to allege that the abuse and waste they
complained of related to a "program funded
at least in part by the state." Colon, 730
S.E.2d at 604; see Doc. 1-6 (alleging only
that Griffin committed "abuse and waste of
City resources."). Skoiweck therefore fails
to state a claim under the GWA.
The Court, however, opts not to
immediately dismiss Skolweck' s GWA
claims. Although the Court need not sua
sponte grant a plaintiff leave to amend
"when the plaintiff, who is represented by
counsel, never filed a motion to amend nor
requested leave to amend," see Wagner v.
Daewoo Heavy Indus. Am. Corp., 314 F.3d
541, 542 (11th Cir. 2002), the Court, in the

Skoiweck alleges that "the City, by and
through Defendant[s]" Johnson, Feldner,
and Franklin changed Skoiweck's job title
and reclassified Skolweck's position under
the FLSA. See id. at 3. He also alleges that
the City "ratified the actions of" Johnson,
Franklin, Feldner, and Draeger. Id. at 4.
Nowhere does Skoiweck allege any facts
relating to the Mayor and council members
in their individual capacities. The only
factual allegations Skoiweck makes relating
to the Mayor and council members appear to
be against them in their official capacities, in
which case the claims are better
characterized as against the City. See Hafer
v. Melo, 502 U.S. 21, 25 (1991) ("Suits
against state officials in their official
capacity . . . should be treated as suits
against the State."). Counts I-Ill against the
Mayor and council members of the City in
their individual capacities are therefore

interest of justice, chooses to do so here.
See FED. R. Civ. P. 15(a)(2).
Skoiweck has yet to amend his
complaint even once. And the Georgia
Court of Appeals only decided Colon—the
authority establishing the pleading
requirement for GWA claims Skoiweck fails
to satisfy—on July 13, 2012, barely three
weeks before the initial filing of the
complaint in this case. Colon, moreover, is
not binding precedent on the Georgia courts,
much less this court. To penalize Skoiweck
and his counsel for failing to properly
predict this Court's decision to follow Colon
would be inappropriate under the
circumstances. Accordingly, the Court
GRANTS Skolweck leave to amend his
complaint as to Counts I-Ill against
Defendants Johnson, Feidner, Franklin, and
Draeger. Skolweck's amended complaint
must be filed with the Court within fourteen
(14) days of the entry of this order.

DISMISSED.
IV. CONCLUSION

Because the Court grants Skoiweck
leave to amend, it does not address
Defendants' argument that § 45-1-4 does not
permit claims against defendants in their
individual capacities. See Doc. 4 at 3.
Defendants are free to raise that issue again
after Skoiweck amends his complaint.

Skolweck alleges sufficient facts to
make out a First Amendment retaliation
claim under 42 U.S.C. § 1983 only against
Defendants Johnson, Feldner, Franklin, and
Draeger in their individual capacities. The
Court therefore DENIES Defendants'
Motion to Dismiss for Failure to State a
Claim with respect to those four Defendants
and claims, and DENIES their defense of
qualified immunity.

2. Counts 1-111 Against the Mayor and
Council Members in Their Individual
Capacities
Skolweck also appears to assert claims
under the GWA against the Mayor and
council members in their individual
capacities. See Doc. 1-6 at 5-6. As with his
§ 1983 claims against those Defendants,
Skolweck's allegations fail to state a claim
under the GWA.

The Court GRANTS Defendants'
Motion to Dismiss Skolweck's § 1983
claims as to the Mayor and council members
in their individual capacities and therefore
DISMISSES those claims. The Court also

10

DISMISSES Skolwecks
against the City.

§ 1983 claims

This /lay of October 2012.

1ZY voe74^9^^

As to his GWA claims against Johnson,
Feldner, Franklin, and Draeger, Skoiweck
fails to plead an essential element of a claim.
But, because the interests of justice so
require, see FED. R. Civ. P. 15(a)(2), the
Court GRANTS Skoiweck leave to amend
his complaint on Counts I-IT1 against those
four defendants in their individual
capacities. Skolweck has until November 3,
2012—the deadline for motions to amend
contained in the Scheduling Order—to
amend his complaint. See Doc. 15. If
Skoiweck fails to amend his complaint
within that timeframe, the Court will dismiss
his GWA claims against all Defendants and
the City.

'
B. AVA T ED NFIELD, JUD
UNITED STATES DISTRICT OURT
SOUTHERN DISTRICT OF GEORGIA

Skolweck, however, fails to allege any
facts supporting his GWA claims against the
Mayor and council members in their
individual capacities. Accordingly, the
Court DISMISSES all GWA claims against
the Mayor and council members in their
individual capacities.
The claims and parties remaining are as
follows: (1) Skotweck's § 1983 claims
against Defendants Johnson, Feidner,
Franklin, and Draeger in their individual
capacities; and (2) Skoiweck's GWA claims,
should he choose to amend his complaint.
Lastly, the Court LIFTS the stay of
discovery it granted on October 5, 2012.
Doe. 12.

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