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

Filing 21

ORDERED that counts I and III against any and all Defendants in their individual capacities are dismissed. But counts I and III as against the City survive, and Defendants' motion in this regard is denied. Count II is dismissed as to all Defendants. Signed by Judge B. Avant Edenfield on 12/3/2012. (loh)

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

4: 12-cv-227

.

GARDEN CITY, GEORGIA, 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 Counts I Through III of Second
Amended Complaint Against Defendants
Johnson, Feidner, Franklin, and Draeger for
failure to state a claim. ECF No. 19.
In this motion to dismiss, Defendants
argue the Georgia Whistleblower Act
("GWA") does not provide for claims against
individuals. Id. at 4-7; see O.C.G.A. § 45-1-4
(Supp. 2010). Therefore, Defendants assert,
Counts I and III should be dismissed against
Johnson, Feldner, Franklin, and Draeger in
their individual capacities. Id.
Skoiweck claims that because the GWA
allows public employees to seek "'[a]ny other
compensatory damages allowable at law[,]"
Georgia's statute waiving immunity for
government officers in certain situations'
O.C.G.A. § 36-334 provides that "[m]embers of the
council and other officers of a municipal corporation
shall be personally liable to one who sustains special

provides for liability against Johnson,
Feidner, Franklin, and Draeger in their
individual capacities. See ECF No. 20 at 2-3
(citing O.C.G.A. § 45-1-4(e)(2)(E)). He also
claims punitive damages are allowed because
they can attach to compensatory damages,
which § 36-33-4 provides. See ECF No. 20 at
3.
The Court agrees with Defendants that the
GWA does not provide for claims against
individuals. Nor are punitive damages
appropriate under the GWA. But Defendants'
motion asks for a bit too much. So, for the
following reasons, the Court GRANTS IN
PART and DENIES IN PART Defendants'
motion.
II. BACKGROUND2
After the Court granted in part and denied
in part Defendants' first motion to dismiss,
see ECF No. 16, Skolweck filed his second
amended complaint. ECF No. 17. Count I
asserts claims under the GWA. See id. at 6, ¶
39. Claim II seeks punitive damages for
violations of the GWA. 3 Id. at 6. And Count
III requests attorney's fees pursuant to § 45-14(t) should Skoiweck prevail on his GWA
claims. Id. at 6-7. Defendants now seek to
have the Court dismiss those three counts. 4
III. ANALYSIS
damages as the result of any official act of such
officers if done oppressively, maliciously, corruptly, or
without authority of law."
2
For the underlying facts in this case, the Court refers
readers to the facts section of its Order on Defendants'
first motion to dismiss. See ECF No. 16 at 1-2.
The language of Count II does not state that it seeks
punitive damages under the GWA. But since
Skolweck also requests punitive damages stemming
from the § 1983 violations he asserts, see ECF No. 17
at 9, 1 56, the Court concludes Count 11 must refer to
the GWA.
The amended complaint pleads additional counts that
are not the subject of the instant motion to dismiss.

The Court's analysis first sets out the
relevant portions of the GWA, and then
evaluates the propriety of Counts I-Ill.

action in superior court."
Id. at (e)(l)
(emphasis added). Plaintiffs may seek a
variety of relief "[fln any action brought
pursuant to [(e)(l)]," including "[a]y
compensatory damages allowable at law." Id.
at (e)(2)(E).

A. The GWA
The GWA prohibits public employers
from retaliating against public employees "for
disclosing a violation of or noncompliance
with a law, rule, or regulation to either a
supervisor or a government agency."
O.C.G.A. § 45-14(d)(2). Nor may a public
employer retaliate for a public employee
"objecting to, or refusing to participate in, any
activity, policy, or practice of the public
employer that the public employee has
reasonable cause to believe is in violation of
or noncompliance with a law, rule, or
regulation." Id. at (d)(3). Crucially, the
GWA only protects public employees from
public employers—not from other employees
or individuals.

B. Counts I-ILL
1. Count
Defendants' motion to dismiss argues that
the GWA does not provide a cause of action
against individuals, only public employers.
ECF No. 19 at 7. In response, Skoiweck
asserts that Defendants are liable in their
individual capacities under the GWA because
§ 45-1 -4(e)(2)(E) implicitly incorporates
O.C.G.A. § 36-33-4 and its provision of
individual liability for certain acts by
government officials. See ECF No. 20 at 2.
Skolweck's argument is unpersuasive.
The GWA provides a cause of action for
public employees "who ha[ve] been the object
of retaliation in violation of this Code
section." O.C.G.A. § 45-1-4(e)(1) (emphasis
added). Only in "action[s] brought pursuant
to [(e)(1)]," however, can a court order "any.
compensatory damages available at law."
Id. at (e)(2). So, for the relief Skolweck
claims includes § 36-33-4 and its allowance
for individual liability to be available, he must
bring suit for retaliation that violates the
GWA.

The GWA also defines 'public employer,'
'public employee,' 5 and 'retaliation.'
"Public employer' means the executive,
judicial, or legislative branch of the state.
or any local or regional governmental entity
that receives any funds from the State of
Georgia or any state agency." Id. at (a)(4).
And retaliation refers to "any . . . adverse
employment action taken by a public
employer against a public employee in the
terms or conditions of employment for
disclosing a violation of or noncompliance
with a law, rule, or regulation to either a
supervisor or government agency." Id (a)(5).

But the GWA only prohibits retaliation by
public employers. Id at (d)(2), (3). And the
definition of 'public employer' necessarily
excludes individuals from its ambit. See id. at
(a)(4). In fact, retaliation by its very
definition is something only public employers
can engage in. See id. at (a)(5). Simply put,
there is no cause of action against individuals

In providing a private right of action, the
GWA states that "[a] public employee who
has been the object of retaliation in violation
of this Code section may institute a civil
The parties do not dispute that Skoiweck qualifies as
a public employee. See, e.g., ECF No. 4 at 3-5.

2

1, to the extent Count III requests fees for
violations of the GWA by individuals, it is
DISMISSED. But any request in Count III
for attorney's fees predicated on GWA claims
against the City survives. Defendants' motion
as it regards the City's inclusion in Count III
is DENIED.

under the GWA and therefore no mechanism
by which to incorporate O.C.G.A. § 36-33-4.
To the extent that Skoiweck asserts GWA
claims against any defendant in his or her
individual capacity those claims are
DISMISSED.
The Court notes, however, that Count I of
Skolweck's Second Amended Complaint only
purports to hold "the City. liable for any or
all of the types of relief set forth in O.C.G.A.
§ 45-14(e)(2)(A-E)." See ECF No. 17 at 6, ¶
39 (emphasis added). And the City is
arguably a public employer, unlike individual
defendants. More importantly, Skoiweck's
complaint adequately pleads facts supporting
that conclusion. Count I against the City
therefore survives and Defendants' request for
dismissal is DENIED.

IV. CONCLUSION
Counts I and III against any and all
Defendants in their individual capacities are
DISMISSED. But Counts I and III as against
the City SURVIVE, and Defendants' motion
in this regard is DENIED. Count II is
DISMISSED as to all Defendants.

. .

42e-,~~

This.? day ofNeawsber 2012.

2. Count II

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B. AVAN i EbEfqFIEL D UD9
9 GE

Count II requests punitive damages for
violations of the GWA "to deter future similar
conduct by Defendants." ECF No. 17 at 6.
Skoiweck argues that because compensatory
damages under the GWA are available against
individuals, punitive damages may attach as
well. See ECF No. 20 at 3.

UNITED STATES DISTRICT CO RT
SOUTHERN DISTRICT OF GEORGIA

As the Court noted in its Order of October
18, 2012, punitive damages cannot be
recovered against the City. See ECF No. 16
at 9. And since the GWA will not support
claims against individuals, any request for
punitive damages against individual
defendants based on violations of the GWA is
also inappropriate. Count II is accordingly
DISMISSED.
3. Count III

Count III seeks attorney's fees allowed to
prevailing public employees by O.C.G.A. §
45-1-4(1). ECF No. 17 at 6. Similar to Count
3