Ponsell v. Royal et al

Filing 30

ORDER granting in part as to all claims addressed above except for the claim of intentional infliction of emotional distress against Defendant Royal in his individual capacity and denying in part Defendants' 10 Motion to Dismiss. The only cla ims that will proceed are the First Amendment retaliation claim, the Georgia whistleblower claims, and the intentional infliction of emotional distress claim against Defendant Royal in his individual capacity. Defendants Williams and Ware County are hereby dismissed from this action. Signed by Chief Judge Lisa G. Wood on 3/17/2015. (ca)

N the Entteb Statto Mart'd Court
for the Ooutbern Ai0tritt of deorgta
39aptr000 30tbioion
JODY L. PONSELL,
Plaintiff,
CV 514-042

VS.

RANDY F. ROYAL, in his
individual and official
capacity as Sheriff, Office of
the Sheriff for Ware County,
Georgia; REBECCA WILLIAMS in
her individual and official
capacity as Deputy Sheriff,
Office of the Sheriff for Ware
County, Georgia; and WARE
COUNTY, GEORGIA,
Defendants.

ORDER

After Plaintiff Jody L. Ponsell was relieved of his duties
as Captain of Ware County Sheriff's Office's criminal
investigation division, he filed a complaint alleging federal
claims under 42 U.S.C. § 1983 and other state law claims. See
Dkt. no. 1. Presently before the Court are Defendants' Motion to
Dismiss Plaintiff's complaint in its entirety except for certain
claims against Defendant Royal (Dkt. no. 10), Motion for

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Sanctions (Dkt. no. 21), and Motion for Summary Judgment (Dkt.
no. 22). At this juncture, only the Motion to Dismiss is ripe
for adjudication. For reasons stated below, Defendants' Motion
to Dismiss is GRANTED in part and DENIED in part;

it is granted

as to all claims against Defendants Williams and Ware County; it
is also granted as to all claims contested in the motion to
dismiss against Defendant Royal except for the claim of
intentional infliction of emotional distress against Defendant
Royal in his individual capacity, for which the motion to
dismiss is denied.
FACTUAL BACKGROUND

Plaintiff was hired as a detective by former Sheriff Ronnie
McQuaig on April 8, 2008. When McQuaig did not run for
reelection, Defendant Royal successfully ran for the position of
Sheriff of Ware County, Georgia. As Sheriff, Defendant Royal
promoted Plaintiff twice, first to Lieutenant and then to
Captain of the criminal investigation division at the Ware
County Sheriff's Office. Dkt. no. 1, 191 20-28.
During Plaintiff's tenure he alleges that he repeatedly
observed several violations of criminal law, civil law, and
office policies. Plaintiff reported these offenses in writing to
Defendant Royal. Id. at 191 29-30.
Specifically, Plaintiff alleges that Defendant Royal
allowed Sheriff County employees subordinate to Plaintiff's rank
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to ignore Plaintiff's authority with impunity; Defendant
Williams, a detective under Plaintiff's supervision in the
criminal investigation division, had stolen county funds;
Defendant Williams ignored Plaintiff's authority and disregarded
his direct orders; Defendant Williams "illegally and
surreptitiously" recorded employees of the Office of the Sheriff
in a secure area; Defendant Royal "essentially" granted
Defendant Williams immunity from prosecution from the alleged
theft of county funds; and Defendants Royal and Williams
"conspired" to retaliate against Plaintiff. Plaintiff alleges
that he reported these offenses in writing to Defendant Royal,
and that Defendant Royal "did nothing." Id. at ¶T 29-51.
In addition to his reports on Defendant Williams, Plaintiff
claims he witnessed other office misconduct tolerated or
committed by Defendant Royal, such as the suppression of an
investigation into a Waycross Police Department officer who
knowingly enrolled a sex offender into the local high school;
maintaining a policy of not fingerprinting certain arrested
individuals so that they are not saddled with a criminal record;
a policy of falsifying records to cover-up the fingerprinting
policy; an officer's theft of a rifle held as evidence at the
Sherriff's Office; and a general policy of covering up crimes
committed by Sheriff's officers to avoid negative media
attention. Id. at ¶ 52.
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Plaintiff claims that "after this long, sordid history of
Defendant Royal's acquiescence to the continuing criminality and
civil and policy abuses among Defendant Royal's employees, Mr.
Ponsell requested in writing, on or about March 25, 2013,
reassignment to another division where Mr. Ponsell believed less
corruption existed." Id. at ¶ 53.
But instead of being reassigned, Plaintiff was put on
administrative leave with pay. At a later meeting, Defendant
Royal terminated Plaintiff's employment with the Sheriff's
Office. Plaintiff alleges that Defendant Royal knowingly and
incorrectly misrepresented the letter requesting a transfer as a
letter of resignation. Later, when applying for unemployment,
Plaintiff alleges that Defendant Royal "manufactured evidence"
to show that Plaintiff had not in fact asked to be transferred,
but instead had sent a letter of resignation. Defendant Ware
County allegedly appealed Plaintiff's initial award of
unemployment benefits, but failed to appear at the in-person
hearing for those benefits. The unemployment benefits were
ultimately granted. Id. at ¶91 55-60.
At all times, Plaintiff alleges that the Defendants were
acting under the color of state law. Plaintiff alleges that "as
a result of Defendants' retaliatory actions . . . Plaintiff has
suffered monetary loss, emotional pain and suffering,

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inconvenience, mental anguish, and loss of enjoyment of life."
Id. at 191 65, 159.
PROCEDURAL BACKGROUND

In his Complaint, Plaintiff alleges violations of his First
Amendment freedom of speech rights (Counts I and V) and his
Fourteenth Amendment right to due process (Counts III and VI)
under 42 U.S.C. § 1983. He also brings state law claims for
violation of his right to free speech (Count II) and his right
to due process (Count IV) under the Georgia Constitution;
violations of Ga. Code Ann. section 45-1-4 (Georgia
whistleblower act) (Count VII); negligent retention (Count
VIII); and intentional infliction of emotional distress (Count
IX).
In his response to Defendants' motion to dismiss (Dkt. no.
17-1), Plaintiff withdrew his federal due process claims (Counts
III and VI); his state law claims against all Defendants in
their official capacities (excepting the whistleblower claim
against Defendant Royal in his official capacity); his
whistleblower claims against Defendants Ware County, Williams,
and Royal in his individual capacity; and his Georgia
Constitution claims (Counts II and IV). Additionally, Defendants
do not challenge Plaintiff's First Amendment claims against
Defendant Royal in his individual capacity or the Georgia

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whistleblower claim against Defendant Royal in his official
capacity in the present motion.
Thus, the remaining claims for the Court to consider in the
present motion are the First Amendment claims against Defendants
Ware County, Williams in her individual and official capacity,
and Royal in his official capacity (Counts I and V); negligent
retention against Defendants Williams and Royal, in their
individual capacities (Count VIII); and intentional infliction
of emotional distress against Defendants Williams and Royal, in
their individual capacities (Count IX)
LEGAL STANDARD

When ruling on a motion to dismiss brought pursuant to Rule
12(b) (6), a district court must accept as true the facts as set
forth in the complaint and draw all reasonable inferences in the
plaintiff's favor. Randall v. Scott, 610 F.3d 701, 705 (11th
Cir. 2010). Although a complaint need not contain detailed
factual allegations, it must contain sufficient factual material
"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

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Cir. 2007) (per curiam) (quoting Roe v. Aware Woman Ctr. for
Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)).
DISCUSSION
I. First Amendment Claims

In light of his withdrawals, Plaintiff's only remaining
federal claim is a First Amendment retaliation claim against
Defendants Royal in his official capacity, Williams in her
individual and official capacity, and Ware County.
a. Eleventh Amendment

Immunity

Defendants Williams and Royal claim that they are protected
from suit in their official capacity by the Eleventh Amendment.
The Eleventh Amendment prohibits the "Judicial power of the
United States" from reaching "any suit in law or equity,
commenced or prosecuted against one of the United States by
Citizens of another State." U.S. Const. amend. XI. The Supreme
Court interprets this language to also prevent suits against a
state brought by its own citizens. Kimel v. Fla. Bd. Of Regents,
528 U.S. 62, 73 (2000) ("[F]or over a century now, we have made
clear that the Constitution does not provide for federal
jurisdiction over suits against nonconsenting States."). The
State itself need not be named in a suit to receive Eleventh
Amendment immunity—the immunity attaches to any agent or
instrumentality acting as an "arm of the state." See Manders v.
Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc).
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Manders set forth four factors courts must weigh in making
the "arm of the state" determination: "(1) how state law defines
the entity; (2) what degree of control the State maintains over
the entity; (3) where the entity derives its funds; and (4) who
is responsible for judgments against the entity." Id. at 1309.
The Eleventh Circuit recently applied these factors to determine
that a sheriff in Georgia acts as an "arm of the State" when
exercising his power to hire and fire deputies. Pellitteri v.
Prine, -- F.3d --, 2015 WL 151112, at *1 (11th Cir. Jan. 13,
20l5). 1 The Eleventh Circuit then reversed the district court's
denial of the sheriff's motion to dismiss. Id. at *5
In light of Pellitteri's holding that Georgia sheriffs
operate as arms of the state when they make hiring and firing
decisions, this Court holds that Defendant Royal was likewise
acting as an arm of the state when he terminated Plaintiff. 2
However, this holding does not end the Eleventh Amendment
analysis here. Under the doctrine of Ex Parte Young, an
individual may sue a state (or an arm of the state) despite the
1

In applying these four factors, the Eleventh Circuit noted that its prior
unpublished decision in Keene v. Prine, 477 F. App'x 575 (11th Cir. 2012) "is
inconsistent with this Court's published precedent." Pellitteri, 2015 WL
151112, at *2. Here, Plaintiff understandably relied heavily on Keene in
arguing that employees of the Ware County Sheriff's office, in their official
capacities, are not arms of the state. Dkt. no. 17-1, pp. 1-5. However, the
Eleventh Circuit's subsequent published ruling in Pellitteri is binding on
this Court.
2
Pellitteri relied exclusively on Georgia statutory and case law in applying
Manders's four factors to a Georgia sheriff's hiring and firing decisions.
See generally Pellitteri, 2015 WL 151112. The Court has no reason to believe
that the Manders analysis would come out any different when applied to
Defendant Royal's hiring and firing decisions in this case.
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Eleventh Amendment where the claimant requests the court to
grant "prospective injunctive relief to prevent a continuing
violation of federal law." Green v. Mansour, 474 U.S. 64, 68
(1985) (citing Ex parte Young, 209 U.S. 123, 155-56 (1908)). The
Eleventh Circuit has "determined previously that requests for
reinstatement [of employment] constitute prospective injunctive
relief that fall within the scope of the Ex Parte Youn
exception and, thus, are not barred by the Eleventh Amendment."
Lane v. Cent. Ala. Cmty. Call., 772 F.3d 1349, 1351 (11th Cir.
2014)
Here, Plaintiff has requested "reinstatement" of his
various employment benefits that would have accrued "up until
his wrongful termination and would have accrued had he not been
terminated . . •" Dkt. no. 1, p. 30-31. The request is one for
damages, not for the injunctive relief of being reinstated to
his former position as Captain of the criminal investigation
division. This request for back pay and front pay is neither a
request for prospective injunctive relief nor a request for
reinstatement of Plaintiff's employment. Thus, Plaintiff's
federal claims against the Defendants in their official
capacities are barred by the Eleventh Amendment, and are
therefore DISMISSED.

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b. Defendant Williams In Her Individual Capacity

Plaintiff also brings a claim against Defendant Williams in
her individual capacity for conspiracy to retaliate against
Plaintiff in violation of the First Amendment.
"To state a claim for conspiracy, a complaint must contain
more than just vague and conclusory accusations." Allen v.
Secretary, 578 F. App'x 836, 840 (11th Cir. 2014) (citing
Twombly, 550 U.S. 544)). "It is not enough to simply aver in the
complaint that a conspiracy existed. Instead, the complaint must
contain enough factual matter (taken as true) to suggest tha[t]
an illegal agreement was made." Id. (quotations, citations, and
editorial marks removed). The grounds to infer an agreement need
only be plausible, not probable, and the plausibility standard
"simply calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of illegal agreement." Id.
(quoting Twombly, 550 U.S. at 556).
A district court considering a motion to dismiss shall
begin by identifying conclusory allegations that are
not entitled to an assumption of truth—legal
conclusions must be supported by factual allegations.
The district court should assume, on a case-by-case
basis, that well pleaded factual allegations are true,
and then determine whether they plausibly give rise to
an entitlement to relief.
Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). Thus,
as to the First Amendment complaint against Defendant Williams,
the Court will (1) identify the conclusory allegations in the

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complaint; and (2) consider whether the factual allegations,
taken as true, plausibly give rise to an entitlement to relief.
First, Defendants are correct that Plaintiff's complaint is
replete with conclusory allegations. For example, the statement
"Defendant Royal and Defendant Williams conspired to retaliate
against Mr. Ponsell" is plainly conclusory. Dkt. no. 1, ¶ 41. So
are the statements "Defendants Royal and Williams worked
together to engineer Mr. Ponsell's demise with[in] the Office of
the Sheriff," (91 43), and "This partnership by Defendants Royal
and Williams had a goal of removing Mr. Ponsell from the Office
of the Sheriff," (91 46). Certainly, bald allegations that
Defendants were in cahoots to get Plaintiff fired, without more,
cannot be taken as true on their face.
However, conclusory allegations are not verboten in
complaints, especially when paired with factual allegations that
plausibly support those legal conclusions. Here, Plaintiff's
factual allegations include: Defendant Williams, Plaintiff's
subordinate, had stolen county funds, (91 35); Defendant Williams
ignored Plaintiff's authority, (91 37); Defendant Williams
illegally recorded conversations in the office, (91 47);
Plaintiff reported this conduct to Defendant Royal, who did
nothing, (9191 36, 38, 39, 44, 48-50); Defendant Royal thereby
"essentially granted Detective Williams immunity from
prosecution for crimes and adverse actions for disregarding Mr.
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Ponsell's lawful authority," (91 40); and "Defendant Royal
allowed a multitude of criminal, civil, and policy
transgressions to flourish in the Office of the Sheriff,"
(91 51). In short, Plaintiff's factual allegations, which must be
taken as true, are that Defendant Williams committed certain
crimes or misdeeds in the office, Plaintiff reported this
conduct to Defendant Royal, Defendant Royal did nothing about
it, and Plaintiff was subsequently fired.
Therefore, the question for the Court is whether these
factual allegations support a claim for relief. In Allen v.
Secretary, the Eleventh Circuit applied the pleading standards
in Twombly to determine whether a claim of conspiracy to
retaliate in violation of the First Amendment could survive a
motion to dismiss for failure to state a claim on which relief
may be granted. In Allen, a state prisoner alleged that
correctional officers had conspired to retaliate against him, in
violation of his First Amendment rights, by filing false
disciplinary reports against him after he had filed grievances
against two of the several defendant-correctional officers.
Allen, 578 F. App'x at 838. The prisoner alleged that the
officers were drinking and hunting buddies, they were all a part
of the "gang-like" Department of Corrections Brotherhood, they
had announced "for all to hear" that they would protect one
another "no matter what it takes," and that one of the officers
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had told the prisoner that another officer's husband
specifically asked the officer to have the prisoner placed in
solitary confinement in retaliation for filing a grievance
against his wife, a correctional officer. Id. at 841. The
Eleventh Circuit concluded that the prisoner's case should not
have been dismissed, because "[b]ased on these fact-specific
allegations, we believe Allen's complaint contains sufficient
facts to suggest plausibly that Defendants entered into an
illegal agreement." Id.
Conversely, here there are no factual allegations of a
conspiracy between Defendants Williams and Royal to terminate
Plaintiff. While Plaintiff states this conclusion several times,
he does not plead facts that connect his reports on Defendant
Williams's behavior and Defendant Royal's indifference to an
illicit agreement between the two to have him fired for making
the reports. Unlike the pleadings in Allen, there is no
allegation here that Defendants Royal and Williams ever met and
conspired to remove Plaintiff from the office or that they
shared a special relationship with one another. At most, the
allegation that Plaintiff reported Defendant Williams's criminal
conduct to Royal could allow one to speculate that she probably
held a grudge against Plaintiff and, perhaps, sought to have him
fired; but the "[f]actual allegations must be enough to raise a
right to relief above the speculative level." Twornbly, 550 U.S.
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555 (citing 5 C. Wright & A. Miller, Federal Practice and
Procedure § 1216, pp. 235-236 (3d ed. 2004) ("[T]he pleading
must contain something more . . . than . . . a statement of
facts that merely creates a suspicion [of] a legally cognizable
right of action.")).
Because Plaintiff failed to state a claim for conspiracy
against Defendant Williams, his First Amendment claim against
Defendant Williams is DISMISSED.
a. Ware County

Defendants also argue that Plaintiff's claims against
Defendant Ware County fail because it did not cause the
retaliatory termination.
The Supreme Court in Monell v. Department of Social
Services of City of New York held that a local government is not
vicariously liable under § 1983 for injuries inflicted solely by
its employees or agents. 436 U.S. 658, 694 (1978). Rather, a
county is only liable when the county's "official policy" causes
a constitutional violation. Grech v. Clayton County, Ga., 335
F.3d 1326, 1329 (11th Cir. 2003). To show a county's official
policy for § 1983 purposes, a plaintiff must identify either
"(1) an officially promulgated county policy or (2) an
unofficial custom or practice of the county shown through the
repeated acts of a final policymaker for the county." Id.
(citing Monell, 436 U.S. at 690-91)
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Here, Plaintiff's complaint does not allege either an
official policy or an unofficial practice on the part of Ware
County. The only connection the complaint alleges between Ware
County and the underlying events is that Ware County allegedly
appealed Plaintiff's award of unemployment benefits, but then
failed to appear at the unemployment hearing, thereby affirming
the award to Plaintiff. According to Plaintiff, "Defendant
County affirmatively participated in Defendant Royal's fraud
upon the Department of Labor by appealing the award based on
manufactured evidence." Dkt. no. 1, p. 11.
A very generous reading of Plaintiff's Complaint could
possibly attribute an allegation that Ware County is somehow
liable for Defendants' Williams and Royal's alleged retaliatory
termination of Plaintiff for his speech. But even if this
allegation against Ware County was clearly stated in the
Complaint, Monell would preclude the County's liability for the
termination. See Monell, 436 U.S. at 694 ("We conclude,
therefore, that a local government may not be sued under § 1983
for an injury inflicted solely by its employees or agents.")
Additionally, Georgia law makes clear that a sheriff's
office operates independently from the county in which it
operates. "Sheriffs alone hire and fire their deputies." Manders
v. Lee, 338 F.3d 1304, 1311 (11th Cir. 2003) (citing Ga. Code
Ann. § 15-16-23) . And while the State may require counties to
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fund the sheriff's office, "Georgia's Constitution precludes the
county from exercising any authority over the sheriff . . ." Id.
(citing Ga. Const. art. IX, § 2, ¶ 1(c) (1)). Thus, because Ware
County does not have any power over Defendant Royal's hiring
decisions, it cannot be said to have a custom or practice of
permitting constitutional violations through the Sheriff's
Office's hiring practices. See Pembaur v. City of Cincinnati,
475 U.S. 469, 479 (1986) ("The 'official policy' requirement was
intended to distinguish acts of the municipality from acts of
employees of the municipality, and thereby make clear that
municipal liability is limited to action for which the
municipality is actually responsible."); cf. Hart v. Edwards
2009 WL 691069, at *11 (M.D. Ga. 2009) (granting summary
judgment in a § 1983 action in favor of defendant county that
was not in a position to exercise control over sheriff's
employment decisions).
In his Response to Defendants' Motion to Dismiss, Plaintiff
cites Pembaur v. Cincinnati in support of his claim that Ware
County is liable for Plaintiff's termination. See Dkt. no. 17-1,
p. 11. Plaintiff offers virtually no explanation as to how
Pembaur establishes Ware County's liability in this case. In
Pembaur, the Supreme Court held that "it is plain that municipal
liability may be imposed for a single decision by municipal
policyrnakers under appropriate circumstances." Pembaur, 475 U.S.

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at 480. There is no allegation in the complaint that one of Ware
County's municipal policymakers made the decision to terminate
Plaintiff. At most, there is an inference that Ware County
temporarily perpetuated Defendant Royal's alleged fraud by
appealing Plaintiff's award of unemployment benefits. But the
complaint never attaches this decision by "the County" to a
municipal policymaker or even states how this appeal would give
rise to a federal claim. Pembaur, then, is inapposite, and will
not save Plaintiff's § 1983 claims against Ware County from
dismissal.
II. State Law Claims

In light of Plaintiff's withdrawal of certain claims, the
only state law claims that remain are the negligent retention
and intentional infliction of emotional distress claims against
Defendants Royal and Williams in their individual capacities.
Because the survival of the intentional infliction of emotional
distress claims against Defendant Williams may impact the
disposition of the negligent retention claim against Defendant
Royal, the Court will address the intentional infliction of
emotional distress claims first. Both defendants have asserted
Georgia's qualified immunity defense as to the state law claims.
a. Intentional Infliction of Emotional Distress

Plaintiff brings a claim for intentional infliction of
emotional distress against Defendant Royal and "Defendants,"
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generally. Presumably, this includes both Defendants Royal and
Williams in their individual capacities; although Defendant
Williams is never mentioned by name in Count IX, that Count
incorporates by reference the factual allegations stated earlier
in the complaint.
In Georgia, to prevail on a claim of intentional infliction
of emotional distress, a plaintiff must show that:
(1) the conduct giving rise to the claim was
intentional or reckless; (2) the conduct was extreme
and outrageous; (3) the conduct caused emotional
distress; and (4) the emotional distress was severe.
The defendant's conduct must be 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. Whether a claim rises to the
requisite level of outrageousness and egregiousness to
sustain a claim for intentional infliction of
emotional distress is a question of law.
Steed v. Fed. Nat. Mort. Corp., 689 S.E.2d 843, 851-52 (Ga. Ct.
App. 2009)
It is unclear from Plaintiff's complaint what conduct by
Defendant Williams supports his claim against her for
intentional infliction of emotional distress. In his response in
opposition to Defendants' motion to dismiss, Plaintiff includes
a laundry list of allegations that he argues support his claim. 3
Only one of these pertains to Defendant Williams, and it

The response, of course, is not the complaint, and cannot be relied upon to
deny Defendants' motion to dismiss. However, the complaint is so deficient as
to Plaintiff's intentional infliction of emotional distress claim against
Defendant Williams that the Court must look to it to decide, at least, where
to begin.
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references her "total disregard of Mr. Ponsell's authority."
Dkt. no. 17-7, P. 9. This complaint in Plaintiff's response must
reference the allegations in Plaintiff's complaint regarding
Defendant Williams's insubordination. See, e.g., Dkt. no. 1,
¶ 37 ("Defendant Williams ignored Mr. Ponsell's authority,
disregarding Mr. Ponsell's direct orders.") . Additionally, while
the complaint never makes this allegation crystal-clear, it
could be interpreted to assert an intentional infliction of
emotional distress claim against Defendant Williams for her
alleged involvement in a conspiracy to have Plaintiff fired.
The bare allegation that Defendant Williams's
insubordination is intentional, extreme, and outrageous such
that it causes Plaintiff severe emotional distress is patently
deficient to survive Defendants' motion to dismiss. Perhaps
Plaintiff means to refer to specific instances where Defendant
Williams's manner of defiance was itself outrageous. However, a
charge of "insubordination" generally is neither outrageous
enough to support a claim for intentional infliction of
emotional distress nor specific enough to place Defendants on
notice of the specific conduct Plaintiff complains of. See
Twombly, 550 U.S. at 570 (holding that pleading does "not
require heightened fact pleading of specifics, but only enough
facts to state a claim to relief that is plausible on its
face."); Phinazee v. Interstate Nationalease, Inc., 514 S.E.2d
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843, 845 (Ga. Ct. App. 1999) ('Whether a claim rises to the
requisite level of outrageousness and egregiousness to sustain a
claim for intentional infliction of emotional distress is a
question of law.") . Therefore, the complaint does not support a
claim for intentional infliction of emotional distress against
Defendant Williams for her alleged insubordination.
And to the extent that the complaint may contain an
allegation of intentional infliction of emotional distress
against Defendant Williams based on her alleged participation in
a First Amendment retaliation conspiracy, that claim also fails.
As noted above, Plaintiff failed to allege sufficient facts to
support the underlying conspiracy claim against Defendant
Williams, and any attendant intentional infliction of emotional
distress claim against Williams based on this alleged conspiracy
must also fail. Thus, because both potential theories of an
intentional infliction of emotional distress claim against
Defendant Williams fail, this claim against Defendant Williams
must be DISMISSED.
As to Defendant Royal, though, the allegations in the
complaint clearly allege that Defendant Royal's allegedly false
statement that Plaintiff wished to resign, along with his
subsequent termination, caused Plaintiff severe emotional
distress. As Georgia courts have recognized, "an employer's
threats and retaliatory activities satisfy the requisite element
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of outrageousness supportive of a claim for intentional
infliction of emotional distress." Yarbray v. S. Bell. Tel. &
Tel. Co., 409 S.E.2d 835, 838 (Ga. 1991) . In a factually similar
case to this one, the Eleventh Circuit applied this reasoning
when affirming a district court's denial a defendant company's
motion to dismiss when the plaintiff had alleged that he
suffered threats, humiliation, supervisory indifference, false
accusations, and was ultimately fired after he reported to his
supervisors a safety hazard at his workplace. Harris v. Proctor
& Gamble Cellulose Co., 73 F.3d 321, 323-25 (11th Cir. 1996).
Thus, Plaintiff has alleged facts sufficient to support his
claim of intentional infliction of emotional distress against
Defendant Royal in his individual capacity.
Defendant Royal argues that, regardless of whether or not
Plaintiff has adequately stated this claim, he is nevertheless
entitled to dismissal because of his qualified immunity from
suit in his individual capacity. In Georgia, public officials
are immune from personal liability for discretionary acts taken
within the scope of their official authority "and done without
willfulness, malice, or corruption." Murphy v. Bajjani, 647
S.E.2d 54, 56 (Ga. 2007) (quoting Cameron v. Lang, 549 S.E.2d
341, 344 (Ga. 2001)). "Malice," as used in the Georgia
Constitution's provision providing for official qualified
immunity, has been construed to denote "express malice or malice
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in fact." See Ga. Const. Art. I, § II, 91 IX(d); Phillips v.
Hanse, 637 S.E.2d 11, 12-13 (Ga. 2006) . "Actual malice requires
a deliberate intention to do wrong." Phillips, 637 S.E.2d at 13.
Mere ill will or "rancorous personal feelings" towards a
plaintiff will not rise to the level of actual malice when
paired with a lawful act—the official must have acted with a
"deliberate intention to do a wrongful act." Id. (citing Merrow
v. Hawkins, 467 S.E.2d 336, 337 (Ga. 1996)).
Here, Plaintiff has plainly alleged that Royal misconstrued
his letter requesting reassignment so that he may terminate
Plaintiff in retaliation for raising awareness of the Sheriff's
tolerance for criminal activity among his deputies. See, e.g.
Dkt. no. 7, ¶ 149. Terminating a Sheriff's deputy in retaliation
for such speech is a wrongful act in violation of the First
Amendment, and Plaintiff has clearly alleged this retaliation,
and its attendant claim for intentional infliction of emotional
distress, against Defendant Royal in his individual capacity.
Thus, Defendants' motion to dismiss Plaintiff's claim for
intentional infliction of emotional distress against Defendant
Royal in his individual capacity is DENIED.
b. Negligent Retention

Plaintiff brings a negligent retention claim against
Defendants Williams and Royal in their individual capacities for
Royal's negligent hiring and retention of Williams. Plaintiff
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claims that if Defendant Royal "had terminated Defendant
Williams with the first reports of her lawlessness, Mr. Ponsell
would not have suffered the harm he has suffered in this case."
Dkt. no. 1, ¶ 146.
Naturally, Defendant Williams cannot be held liable for her
own negligent hiring and retention, and so this claim against
her must be DISMISSED.
A charge of negligent hiring and retention is more
appropriately brought against Defendant Royal, who made the
hiring and firing decisions at the Ware County Sheriff's Office.
"[A] defendant employer has a duty to exercise ordinary care not
to hire or retain an employee the employer knew or should have
known posed a risk of harm to others where it is reasonably
foreseeable from the employee's 'tendencies' or propensities
that the employee could cause the type of harm sustained by the
plaintiff." Munroe v. Univ. Health Servs., Inc., 596 S.E.2d 604,
606 (Ga. 2004). In Munroe, the Georgia Supreme Court rejected
the plaintiff's "but for" argument that the defendant was liable
for the negligent hiring or retention of the errant employee
because this employment provided the employee with the access or
opportunity to injure the plaintiff. Id.
Here, Plaintiff alleges that Defendants Williams and
Royal's conspiracy is what terminated his employment and caused
his injuries. However, the "tendencies or propensities" that
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Plaintiff reported to Defendant Royal were Plaintiff Williams's
tendencies to steal, act insubordinately, and surreptitiously
record others' conversations. In essence, Plaintiff reported to
Defendant Royal that Defendant Williams was a thieving, unruly
snoop, not that she was conspiratorial. As such, Defendant Royal
was not aware of the specific "tendencies or propensities" of
Defendant Royal that allegedly contributed to Plaintiff's
termination, and Defendant Royal cannot be liable for negligent
retention under these circumstances.
Additionally, to the extent that the complaint can be
interpreted to contain a latent claim of intentional infliction
of emotional distress against Defendant Williams for her
insubordination, that claim could itself serve as the basis of a
negligent retention claim against Defendant Royal. 4 After all,
Plaintiff does allege that Defendant Royal knew of Defendant
Williams's insubordination. However, as discussed above in part
II.a, the complaint fails to adequately allege a claim of
intentional infliction of emotional distress against Defendant
Williams, and such an injury thus cannot be the basis for a
negligent retention claim against Defendant Royal.

The Court reiterates, though, that the complaint makes no explicit
connection between Defendant Williams's conduct and Plaintiff's intentional
infliction of emotional distress claims. Even the inference of these claims
only arises from an extremely forgiving interpretation of Plaintiff's
complaint.
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Finally, Plaintiff's complaint essentially makes the "but
for" argument refuted in Munroe: "Had Defendant Royal terminated
Defendant Williams with the first reports of her lawlessness,
Mr. Ponsell would not have suffered the harm he has suffered in
this case." Dkt. no. 1, 91 146. Plaintiff's complaint
fundamentally misconstrues the claim of negligent retention, and
thus fails to adequately state that claim such that relief may
be granted. Plaintiff's negligent hiring and retention claim,
then, is DISMISSED.
CONCLUSION

Plaintiff's complaint fails to allege facts that would
support some of the claims he seeks against Defendants. However,
in addition to those claims that Defendants have conceded will
survive a motion to dismiss, Plaintiff has alleged facts
sufficient to support a claim of intentional infliction of
emotional distress against Defendant Royal in his individual
capacity. Defendants' Motion to Dismiss (Dkt. no. 10) is GRANTED
in part and DENIED in part—it is granted as to all claims

addressed above except for the claim of intentional infliction
of emotional distress against Defendant Royal in his individual
capacity. The only claims that will proceed are the First
Amendment retaliation claim, the Georgia whistleblower claim,
and the intentional infliction of emotional distress claim

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against Defendant Royal in his individual capacity. Defendants
Williams and Ware County are hereby DISMISSED from this action.

SO ORDERED, this 17TH day of March, 2015.

eq

(~'

~

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

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