Harris v. Pierce County, Georgia et al
Filing
50
ORDER granting in part and denying in part second 41 Motion to Dismiss and the first 6 Motion to Dismiss is moot. Signed by Chief Judge Lisa G. Wood on 8/14/2014. (ca)
R the Eniteb tate flitritt Court
for the boutbern 0itritt of deorgia
aptro aibiion
DEBRA L. HARRIS,
Plaintiff,
VS.
PIERCE COUNTY, GEORGIA; PIERCE
COUNTY BOARD OF COMMISSIONERS;
PAUL CHRISTIAN, individually
and in his official capacity as
County Manager; JAMES SPIVEY,
individually and in his
official capacity as Emergency
Medical Services Director;
EDWARD CADY, individually and
in his official capacity as
Human Resources Director;
OKEFENOKEE EMERGENCY MEDICAL
SERVICE, INC.; DEREK MALLARD,
individually and in his
official capacity as
Owner/Director of Okefenokee
Emergency Medical Service,
Inc.,
CV 513-82
Defendants.
ORDER
Presently before the Court are Defendants Mallard and
Okefenokee Emergency Medical Service, Inc.'s Motion to Dismiss
Plaintiff's Complaint, Dkt. No. 6, and their Motion to Dismiss
Plaintiff's Amended Complaint, Dkt. No. 41. Upon due
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consideration, Defendants' first motion is MOOT, and their
second motion is DENIED IN PART and GRANTED IN PART.
I. Factual Background
A. History Prior to Problems
This case is predicated upon county officials allegedly
retaliating against a government employee for speaking against
privatization of a government agency.' Plaintiff Debra Harris
worked for Pierce County for more than six years—from March 6,
2006 until August 27, 2012. IJkt. No. 36 ¶ 15. During her
tenure, she worked as a secretary and billing clerk for the
Pierce County Emergency Medical Services ("County EMS") and as a
secretary for multiple other county agencies. Id.
At all times while employed with the County, Plaintiff was
qualified and able to perform the essential job functions for a
secretary and billing clerk. Id. ¶ 16. In her capacity as the
billing clerk for County EMS, Plaintiff was responsible for
intake and processing of the "run information" necessary to bill
patients or their insurers. Id. She was solely responsible for
transmitting the "run information" to EMS Consultants, a third
party that carried out the actual billing. Id. Plaintiff's
position also required her frequently to perform quality
assessments on the personal information provided for billing
For the purposes of Defendants' motions to dismiss, the allegations in
Plaintiff's Amended Complaint, Dkt. No. 36, are taken as true. McKinley v.
Fed. Home Loan Mortg. Corp., No. CV 212-124, 2013 WL 4501327, at *2 n.1 (S.D.
Ga. Aug. 22, 2013).
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purposes. Id. During Plaintiff's employment with Pierce
County, and up until August 8, 2012, Plaintiff's immediate
supervisor was Ken Justice, who was Director of County EMS. Id.
¶ 17.
B. New County Leadership and Talk of Privatization
On July 5, 2011, Defendant Paul Christian became County
Manager for Pierce County. Id. ¶ 18. Christian began to
explore the possibility of privatizing County EMS. Id. ¶ 19.
Pursuant to that "possibility," he had discussions with
Defendant Derek Mallard. Id. Mallard owns Defendant Okefenokee
Emergency Medical Service, Inc. ("Private EMS") and wanted to
contract with Pierce County to assume private operation of
County EMS. Id. These discussions concerned not only the
potential for a takeover, but what benefits Pierce County would
receive in return. 2 Id. ¶ 24.
In October 2011, Christian, while speaking to the local
Rotary Club, espoused his desire to privatize County EMS, which
a local paper reported. Id. ¶ 18. In response, Justice
2
Plaintiff has attached exhibits to her Complaint to support the existence
and substance of these conversations. For example, on September 13, 2011,
Mallard and Christian exchanged emails. Dkt. No. 36-2, Ex. B. Mallard
concluded the exchange with an email that noted his availability if he needed
to "answer any questions or if [Christian felt that Mallard] need[ed] to meet
with anyone before [Mallard] le[ft]." Id. Moreover, in a deposition of
Edward Cady, Pierce County's Human Resources Director, conducted pursuant to
a related case, Cady testified that he overheard conversations between
Christian and Mallard in which they discussed Private EMS's potential
services and privatizing County EMS. Dkt. No. 36-4, Ex. D, at 76, 80-82.
Cady also testified that Christian wanted to discuss privatization and meet
outside of Pierce County, assumingly because Christian "didn't want to be
seen." Id. at 80-81.
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expressed his vehement opposition to the plans for
privatization. Id. ¶ 20. On October 5, 2011, Mallard emailed
Christian and said, "I wanted to drop you a quick line and let
you know I am back in town. I saw the article in the paper. I
guess Ken [Justice] is getting nervous. If you need anything
from me just let me know." Dkt. No. 36-3, Ex C.
C. Initial Opposition to Privatization and Removinci Justice
On November 22, 2011, Defendant Pierce County Board of
Commissioners conducted a work session meeting.
¶ 21.
Dkt. No. 36
There, Dave Wills, an agent of the Association County
Commissioners of Georgia, pitched conducting an assessment of
County EMS. Id. The proposed assessment
would evaluate County
EMS's finances and operation, which would lead to
recommendations meant to improve County EMS's operational
efficiency and economy. See Id. On December 6, 2011, the Board
of Commissioners approved the proposed evaluation and agreed
that, pending the completion of the state evaluation, there
would be no decisions about privatizing County EMS. 4 Id. ¶ 22.
In February 2012, at a Board of Commissioners meeting,
Christian unsuccessfully attempted to remove Justice from
certain positions of authority. Id. ¶ 23. A large crowd of
The assessment would be conducted by the Georgia Office of Emergency Medical
Services and Trauma. Dkt. No. 36 ¶ 21.
The state evaluation did not occur until June 24-27, 2012. Dkt. No. 36
¶ 22.
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fire personnel, EMS personnel, and others appeared at the
meeting to support Justice. Id. Plaintiff was also there. Id.
To several individuals in attendance, she expressed her support
for Justice, her opposition to his removal, and her opposition
to privatizing County EMS. Id. On several additional
occasions, Plaintiff communicated to Defendant James Spivey, a
County EMS employee, her opposition to plans for privatization.
Id. ¶ 25.
D. August 8th and Justice's Suspension
On the morning of August 8, 2012, Christian placed Justice
on administrative leave from his position as Director of County
EMS, purportedly for pretextual reasons. Id. ¶ 26. Upon
learning of this, Plaintiff told Spivey and Leonard Roberts, the
County's 911 Director, about her objections to Justice's
suspension. Id. She continued to express her objections—in the
presence of Spivey and Edward Cady, Pierce County's Human
Resource Director—as Justice was escorted by law enforcement out
of County EMS's office. Id. As Justice was escorted, Plaintiff
hugged his neck. Id.
Immediately after Justice's suspension, Christian sent
Mallard and other Private EMS employees to County EMS's building
with instructions "to evaluate the situation, see if we have any
problems and let me know." Id. ¶ 28. Thus, Private EMS and its
employees were "given free access" to County EMS's records
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related to Plaintiff's job duties, despite neither Mallard nor
Private EMS having a formal relationship with Pierce County.
Id.
That afternoon, Christian organized a meeting with several
County EMS employees, including Plaintiff. See id. ¶ 27.
During it, Christian threatened Plaintiff and others by saying
that "he could privatize EMS in 15 minutes if [the employees]
didn't like what was going on." Id. Christian then introduced
Spivey, with whom Plaintiff had just earlier been speaking. Id.
Spivey had been informed "a few days before" about Justice's
imminent suspension and was announced as the interim Director of
County EMS. Id. During the announcement, Plaintiff became
emotionally upset and began to cry, and she left the meeting to
go into the bathroom. Id. The finance director for the Board
of Commissioners, Amy Hitt, followed Plaintiff outside, where
Plaintiff again expressed her disagreement with Justice's
suspension. Id. Before and after Spivey was promoted, Private
EMS was making decisions for County EMS; Christian had told
Spivey "to do whatever Derek Mallard told him to do." See Dkt.
No. 36-4, Ex. D, at 85.
E. Meetings the Following Two Days
The morning after Justice's suspension, Christian held oneon-one meetings with Plaintiff and other County EMS employees,
whom were forced to attend. Dkt. No. 36 ¶ 29. As Plaintiff
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entered the office for her meeting, Christian remarked, "So I
guess you're having a problem with all of this, huh?" Id. When
Plaintiff admitted to opposing Justice's suspension, Christian
lifted his cell phone and "threatened Plaintiff by saying that
he could privatize EMS with one phone call." Id. Later that
day, Plaintiff saw Spivey clearing out Justice's office. Id.
The next day, Plaintiff was required to attend another
meeting with Christian. Id. ¶ 30. Cady, Spivey, Roberts, and
County Commissioner Bill Cselle were also there. Id. During
this meeting, which concerned changes at County EMS, Christian
commented "that as to any employees who did not agree with any
of the changes being made, 'get rid of the troublemakers.'" Id.
F. Mallard's Visit to County EMS
A week after Justice was suspended, Mallard visited County
EMS's office to meet with Spivey. Id. ¶ 31. When he entered
the building, he approached Plaintiff at her desk and asked
about her job duties and what billing programs she used. Id.
Afterward, Mallard met privately with Spivey for approximately
three hours, and Spivey toured Mallard around the building. Id.
Later, Plaintiff expressed her concern to Spivey about losing
her job, which was based on Spivey's three-hour meeting with
Mallard. Id.
Two days later, on August 17, Plaintiff was required to
attend another meeting in Christian's office, which was also
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attended by Spivey, Roberts, and Niki Varnes, Roberts's
secretary and Spivey's girlfriend. Id. ¶ 32. Christian asked
for each person's opinion of the changes taking place. Id.
When it was Plaintiff's time to speak, she became emotional.
Id. Spivey patted her hand and told her to be truthful, to
which Plaintiff politely responded that Spivey did not want her
to be truthful. Id. She declined to share her feelings. Id.
G. Developments During Medical Leave
1. Miscellaneous Developments
Plaintiff was out of the office for medical reasons from
Tuesday, August 21, 2012, until the next Monday, August 27. Id.
¶ 33. During this time, Christian and Pierce County sent
Mallard and other Private EMS employees to sift through
Plaintiff's files, desk, records, and computer. Id. Also
during this time, Pierce County officially terminated Justice's
employment. Id.
2. Board of Commissioners and Hiring of Private EMS
On August 24, at a publicly held meeting of the Board of
Commissioners, Mallard "falsely alleged" that County EMS had
serious billing and coding problems, causing the loss of
$250,000 to $300,000 over the previous five years. 5 Id. ¶ 34.
Defendants attached the minutes of the August 24, 2012 meeting to their
initial motion to dismiss, along with a video of a September 4 meeting, see
infra Part I.I. Dkt. Nos. 6-1 to -2, Exs. 1-2. Under the incorporation-byreference doctrine, a court may consider documents attached to a 12(b) (6)
motion as part of the pleadings for the motion's purposes if (1) the
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Randy Hodges, an associate of Mallard and Private EMS employee,
also "falsely alleged" that improper coding resulted in
insurance carriers denying claims. Id. Plaintiff also claims
that Mallard insinuated that she was incompetent by "falsely
alleg[ing]" that Pierce County's third-party billing consultants
had closely watched County EMS's account over the past six
months. Id. ¶ 35. Plaintiff believes that these allegations at
the Board of Commissioners meeting stood contrary to the state
evaluation conducted in June, which made no finding of
wrongdoing in its preliminary assessment, and the fact that
"actual hands-on billing" was conducted by a third-party billing
contractor, EMS Consultants. Id. ¶ 36.
Spivey made similar allegations at the August 24 meeting,
in addition to stating that "hearsay" indicated that Justice had
instructed Plaintiff to delay collections in the weeks prior to
his suspension. Id. 191 38-39. Spivey mentioned that "some
staff members have hinted at leaving the department owing to the
complaint refers to the documents, (2) those documents are central to the
plaintiff's claim, and (3) the documents' content is undisputed. Brooks v.
Blue Cross & Blue Shield of Fla., No. 95-405-dy, 1995 WL 931702, at *5 (S.D.
Fla. Sept. 22, 1995); Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir.
1999); Horsley v. E'eldt, 304 F.3d 1125, 1134 (11th Cir. 2002). If these
conditions are met, "the defendant's attaching such documents to the motion
to dismiss will not require conversion of the motion into a motion for
Defendants' attachments
summary judgment." Brooks, 1995 WL 931702, at *5
satisfy the prerequisites to be considered without converting their motion
into one for summary judgment. In contrast, the Court declines to consider
documents—some of which were also attached to Plaintiff's amended complaint,
and some of which were not—attached to Plaintiff's response to Defendants'
first motion, although the Court notes that their exclusion does not affect
the ultimate disposition of Defendants' motion. See Dkt. Nos. 26-1 to -9.
9
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situation with Mr. Justice and the talk of privatizing the
department." Dkt. No. 6-1, Ex. 1, at 1. Christian then said
that if employees "are lying, stealing, cheating or covering up,
we don't want them" and that "if we need help staffing the
department, [Private EMS] is willing to provide employees to
fill those gaps." Id. at 2.
Plaintiff believes that Mallard, Hodges, and Spivey alleged
these purported problems to persuade the Board of Commissioners
to hire Private EMS as a consultant for County ENS. Dkt. No. 36
¶91 36, 38. Indeed, at the conclusion of the meeting, Pierce
County hired Mallard and Private EMS as consultants to
"straighten out" billing. Id. 9191 37, 54.
3. Varnes's Warning
The same evening, Varnes texted Plaintiff to warn her not
to be alarmed when Plaintiff returned to work the next Monday to
find Private EMS staff sitting at Plaintiff's desk. Id. 91 40.
Plaintiff called for clarification, at which point Varnes
explained that Pierce County had hired Mallard and Private EMS
for billing consulting. Id. Plaintiff expressed frustration
with hiring Defendants when County EMS already had a third-party
billing consultant. Id.
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H. Plaintiff's Return and Termination
When Plaintiff returned to work on August 27, 2012, Private
EMS employees were at County EMS's office. Id. ¶ 41. Cady
entered the office and asked to speak with Plaintiff in Spivey's
office. Id. Cady asked Plaintiff whether "she was ever told by
Ken Justice to 'not do the billing so the county would go
bankrupt.'" Id. Plaintiff said that suggestion was absurd.
Id. "Immediately thereafter, Defendant Cady informed Plaintiff
that she was terminated, and he handed her a separation notice." 6
Id.
Prior to Plaintiff's termination, she claims to have never
been warned about policy violations or that her job was in
jeopardy. Id. ¶ 42. To the contrary, she says that she had
been assured numerous times by Christian and Spivey that her job
was secure. Id.
I.
Post-Termination Accusations
At a Board of Commissioners meeting on September 4, 2012,
Mallard reported that there was $6,200 in undeposited checks
spread around a vault, which Plaintiff believes falsely implied
malfeasance by Plaintiff. Id. ¶ 44. According to Plaintiff,
6
The separation notice, dated August 27, 2012, is attached to Plaintiff's
Complaint. Dkt. No. 36-5, Ex. E. Its stated reason for separation is
"Violation of Operational Procedures: Failure to Report." Id. at 1. More
specifically, it said, "Employee failed to maintain billing and because of
this action resulted in a net loss of potential collections of $815K[.1
Employee failed to report that her supervisor gave directed [sic.) not to
bill." Id. at 2.
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there were "only a few checks neatly stacked on [her] desk that
could not be deposited until the Board of Commissioners' [s]
office had completed a conversion to allow EMS deposits to be
made directly into the county's General Fund rather than an
account designated solely for [County] EMS." Id. ¶ 45.
Mallard also reported that $818,000 remained uncollected
and even more was improperly billed. Id. ¶ 46. Plaintiff
claims, however, that all accounts were billed and collected, if
feasible, in accordance with County EMS's collection policy,
which was validated during the state evaluation. Id. ¶ 47.
Lastly, Mallard asserted other alleged falsities, such as him
having to submit 288 claims and County EMS being 2 months behind
in billing.
Id. 91 48.
J. Opinion from the State Evaluation
In October 2012, an opinion was issued from the state
evaluation conducted in June. Id. ¶ 57. It concluded that
County EMS "management had an effective collection policy and
procedure in place and followed that policy" and that its
policies and procedures for collecting money were "acceptable."
Id. 191 57, 59. It characterized the preexisting third-party
billing consultant as a "reputable outside firm" and said
outsourcing with them "is likely . . . the best option for
Pierce County EMS." Id. ¶ 58. Nevertheless, even after the
report was issued, Christian continued to allege that County EMS
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failed to bill more than $800,000 and that "it was a bookkeeping
nightmare." Id. ¶ 60.
K. Plaintiff's Alleaed Injuries
Based on these facts, Plaintiff generally alleges that
Spivey, Christian, Mallard, Cady, and Private EMS conspired to
defame Plaintiff to achieve Spivey's appointment as County EMS's
Director and Private EMS's hiring as a consultant. Id. ¶91 4950. In the several months following Plaintiff's termination,
Christian, Mallard, Cady, and Spivey continued to publicly and
falsely accuse Plaintiff of not billing at least $250,000 and
incorrectly billing approximately $800,000. Id. 191 55-56.
These accusations were published in the newspaper. Id. ¶ 61.
Plaintiff claims that these accusations stigmatized her and
severely damaged her reputation in the community. Id. 9191 56,
60. She claims that they impeded her from obtaining employment
equivalent to what she had at County EMS and that she has so far
failed to find a position as a billing clerk. Id. 9191 56, 62.
II. Procedural Background
On August 27, 2013, Plaintiff Debra Harris filed suit 7 in
federal court against seven defendants: Pierce County, Georgia;
the Pierce County Board of Commissioners; Paul Christian,
individually and in his official capacity; James Spivey,
individually and in his official capacity; Edward Cady,
' On June 18, 2013, Plaintiff provided ante litem notice to the Pierce County
Board of Commissioners pursuant to O.C.G.A. § 36-11-1. Dkt. No. 36-1, Ex. A.
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individually and in his official capacity; Okefenokee Emergency
Medical Service, Inc.; and Derek Mallard, individually and in
his official capacity as "Owner/Director" of Okefenokee
Emergency Medical Service, Inc. Dkt. No. 1. The suit asserted
seven claims. 8 Id. 19 65-107.
One month later, Defendants Mallard and Private EMS filed a
Motion to Dismiss pursuant to Rule 12(b) (6) of the Federal Rules
of Civil Procedure. Dkt. No. 6. This motion was fully briefed.
Dkt. Nos. 6; 26; 29; 37.
In April 2014, Plaintiff filed an amended complaint ("the
Complaint") . The Complaint asserts seven claims: a 42 U.S.C.
§ 1983 claim for violation of Plaintiff's rights to free speech,
due process, reputational liberty, and to be free from unlawful
interference with employment (Count 1); violation of the First
Amendment (Count 2); violation of Plaintiff's Fourteenth
Amendment Right to procedural due process (Count 3); deprivation
of her constitutionally protected reputation (Count 4);
conspiracy to deprive Plaintiff of her constitutional rights
(Count 5); intentional infliction of emotional distress (Count
6); and "defamation/slander/libel" (Count 7) . Dkt. No. 36
¶I 76-124. All but Count 3 are brought against Defendants
Mallard and Private EMS, among others.
This complaint contained a scrivener's error by labeling the seventh listed
count as "Count Eight." Dkt. No. 1, at 17.
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On May 7, 2014, Defendants Mallard and Private EMS filed a
second Motion to Dismiss pursuant to Rule 12(b) (6) of the
Federal Rules of Civil Procedure. 9 Dkt. No. 41. Defendants'
motion is fully briefed. Dkt. Nos. 41; 47; 48.
III. Legal Standard
When ruling on a motion to dismiss brought pursuant to Rule
12(b) (6) of the Federal Rules of Civil Procedure, a district
court must construe the plaintiff's complaint in the light most
favorable to the plaintiff and accept all well-pleaded facts
alleged in the complaint as true. Sinaltrainal v. Coca-Cola
Co., 578 F.3d 1252, 1260 (11th Cir. 2009). Although a complaint
need not contain detailed factual allegations, it must contain
sufficient factual material "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)).
Because the initial complaint and motion to dismiss have been superseded,
Defendants' first motion to dismiss is MOOT. Dkt. No. 6.
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IV. Discussion
A. Claims Under 42 U.S.C. § 1983
Plaintiff asserts three claims under 42 U.S.C. § 198310
against Mallard and Private EMS, among others: violation of the
First Amendment (Count 2); deprivation of constitutionally
protected liberty (Count 4); and conspiracy to deprive Plaintiff
of her constitutional rights (Count 5) . Dkt. No. 36 ¶I 79-89,
U-1a
1. State-Actor Analysis
Plaintiff's § 1983 claims require her to show that Mallard
and Private EMS acted under color of state law. See Boles v.
Riva, 2014 WL 1887376, No. 14-10065, at *1 (11th Cir. May 13,
2014) (per curiam) (stating that, under 42 U.S.C. § 1983, a
person may pursue private causes of action "for deprivations of
federal rights by persons acting under color of state law") . To
obtain relief, a plaintiff "must show (1) that the [defendants]
deprived her of a right secured under the Constitution or
federal law and (2) that the deprivation occurred under color of
state law." Willis v. Univ. Health Servs., Inc., 993 F.2d 837,
840 (11th Cir. 1993)
'° Although Count 1 is listed as a distinct claim in the Complaint, it merely
asserts an action generally under 42 U.S.C. § 1983 and serves as an umbrella
for Counts 2 through 5. See Dkt. No. 36 71 76-78. Therefore, Count 1 is
contingent upon the other claims' success and does not warrant individualized
analysis.
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"Section 1983 liability may only be imposed upon wrongdoers
who carry a badge of authority of a State and represent it in
some capacity, whether they act in accordance with their
authority or misuse it." Roman Catholic Diocese of Rockville
Ctr., N.Y. v. Inc. Vill. of Old Westburv, No.
09CV5195(DRH) (ETB), 2011 WL 666252, at *7 (E.D.N.Y. Feb. 14,
2011) (internal quotation marks omitted) . "Private actors may
be deemed to have acted under color of state law, but 'only in
rare circumstances.'" Boles, 2014 WL 1887376, at *1.
Courts employ a variety of tests to determine whether a
private party acted under color of state law:
(1) the public function test,["] which asks
whether the private actors were performing
functions traditionally the exclusive
prerogative of the state; (2) the state
compulsion test, which applies to situations
where the government coerced or
significantly encouraged the
unconstitutional actions at issue; and (3)
the nexus/joint action test, which applies
where the state and the private party were
joint participants in the common enterprise.
Id. In addition, a private person "may be held liable under
§ 1983 when he conspires with state actors to violate the
plaintiff's constitutional rights," which requires evidence of
11 Under the public function test, "state action is shown only when private
actors are given powers (or perform functions) that are traditionally the
exclusive prerogative of the State." Wellington v. Royal Caribbean Cruises,
Ltd., 511 F. App'x 974, 976 (11th Cir. 2013) (emphasis in original) (internal
quotation marks omitted). "[V]ery few activities fall within this category
[of activities], which includes activities like conducting elections and
performing necessary municipal functions." Id. (citing Flagg Bros., Inc. v.
Brooks, 436 U.S. 149, 158-59 (1978)).
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agreement between the state and private actors. Christman v.
Walsh, 416 F. App'x 841, 845 (11th Cir. 2011) (per curiam)
(citing Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283
(11th Cir. 2002))
a. Parties' Arguments
Plaintiff argues that Defendants acted under color of state
law as willful participants and joint actors with the county
officials to replace County EMS personnel—as evidenced by
Defendants' open access to County EMS's files, Defendants' false
accusations, the meetings and communications between Christian
and Mallard, and Christian directing Spivey to follow Mallard's
directions. Moreover, pursuant to Count 5, Plaintiff argues
that Mallard and Private EMS are liable as co-conspirators of
the alleged constitutional deprivations. 12
In contrast, Defendants argue that they were mere private
consultants who gave advice—which may or may not have been acted
upon—and that the Complaint is devoid of any allegations that
their consultation caused Plaintiff's termination. In support
of this argument, for example, Defendants note that Plaintiff's
termination predated Defendants' formal report of their
findings. According to Defendants, their actions, bid to
12
Although Plaintiff apparently also argues that the public function test is
satisfied by quasi-governmental authority being implied by Defendants renegotiating contracts on the County's behalf, she provides no basis for the
Court to conclude that such an activity is within the "exclusive" prerogative
of the state.
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privatize County EMS, and informal discussions with Christian
months before Plaintiff's termination do not equate to state
action. In essence, Defendants argue that Plaintiff is
attempting to inappropriately prove a conspiracy through
innuendo.
b. Nexus/Joint Action and Conspiracy Standards
Under the nexus/joint action test, "the governmental body
and private party must be intertwined in a symbiotic
relationship" that involves the specific conduct about which the
plaintiff complains. Focus on the Family v. Pinellas Suncoast
Transit Auth., 344 F.3d 1263, 1278 (11th Cir. 2003). Although
the "mere fact that a private actor contracts with a
governmental entity does not mean that every action taken by the
private actor can be attributed to the government," a sufficient
"symbiotic relationship" can exist if the state contractually
requires the private actor to take particular actions. Id. at
1278-79. Moreover, although some courts have held that mere
professional advice to the state cannot be considered state
action, R-Goshen LLC v. Vill. of Goshen, 289 F. Supp. 2d 441,
445 (S.D.N.Y. 2003), professional advice may support the
conclusion that the consultant is a state actor if the
consultant has a direct interest in the matter, Watson v. Grady,
No. 09-CV-3055 (KMK), 2010 WL 3835047, at *8 n.4 (S.D.N.Y. Sept.
30, 2010) . See also Inc. Vill. of Old Westbury, 2011 WL 666252,
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at *8_9 (holding that the close nexus test was not satisfied by
a private entity "merely" providing professional advice and
opinions to a municipality)
In a similar vein, to establish a conspiracy for § 1983's
purposes, "the plaintiff must plead in detail, through reference
to material facts, the relationship or nature of the conspiracy
between the state actor(s) and the private persons." Brown v.
Lewis, 361 F. App'x 51, 54 (11th Cir. 2010) (per curiam).
"[M]erely string[ing] together" adverse acts of individuals
"without showing contacts between the [private and state actors]
that could prove [they] had reached an understanding to violate
[a plaintiff's] rights" is insufficient to demonstrate the
existence of a conspiracy. Harvey v. Harvey, 949 F.2d 1127,
1133 (11th Cir. 1992) (internal quotation marks omitted).
"Wholly conclusory allegations of conspiracy must be
disregarded." Muhammad v. Bethel-Muhammad, No. 11-0690-WS-B,
2012 WL 1854315, at *7 (S.D. Ala. May 21, 2012) (quoting Am.
Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1294 (11th Cir.
2010)) (internal quotation marks and brackets omitted)
However, "conspiracies are by their very nature secretive
operations, and may have to be proven by circumstantial, rather
than direct, evidence." Adler v. Pataki, 204 F. Supp. 2d 384,
395 (N.D.N.Y. 2002) (quoting Pangburn v. Culbertson, 200 F.3d
65, 72 (2d Cir. 1999)) (internal quotation marks omitted)
AO 72A
(Rev. 8/82)
20
c. Application
Taking the Complaint's averments as true and drawing all
reasonable inferences in Plaintiff's favor, the Court finds that
the allegations satisfy the joint action test and make out an
actionable conspiracy to find that Private ENS and Mallard acted
under color of state law. Plaintiff has alleged more than
Private EMS and Mallard acting as mere consultants. Based on
the Complaint's allegations, Defendants' self-interest was in
play, as there was a monetary interest vis-à-vis the prospect of
contracting with the County for their services. Thus, the
allegations plausibly show a direct interest in providing a
reason for the Board of Commissioners to alter the provision of
EMS services from the status quo ante. Pursuit of this direct
interest would have been facilitated by the Complaint's
allegations that (A) Defendants had unfettered access to County
EMS files, despite the lack of a formal business relationship,
(B) Mallard had frequent contacts with Christian about
privatization, (C) Christian was apparently reluctant to be
transparent about these contacts, and (D) Spivey was directed to
follow Mallard's directions—again, despite the lack of a formal
business relationship. These allegations do not embody a normal
consultancy, but instead a symbiotic web between Christian,
Mallard, and Private EMS that colors Defendants with state
AO 72A
(Rev 8/82)
21
action. 13 Therefore, despite Mallard and Private EMS's statuses
as private actors, their actions are properly scrutinized under
§ 1983.
2. Decision-making Authority
Plaintiff argues that Private EMS and Mallard may be held
liable for her § 1983 claims, despite the fact that "it was the
state and not [a] private actor that committed the allegedly
unconstitutional act." Willis v. Ga. Dep't of Juvenile Justice,
No. 7:05-cv-59(HL), 2007 WL 2782509, at *8 (M.D. Ga. Sept. 21,
2007) . Typically, liability rests only with those with
decision-making authority. Matthews v. Columbia Cnty., 294 F.3d
1294, 1297 (11th Cir. 2002) (per curiam)
A "decisionmaker" is someone "who has the
power to make official decisions and, thus,
be held individually liable. A
"decisionmaker" may often be identified by a
rule or by examining the statutory authority
of the official alleged to have made the
decision. In the termination context, a
"decisionmaker" has the power to terminate
an employee, not merely the power to
recommend termination.
Kamensky v. Dean, 148 F. App'x 878, 879-80 (11th Cir. 2005) (per
curiam) (emphasis in original) (citations omitted).
Although the Eleventh Circuit has not extended individual
liability to situations in which a governmental authority
"rubber stamps" a recommendation, id. at 880, recent caselaw13
In the alternative, the allegations contain sufficient circumstantial facts
that plausibly show the existence of a mutual understanding between Christian
and Defendants to act toward a common unlawful goal.
AO 72A
(Rev. 8/82)
22
relying on Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011)—
suggests that individual liability is appropriately imposed on
an "unlawfully motivated subordinate (the monkey, in the cat's
paw fable) under § 1983." Polion v. City of Greensboro, No. 130244-WS-M, 2014 WL 2611562, at *15 n.16 (S.D. Ala. June 10,
2014); see also Smith v. Bray, 681 F.3d 888, 899 (7th Cir. 2012)
(stating that five other circuits have held that individual
liability under § 1983 is appropriate on this basis); Crutch v.
Lawrence Cnty. Bd. of Educ., No. 3:12-CV-827-PWG, 2012 WL
3030173, at *3 n.4 (N.D. Ala. July 23, 2012) (mitigating
Kamensky's weight of persuasion in light of it being an
unpublished opinion based on a summary judgment record).
a. Parties' Arguments
Plaintiff argues that Mallard and Private EMS are
responsible for her termination despite not having ultimate
decision-making authority because (A) they freely accessed
County EMS files despite no formal relationship with the County
and (B) Mallard had the "mantle of authority" to conjure false
allegations and cause Plaintiff's termination.
In contrast, Defendants argue that they lacked decisionmaking authority, as that was vested exclusively in Christian
and the Board of Commissioners. Instead, according to
Defendants, they were merely consultants, and the Complaint
relies on pure speculation.
AO 72A
(Rev. 8/82)
23
b. Application
Despite the lack of binding Eleventh Circuit precedent on
the issue, the trending majority of authority finds that an
unlawfully motivated actor may be properly held liable for a
constitutional deprivation, despite the actor's non-status as a
decision-maker. Therefore, Defendants' non-status as a
decision-maker is not fatal to Plaintiff's § 1983 claims, at
least not at this juncture.
3. First Amendment Speech Claim
Count 2 asserts a violation of Plaintiff's First Amendment
right to free speech. Dkt. No. 36 191 79-89. The Speech Clause
of the First Amendment says, "Congress shall make no law .
abridging the freedom of speech . . . ." U.S. Const. amend I.
"The First Amendment, as incorporated through the Due Process
Clause of the Fourteenth Amendment, applies to state and
municipal governments, state-created entities, and state and
municipal employees." Holloman ex rel. Holloman v. Harland, 370
F.3d 1252, 1268 (11th Cir. 2004) (citations omitted).
"A state employer can not retaliate against a state
employee for engaging in speech constitutionally protected under
the First Amendment." Stanley v. City of Dalton, 219 F.3d 1280,
1288 (11th Cir. 2000). In assessing such a claim, the Eleventh
Circuit has adopted the following four-step framework:
AO 72A
(Rev. 8182)
24
[T]he employee must show by a preponderance
of the evidence that: (1) the employee's
speech is on 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 in order to promote the efficiency of
the public services it performs through its
employees; and (3) the employee's speech
played a substantial part in the employer's
decision to demote or discharge the
employee. If the employee succeeds in
showing the preceding factors, the employer
must prove by a preponderance of the
evidence that (4) it would have reached the
same decision even in the absence of the
protected conduct.
Id. (ellipsis and internal quotation marks omitted)
a. Public Concern Analysis
First, Plaintiff must show that her speech was on a matter
of public concern. To make this showing, the speech "must
relate to any matter of political, social, or other concern to
the community." Id. at 1288 n.13 (quoting Connick v. Myers, 461
U.S. 138, 146 (1983)) (brackets and internal quotation marks
omitted) . The caselaw draws a distinction between speech
involving personal interests versus public interests:
If the government employee speaks not as a
citizen upon matters of public concern, but
instead as an employee upon matters only of
personal interest, absent the most unusual
circumstances, a federal court is not the
appropriate forum in which to review the
wisdom of a personnel decision taken by a
public agency allegedly in reaction to the
employee's behavior. Because an employee's
speech will rarely be entirely private or
entirely public, the main thrust of the
AO 72A
(Rev. 8/82)
25
employee's speech must be determined. This
determination is made by examining the
content, form, and context of a given
statement, as revealed by the whole record.
When there is a personal element to the
speech, complaints of wrongdoing within a
public agency may not constitute speech on a
matter of public concern.
Id. (emphasis added) (citations, brackets, and internal
quotation marks omitted); see also Pattee v. Ga. Ports Auth.,
477 F. Supp. 2d 1253, 1263 (S.D. Ga. 2006) ("If the main thrust
of the speech was for private gain, the speech will not be
considered to be on a matter of public concern, seemingly no
matter how strong the other factors weigh in favor of
characterizing the speech as a matter of public concern.").
Thus, "when 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. ,14 Callahan v.
Fermon, 526 F.3d 1040, 1044 (7th Cir. 2008) (emphasis in
original) (quoting Garcetti v. Ceballos, 547 U.S. 410, 421
14
The mere fact that speech is "made to coworkers or to supervisors rather
than directed at the general public does not remove the speech from the
category of public concern" if there is a cognizable public interest
motivating the speech, such as concern about the public's safety. Cook v.
Gwinnett Cnty. Sch. Dist., 414 F.3d 1313, 1319 (11th Cir. 2005); see also
Pattee, 477 F. Supp. 2d at 1263 ("[A] disclosure of perceived governmental
failures to an entity in a position to correct them is akin to a public
disclosure."); Myles v. Richmond Cnty. Bd. of Educ., 267 F. App'x 898, 900
(11th Cir. 2008) (per curiam) ("An employee's failure to address her
complaints to the public does not automatically mean they were not on a
matter of public concern; nonetheless, the employee's attempt at public
disclosure is a relevant factor in making the determination."). Moreover,
"an employee's motive for speech, while not dispositive, is a factor that
must be considered in determining whether speech is a matter of public
concern." Morris v. Crow, 117 F.3d 449, 457 (11th Cir. 1997) (per curiam).
AO 72A
8/82)
(Rev.
26
(2006)). In other words, "[t]he controlling factor . . . is
whether the speech 'owes its existence to a public employee's
professional responsibilities.'" Id. at 1044 (quoting Garcetti,
547 U.S. at 421).
There are nine instances that possibly involve protected
speech by Plaintiff:
In February 2012, in a large crowd of fire personnel, EMS
personnel, and others supporting Justice at a Board of
Commissioners meeting, Plaintiff "expressed to several of
the persons in attendance in the audience her support for
Ken Justice, her opposition to the proposal to remove him
[from certain positions], and her opposition to
privatization of the Pierce County EMS." Dkt. No. 36 ¶ 23.
• "Prior to August 8, 2012, Plaintiff spoke on several
occasions with Defendant Spivey concerning the proposed
privatization" and her opposition to any such effort. Id.
¶ 25.
On the morning of August 8, 2012, Plaintiff told Spivey,
Cady, and Roberts about her disagreement with Justice's
suspension. Id. ¶ 26.
• Later that afternoon on August 8, 2012, at a meeting called
by Christian in which he announced Spivey's promotion,
Plaintiff became upset and, outside of others' presence,
discussed Justice's suspension with Hitt. Id. ¶ 27.
AO 72A
(Rev. 8/82)
27
• On August 9, 2012, at a one-on-one meeting called by
Christian, Plaintiff expressed her opposition to Justice's
suspension. Id. ¶ 29.
• On August 15, 2012, after a meeting between Spivey and
Mallard, Plaintiff "expressed to Defendant Spivey her
concerns about the possible loss of her job due to" Spivey
and Mallard's long meeting and rumors of privatization.
Id. ¶ 31.
• On August 17, 2012, at a meeting in Christian's office that
Plaintiff was required to attend, Plaintiff became
emotional and politely declined to share her feelings about
the "changes taking place." Id. 91 32.
• In the evening of August 24, 2012, Plaintiff called Varnes
for an explanation of why Private EMS employees would be at
the office on Monday and expressed her "frustration" about
Private EMS being hired despite County EMS already having a
third-party billing consultant. Id. 91 40.
• On August 27, 2012, Cady initiated a meeting in which
Plaintiff was terminated and Cady asked Plaintiff whether
Justice told her "to not do the billing so the county would
go bankrupt," to which Plaintiff denied as absurd. Id.
¶ 41.
AO 72A
(Rev. 8182)
28
As to all instances of speech on or after August 9, 2012,
they clearly fail to touch on a matter of public concern because
either (A) the statements were made pursuant to Plaintiff's
official duties and responsive to communication initiated by
others, see id. ¶91 29, 32, 40-41 or (B) the thrust of the speech
was for Plaintiff's own personal gain, see Id. 191 31, 40. These
instances owe their existence to Plaintiff's professional
responsibilities rather than her civic responsibilities.
In contrast, as to the instances of speech alleged to have
occurred on or before August 8, 2012, the allegations are not
extensively detailed, but one could plausibly infer that the
instances touched on a matter of public concern and would exist
despite Plaintiff's professional responsibilities. Most
notably, the February 2012 speech could have touched on a
community concern, as indicated by its timing being coincident
with a governmental deliberation and the speech's audience
consisting of a group of (currently unspecified) individuals
located in a public, non-work forum. Although not expressly
stated, it is reasonably inferable that the speech occurred
during non-working hours, not to work peers, and was motivated
by concern for the public's well-being rather than Plaintiff's
personal interest. Therefore, the Complaint alleges facts
satisfying the public-concern prong.
AO 72A
(Rev. 8/82)
29
b. Pickering 15 Analysis
Second, Plaintiff must show that the balance between her
free speech interests and the government's interests are in her
favor. To strike a balance between an employee's free speech
interests and the government's interest in promoting efficient
public services, a court considers "(1) whether the speech at
issue impedes the government's ability to perform its duties
efficiently, (2) the manner, time, and place of the speech, and
(3) the context within which the speech was made." Stanley, 219
F.3d at 1289. For example, it is relevant "whether the speech
at issue 'impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships
for which personal loyalty and confidence are necessary, or
impedes performance of the speaker's duties or interferes with
the regular operation of the public employer's enterprise.'"
Morris v. Crow, 117 F.3d 449, 457-58 (11th Cir. 1997) (per
curiam) (brackets omitted) (quoting Rankin v. McPherson, 483
U.S. 378, 388 (1987)); see also id. at 458 (reasoning that
speech did not touch on a public concern where the employee used
"disrespectful, demeaning, rude, and insulting" language to a
superior "in full view of her co-workers") . This inquiry
requires a "careful balancing of competing interests on a caseby-case basis." Stanley, 219 F.3d at 1289.
15
AO 72A
(Rev. 8/82)
1
Pickering v. Bd. of Educ., 391 U.S. 563 (1968).
30
As with the first element, Plaintiff has pleaded facts with
which it could be plausibly found that her interests outweighed
the government's interests. Again, the February 2012 speech
provides the strongest case. From the allegations, the Court
reasonably infers that the government's ability to perform was
unaffected, as implied by the manner, time, and place of the
speech at a public gathering coincident with a Board of
Commissioners meeting. Moreover, there is nothing implying that
Plaintiff's speech was rude, disrespectful, or otherwise
insubordinate as to interfere with the efficient provision of
government services. Weighing against this weak government
interest is a potentially weighty interest for public citizens
to comment on the merits of agency privatization and budgetary
concerns. 16 Therefore, the Complaint's allegations satisfy the
Pickering prong.
c. Substantial Part Analysis
Third, Plaintiff must show that her speech played a
substantial part in her termination. To conduct this inquiry,
"a court must examine the record as a whole to ascertain whether
the plaintiff presented sufficient evidence for a reasonable
16
To a lesser degree, the other pre-August 8 incidents of speech could
support a finding that Plaintiff's free speech interests outweighed the
government's interests. The Complaint's allegations suggest that Plaintiff
was never harsh or disruptive to the office's operations, but only was vocal
about a community concern. Despite the work-hour timing and work-based
audience of the speech, it is possible that the context and content were
appropriate so that Plaintiff's interests were supreme.
AO 72A
(Rev. 8/82)
31
jury to conclude her protected speech was a substantial
motivating factor in the decision to terminate her." Kamensky,
148 F. App'x at 881. The burden to show this is not heavy, and
it is not subject to any single standard. Id. However, the
Eleventh Circuit has identified several relevant factors, none
of which is outcome determinative and all of which must be taken
into account:
(1) the temporal proximity between the
termination and the protected activity; (2)
whether any reasons for the termination were
pretextual; (3) whether any comments made,
or actions taken, by the employer indicate
the discharge was related to the protected
speech; (4) whether the asserted reason for
the discharge varied; and (5) any
circumstantial evidence of causation,
including such facts as [i] who initiated
any internal investigations or termination
proceedings, [ii] whether there is evidence
of management hostility to the speech in
question, or [iii] whether the employer had
a motive to retaliate.
Id. As to the temporal-proximity factor, there is no per se
rule on the length of time necessary to create an inference,
although causation is inferred where termination closely follows
protected activity. Id.
Taking all reasonable inferences in Plaintiff's favor, the
balance of the factors could weigh for Plaintiff that her speech
was a substantial motivating factor for her termination. The
temporal proximity between the February 2012 speech and her
termination was approximately six months. This time gap,
AO 72A
(Rev. 8/82)
32
I
standing alone, would be insufficient to show causation. See
Higdon v. Jackson, 393 F.3d 1211, 1221 (11th Cir. 2004) ("By
itself, the three month period . . - does not allow a reasonable
inference of a causal relation between the protected expression
and the adverse action."); Batts v. Silver Line Bldq. Prods.
Corp., No. 1:08-CV-3355-WSD-ECS, 2010 WL 966860, at *13 (N.D.
Ga. Feb. 22, 2010) (reasoning that a five-to-six month gap
between protected activity and alleged instances of retaliation
was insufficient, by itself, to show causation) . However, with
the continuation of plausibly protected speech over the
subsequent months and in the months preceding Plaintiff's
termination, the inference of causation is stronger. See, e.g.,
Russaw v. Barbour Cnty. Bd. of Educ., 891 F. Supp. 2d 1281, 1292
(M.D. Ala. 2012) (reasoning that a two-month gap between an
adverse employment action and protected conduct is sufficient to
support a prima facie case of causation based on temporal
proximity). Moreover, causation can be inferred from other
considerations. See Robinson v. LaFarge N. Am., Inc., 240 F.
App'x 824, 828-29 (11th Cir. 2007) (per curiam) ("[Glaps of
time, standing alone, do not preclude a plaintiff from producing
enough evidence for a reasonable jury to conclude that protected
speech was a substantial factor in the adverse employment
decision." (brackets omitted)); Batts, 2010 WL 966860, at *13
AO 72A
(Rev. 8/82)
I
33
("[Chose temporal proximity is not the only means by which a
plaintiff can establish a causal connection.").
The key premise to Plaintiff's claims is that the reasons
for her termination were pretexts based on concocted falsities
about her job performance. Although the official reason for
Plaintiff's termination never varied, several comments by the
alleged co-conspirators (but primarily Christian) indicate that
the discharge could have been related to the protected speech.
True, there is no explicit allegation that Private EMS or
Mallard knew of Plaintiff's protected speech, but the Complaint
shows that Mallard and Christian had initiated discussions as
far back as July 2011 and that, in the months following these
initial talks, Mallard was aware of the internal controversy at
County EMS. Based on the other allegations supporting the
conclusion that Mallard, Private EMS, and the other defendants
had a close relationship or are properly considered coconspirators, it is reasonable to infer that Mallard and Private
EMS were aware of (A) any material developments within County
EMS and (B) Plaintiff's vocal opposition to privatization and
Justice's suspension. For the purpose of Defendants' motion to
dismiss, these facts are sufficient to show causality and
establish a plausible claim for violation of Plaintiff's free
AO 72A
(Rev. 8/82)
34
speech rights. 17 Therefore, as to Count 2, Defendants' motion is
DENIED.
4. Reputational Liberty Claim
Count 4 asserts a claim for "deprivation of
constitutionally protected reputational liberty." Dkt. No. 36,
at 28. A procedural due process claim for deprivation of
liberty may be actionable under 42 U.S.C. § 1983 if
"reputational damage is sustained in connection with a
termination of employment." Allen v. Ga. Dep't of Human Res.,
No. 5:05-CV-36(DF), 2006 WL 2263987, at *3 (M.D. Ga. Aug. 8,
2006) (citing Cotton v. Jackson, 216 F'.3d 1328, 1330 (11th Cir.
2000)). Such a claim requires a claimant to prove the
following: "(1) a false statement (2) of a stigmatizing nature
(3) attending a governmental employee's discharge (4) made
public (5) by the governmental employer (6) without a meaningful
opportunity for employee name clearing." Buxton v. City of
Plant City, 871 F.2d 1037, 1042-43 (11th Cir. 1989) (footnotes
omitted)
'' As to the fourth prong, the burden is on the employer to prove by a
preponderance of the evidence that it would have reached the same decision to
terminate Plaintiff in the absence of her protected speech. Stanley, 219
F.3d at 1288. Therefore, the Complaint's failure to specifically aver to
this effect does not prejudice Plaintiff's claim for the purposes of
Defendants' motion to dismiss. Moreover, to the degree that the purported
reason for Plaintiff's termination was conjured in response to her
purportedly protected speech, it is clear that the decision to terminate
would not have been reached but for the protected speech.
AO 72A
(Rev. 8182)
35
As to the sixth element, '"[i]f adequate state remedies were
available but the plaintiff failed to take advantage of them,
the plaintiff cannot rely on that failure to claim that the
state deprived him of procedural due process." Cotton, 216 F.3d
at 1331. This requirement ensures that a state has an
opportunity to remedy an alleged procedural failure in an
appropriate forum before being subject to such a claim. Id.
Courts have held that—even without any specific legal remedy
under Georgia law—an individual whose reputational liberty is
allegedly harmed is "entitled to initiate a mandamus proceeding
for the purpose of seeking [a] name-clearing hearing" under
O.C.G.A. § 9-6-20. Allen, 2006 WL 2263987, at *5; Cotton, 216
F.3d at 1332-33; A.A.A. Always Open Bail Bonds, Inc. v. DeKaib
Cnty., 129 F. App'x 522, 525-26 (11th Cir. 2005) (per curiam).
Failure to do so deprives a claimant of an actionable cause of
action. Allen, 2006 WL 2263987, at *5
Plaintiff argues that her claim should not be barred by her
failure to bring a name-clearing hearing because such a hearing
would have compromised her other claims' viability vis-à-vis
"judgment by estoppel" under O.C.G.A. § 9_12_40 . 18 Dkt. No. 47,
at 21-22. In effect, she does not dispute the availability of a
18
Under O.c.G.A. § 9-12-40, "[a] judgment of a court of competent
jurisdiction shall be conclusive between the same parties and their privies
as to all matters put in issue or which under the rules of law might have
been put in issue in the cause wherein the judgment was rendered until the
judgment is reversed or set aside."
AO 72A
(Rev. 8/82)
1
36
name-clearing proceeding but instead asks the Court to excuse
her from satisfying this claim's element.
Simply put, Plaintiff's claim fails because she has not
shown that she lacked a meaningful opportunity to clear her
name. She cites no legal authority in support of her contention
that initiating a mandamus proceeding would eviscerate any
opportunity to bring her other claims. Although O.C.G.A. § 912-40 estops a party from subsequently raising any "matters put
in issue or which under the rules of law might have been put in
issue in the cause wherein the judgment was rendered," the Court
finds no basis in finding that a narrowly directed mandamus
proceeding could contemplate the variety of claims brought here,
thereby triggering estoppel. Therefore, Count 4 is DISMISSED.
4. Conspiracy Claim
Count 5 asserts a "conspiracy to deprive Plaintiff of her
constitutional rights" under 42 U.S.C. § 1983 . 19 Dkt. No. 36, at
30. To prove a § 1983 conspiracy, "a plaintiff must show that
the parties reached an understanding to deny the plaintiff his
or her rights and prove an actionable wrong to support the
conspiracy." Bailey v. Bd. of Cnty. Cornrn'rs of Alachua Cnty.,
956 F.2d 1112, 1122 (11th Cir. 1992) (quoting Bendiburg v.
Dempsey, 909 F.2d 463, 468 (11th Cir. 1990)) (brackets and
internal quotation marks omitted) . Thus, there must be an
19 Nowhere does Plaintiff argue for the existence of a conspiracy under 42
See Dkt. Nos. 26; 36; 47.
U.S.C. § 1985.
A072A
(Rev. 8/82)
1
37
underlying constitutional infirmity from which this claim
derives and evidence of an agreement between defendants. Rowe,
279 F.3d at 1283. Moreover, as stated supra Part IV.A.l.b., to
establish a conspiracy for § 1983's purposes, "the plaintiff
must plead in detail, through reference to material facts, the
relationship or nature of the conspiracy between the state
actor(s) and the private persons." Brown, 361 F. App'x at 54.
As stated supra Part IV.A.l.c., the Complaint plausibly
alleges the existence of a conspiracy between Mallard, Private
EMS, and the other defendants. Second, as reasoned supra Part
IV.A.3, there is an actionable underlying § 1983 claim from
which Count 5 is properly derived. Therefore, as to Count 5,
Defendants' motion is DENIED.
B. Claim for Defamation
Count 7 asserts a claim against Mallard and Private EMS,
among others, for "defamation/slander/libel." Dkt. No. 36
191 119-23. The underlying statements at issue involve
"imput[ing] a crime to Plaintiff" and "falsely claiming" that
Plaintiff "failed to properly discharge her duties; failed to
bill over $800,000 correctly; accepted falsified documents;
failed to properly process billings; [and] engaged in other
activities that were not true. ,20 Id. 191 121-22.
20
Although Defendants argue that Plaintiff has failed to demonstrate the
falsity of these statements, Defendants misconstrue Plaintiff's burden in
responding to their motion to dismiss.
AO 72A
(Rev.
8/82)
1
38
Defamation entails four elements:
(1) a false and defamatory statement
concerning the plaintiff; (2) an
unprivileged communication to a third party;
(3) fault by the defendant amounting at
least to negligence; and (4) special harm or
the "actionability of the statement
irrespective of special harm."
Mathis v. Cannon, 276 Ga. 16, 20-21(2) (2002). The law of
defamation distinguishes between libel and slander. Slander (or
oral defamation) consists of "[making charges against another
in reference to his trade, office, or profession, calculated to
injure him therein" or "[u]ttering any disparaging words
productive of special damage which flows naturally therefrom."
O.C.G.A. § 51-5-4 (a) . Libel (or written defamation) is "a false
and malicious defamation of another, expressed in print,
writing, pictures, or signs, tending to injure the reputation of
the person and exposing him to public hatred, contempt, or
ridicule." O.C.G.A. § 51-5-1(a); Both theories of defamation
may plausibly underlie this action, as the statements were made
orally and apparently memorialized in handouts at the Board of
Commissioners meetings .21 See Dkt. No. 6-3, Ex. 2.
21
Indeed, the parties do not contest whether libel or slander exclusively
underlies the action, and Count 7 is titled "Defamation/Slander/Libel." Dkt.
No. 36, at 33.
AO 72A
(Rev. 8/82)
39
1. "Concerning the Plaintiff"
Pursuant to the first element in sustaining a defamation
action, a degree of specificity is required in regard to
ascertaining whom the words reference:
The allegedly defamatory words must refer to
some ascertained or ascertainable person,
and that person must be the plaintiff. If
the words used really contain no reflection
on any particular individual, no averment or
innuendo can make them defamatory. An
innuendo can not make the person certain
which was uncertain before.
Fiske v. Stockton, 171 Ga. App. 601, 602(1) (1984). For
example, where an advertisement states that "some company,"
which sells a product without any trademark, is giving customers
a "run-around" and other companies sell the product, an action
for defamation fails as a matter of law. Armscorp of Am., Inc.
v. Daugherty, 191 Ga. App. 19, 19 (1989) . In making this
assessment, a court constructs a statement's meaning through the
eyes of an average reader. Cox Enters., Inc. v. Bakin, 206 Ga.
App. 813, 817(1) (1992). A reader's subjective decision to
impute innuendo is not actionable as defamation. Id.
Mallard and Private EMS are purportedly responsible for
making the following statements:
. "[T]here are serious problems with the EMS billing and
coding which ha[s] caused Pierce County to lose large sums
of money over the last 5 years." Dkt. No. 36 91 34.
AO 72A
(Rev. 8182)
40
1
• "[T]here was at least $250,000.00 to $300,000.00 lost due
to billing errors." Id.
• "[I]mproper coding of bills at Pierce County EMS had
resulted in insurance carriers denying claims." Id.
• "Pierce County EMS had been watched very closely by Pierce
County's third-party billing consultants over the past six
months." Id. ¶ 35. In making these false allegations,
Mallard insinuated that Plaintiff was incompetent. Id.
• "[T]here were checks totaling $6,200.00 spread around in
the vault that had not been deposited . . . ." Id. ¶ 44.
• "[T]here was about $818,000 that had not been collected and
even more that had been billed improperly by the Pierce
County Emergency Medical Services." Id. ¶ 46.
• "288 claims had not been submitted and [Mallard] had to
submit them." Id. ¶ 48.
"Pierce County EMS was 2 months behind in billing." Id.
• "Throughout the next several months [after September 2012],
Mallard . . . publicly and falsely accused Plaintiff
of not billing at least $250,000 and possibly not correctly
billing approximately $800,000 in emergency medical
services." Id. 91 55.
The parties contest whether the statements at issue are
actionable as referencing Plaintiff. Plaintiff admits that
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Defendants, in making some of these statements, never
specifically identified Plaintiff, but instead County EMS
generally. Nevertheless, Plaintiff posits that her identity was
readily ascertainable by implication and that she was
specifically mentioned on at least one occasion. Dkt. No. 26,
at 20.
Drawing all reasonable inferences in Plaintiff's favor, it
is plausible that the aforementioned statements can be
objectively found to reference Plaintiff despite no specific
mention of her. Defendants identified several purported billing
improprieties, and Plaintiff's responsibility is inferred from
her acting as the "billing clerk for the Pierce County EMS" who
was "responsible" for certain critical functions. Dkt. No. 36
¶ 16. Indeed, she was the "sole individual" responsible for
transmitting certain information. Id. Moreover, beyond the
statements casting blame generally on County EMS, the Complaint
states that there were instances in which Plaintiff specifically
was defamed. See id. 191 35, 55.
2. Privilege from Suit
The claim requires a showing that the statements at issue
were unprivileged communications to a third party. The parties
contest whether Defendants' communications were privileged.
42
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Under Georgia law, a statement may be conditionally
privileged, unless it was maliciously uttered
.
22
Rabun v. McCoy,
273 Ga. App. 311, 316(2) (2005). A communication is privileged
if it is "made in good faith in the performance of a public
duty," "made in good faith in the performance of a legal or
moral private duty," or "made with a good faith intent on the
part of the speaker to protect his or her interest in a matter
in which it is concerned." O.C.G.A. § 51-5-7. To warrant the
benefit of such a privilege, however, the speaker must show
"[1] good faith, [2] an interest to be upheld, [3] a statement
properly limited in its scope, [4] a proper occasion, and
[5] publication to proper persons." Hammer v. Slater, 20 F.3d
1137, 1141 (11th Cir. 1994) (quoting Camp v. Maddox, 93 Ga. App.
646, 649(3) (1956)). The burden of proving a claim of privilege
rests with the party seeking to use the privilege. Chaney v.
Harrison & Lynam, LLC, 308 Ga. App. 808, 814(lc) (2011).
At this stage, the Court cannot conclude that Defendants'
communications were privileged. Although they may have spoken
in good faith on a matter in which they were concerned,
Plaintiff alleges otherwise. Taking the Complaint's allegations
as true, Mallard and Private EMS's statements were motivated by
22
"In every case of privileged communications, if the privilege is used
merely as a cloak for venting private malice and not bona fide in promotion
of the object for which the privilege is granted, the party defamed shall
have a right of action." O.C.G.2\. § 51-5-9. Substantively, "[i]n all
actions for printed or spoken defamation, malice is inferred from the
character of the charge." O.C.G.A. § 51-5-5.
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I
malice, "meaning that the 'allegedly defamatory matter was
uttered with knowledge that it was false or reckless disregard
for whether it was true or false.' ,23 Stroman v. Bank of Am.
Corp., 852 F. Supp. 2d 1366, 1378 (N.D. Ga. 2012) (quoting
Hammer, 20 F.3d at 1142) . This is sufficient to overcome any
claim of privilege.
3. Culpability
Although at least negligence is required to sustain a
defamation action, Mathis, 276 Ga. at 20(2), there are instances
in which a claim for libel requires "a plaintiff to allege facts
indicating actual malice," Stroman, 852 F. Supp. 2d at 1378.
Pursuant to the discussion supra Part IV.B.2, the Complaint
pleads allegations that satisfy this element.
4. Defamatory Nature and Resulting Harm
The defamatory nature of statements and harm that must be
proven involve an overlapping inquiry. A statement can be
defamatory per se or per quod. McGinnis v. Am. Home Mortg.
Servicing Inc., No. 5:11-CV-284(CAR), 2013 WL 3338922, at *17
(M.D. Ga. July 2, 2013). A false statement is per se defamatory
if it involves "a false statement that one is guilty of a crime,
dishonesty or immorality or that tends to injure one in his
trade or business." McGowan v. Homeward Residential, Inc., 500
23
"Georgia courts have explained reckless disregard as whether the defendant
entertained serious doubts as to the truth of his publication." Hammer, 20
F.3d at 1142 (internal quotation marks omitted)
44
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F. App'x 882, 886 (11th Cir. 2012) (per curiam) (quoting Zarach
v. Atlanta Claims Ass'n, 231 Ga. App. 685, 688(2) (1998))
(alterations and internal quotation marks omitted) . To
determine whether words are defamatory as a matter of law, a
court "must rely upon the words themselves" rather than "hunt
for strained constructions." Zarach, 231 Ga. App. at 688(2).
The words must be "recognized as injurious on their face—without
the aid of extrinsic proof." Id. If a statement is per se
defamatory, special damages need not be pleaded. 24 See McGowan,
500 F. App'x at 885 (stating that for a libel claim under
Georgia law, a plaintiff "must plead a false statement that
either: (1) is libel per Se; or (2) caused [the plaintiff] to
suffer special damages")
Defendants argue that the statements were not defamatory
because they, at worst, reveal that an accounting showed money
had not been—but still could be—collected. This argument is
wholly without merit. The statements at issue charged that
County EMS (and plausibly Plaintiff by implication) had
"serious" billing problems, had sloppy and untimely procedures,
required close supervision, and caused money to be lost. These
24
"Defamation not amounting to slander per se or libel per se requires proof
of special damages." McGinnis, 2013 WL 3338922, at *18. In such a case, a
plaintiff must plead special damages under Rule 9(g)'s heightened pleading
standard. McGowan, 500 F. App'x at 886. This requires that "an item of
special damage" to "be specifically stated." Fed. R. Civ. Proc. 9(g). "The
special damages necessary to support an action for defamation . . . must be
the loss of money[] or of some other material temporal advantage capable of
being assessed in monetary value." Webster v. Wilkins, 217 Ga. App. 194,
196(2) (1995)
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allegations, on their face, are defamatory per se because they
injure Plaintiff's professional reputation. Therefore, as to
Count 7, Defendants' motion is DENIED.
C. Claim for Intentional Infliction of Emotional Distress
Count 6 asserts a claim against Mallard and Private EMS,
among others, for intentional infliction of emotional distress.
Dkt. No. 36 IT 110-11, 113-118. The cited actions that are
purportedly extreme and outrageous include "denigrating the
Plaintiff in public meetings; making defamatory statements
regarding the Plaintiff's job performance to the Pierce County
Board of Commissioners and the public and various newspapers;
terminating the Plaintiff's employment with Pierce County; and
failing to grant her a hearing on her dismissal or a name
clearing hearing." Id. ¶ 114.
To succeed on this claim, Plaintiff must establish four
elements: "(1) The conduct must be intentional or reckless; (2)
The conduct must be extreme and outrageous; (3) There must be a
causal connection between the wrongful conduct and the emotional
distress; [and] (4) The emotional distress must be severe."
Hendrix v. Phillips, 207 Ga. App. 394, 395(1) (1993) (quoting
Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga. App. 227, 230(1)
(1985) )
Plaintiff's primary deficiency is her failure to show the
second element. This element requires a showing that
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Defendants' conduct was "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community." Phinazee v. Interstate
Nationalease, Inc., 237 Ga. App. 39, 40 (1999) (quoting Bowers
v. Estep, 204 Ga. App. 615, 618(2) (1992)); see also Restatement
(Third) of Torts: Physical & Emotional Harm § 46 cmt. d (2012)
(noting that the "extreme and outrageous" element "requires both
that the character of the conduct be outrageous and that the
conduct be sufficiently unusual to be extreme"'). Indeed, in
Georgia:
[It is] held that outrageous conduct
sufficient to justify a claim of intentional
infliction of emotional distress "does not
include mere insults, indignities, threats,
annoyances, petty oppressions, or other
vicissitudes of daily living. Plaintiffs
are expected to be hardened to a certain
amount of rough language and to occasional
acts that are definitely inconsiderate and
unkind."
Ghodrati v. Stearnes, 314 Ga. App. 321, 323 (2012) (quoting
Wilcher v. Confederate Packaging, Inc., 287 Ga. App. 451, 454(2)
(2007)); see also Northside Hosp., Inc. v. Ruotanen, 246 Ga.
App. 433, 434-35 (2000) (stating that rude behavior to the
family of a deceased person was not sufficiently egregious).
This is an objective standard, in which "the evidence must show
that reasonable persons might find the presence of extreme and
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outrageous conduct." Clark v. Coats & Clark, Inc., 990 F.2d
1217, 1229 (11th Cir. 1993) . A determination on this element is
a question of law. Hill v. City of Fort Valley, 251 Ga. App.
615, 616(la) (2001).
In response to Defendants' motion, Plaintiff cites no legal
authority to explain how the Complaint's allegations constitute
extreme and outrageous conduct. Dkt. No. 26, at 24-26.
Instead, she apparently relies on the facts as patently "extreme
and outrageous." Id. Specifically, she alleges that Mallard
falsely accused Plaintiff of doing her job improperly and
provided information to Christian that facilitated her
termination. Id. at 25. These purportedly false allegations
were then publicized in the local newspaper and were motivated
by Mallard and Private EMS's desire to take over County EMS's
operations. Id. at 25-26.
The facts alleged do not constitute extreme and outrageous
conduct. 25 Indeed, "Georgia courts have held that an employer's
termination of an employee—however stressful to the employee—
generally is not extreme and outrageous conduct." Clark, 990
F.2d at 1229. Nor are performance evaluations, regardless of
their brutal harshness or whether they are accompanied with a
25
Moreover, the factual basis for the claim is largely subsumed by
Plaintiff's other counts. Cf. Peterson v. Merscorp Holdings, Inc., No. 1:12cv-00014-JEC, 2012 WL 3961211, at *6 (N.D. Ga. Sept. 10, 2012)
("[P]laintiffs' claim for intentional infliction of emotional distress seems
largely subsumed by their claim for wrongful foreclosure. Plaintiffs' claim
for intentional infliction of emotional distress is therefore DISMISSED.")
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false accusation. Jarrard v. United Parcel Serv., Inc., 242 Ga.
App. 58, 59-60 (2000).
Although Defendants' actions were not
"performance evaluations" in their normal sense and were
allegedly tainted with falsehoods, Plaintiff's accusations,
taken as true, do not show actions that "go beyond all possible
bounds of decency" and are properly "regarded as atrocious, and
utterly intolerable in a civilized community." Phinazee, 237
Ga. App. at 40. Therefore, this claim is DISMISSED.
V. Conclusion
For the aforementioned reasons, Defendants' first Motion to
Dismiss is MOOT, and their second Motion to Dismiss is DENIED IN
PART and GRANTED IN PART.
Dkt. Nos. 6; 41.
SO ORDERED, this 14TH day of August, 2014.
LISA GODBEY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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