The opinion
FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.
NOTICE: Motions for reconsideration m us t be
physically re ceived in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 24, 2017
In the Court of Appeals of Georgia
A17A0722. ATWATER et al. v. TUCKER.
MERCIER, Judge.
Kelly H. Tucker (a middle school teacher), filed a complaint for damages
pursuant to 42 USC § 1983 against Patrick Atwater, Jr. (the Superintendent of Tift
County Public Schools), and Kim Rutland, (the Chairperson of the Tift County Board
of Education), alleging that they violated her constitutional right to free speech by
suspending her for five days and requiring her to attend diversity training after she
posted a particular comment on a social media website.1 Atwater and Rutland filed a
“Motion for Judgment on the Pleadings or in the Alternative Motion to Dismiss with
Prejudice” asserting, inter alia, that they were entitled to official and sovereign
1
Tucker also asserted claims against other defendants, but those claims are not
relevant to this appeal.
immunity. The trial court considered the pleadings, arguments, affidavits and transcript
of the suspension hearing and, expressly treating the motion as one for summary
judgment, denied the motion. We granted Atwater’s and Rutland’s application for
interlocutory appeal. For the reasons that follow, we reverse the judgment of the trial
court.
“[B]ecause the trial court considered matters outside the pleadings, the motion
[for judgment on the pleadings] was converted to one for summary judgment.” Sims
v. First Acceptance Ins. Co. of Ga., Inc., 322 Ga. App. 361, 363 (3) (a) (745 SE2d
306) (2013) (citation omitted). “[S]ummary judgment is proper when there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of
law.” Navy Fed. Credit Union v. McCrea, 337 Ga. App. 103, 105 (786 SE2d 707)
(2016) (punctuation and footnote omitted). “On appeal from the grant of summary
judgment, we construe the evidence most favorably towards the nonmoving party,
who is given the benefit of all reasonable doubts and possible inferences.” Nyugen v.
Southwestern Emergency Physicians, P. C., 298 Ga. 75, 82 (3) (779 SE2d 334)
(2015).
So construed, the evidence shows the following. During the 2014-2015 school
year, Tucker was employed as a middle school teacher in the Tift County Public
2
School System; the school system was managed by the Tift County Board of
Education (“the Board”). On December 6, 2014, a Christmas parade was held in
Tifton, Georgia, at which demonstrators displayed signs that read “Black Lives
Matter,” in what was “commonly known as a ‘Ferguson protest.’” A local radio show
host posted a question on Facebook regarding the appropriateness of the
demonstration. Tucker posted a comment in response to the question, then engaged
in a “posting dialogue” with another person. As part of that dialogue, Tucker posted
the following public comment on Facebook, which comment precipitated the
underlying disciplinary proceeding:
It’s turned into a race matter. What about the thugs that beat the father
in his vehicle because he didn’t slow down. What about the thugs that
shot the college baseball player because they were bored. The list can go
on and on. If the dude hadn’t have stolen [sic], he would be alive. I think
the signs should read, TAKE THE HOOD OFF YOUR HEAD, AND
PULL UP YOUR DANG PANTS, AND QUIT IMPREGNATING
EVERYBODY. I’m tired of paying for these sorry *&^ thugs...I would
much rather my hard earned money that the government takes go to
people who need it, such as abusive [sic] adults and children, not to
mention the animals they beat and fight too...That’s all I’m saying...[.]
3
Tucker’s comment (the “post”) “went viral,” and many people in the
community saw, shared, forwarded, and discussed the post. On about December 8,
2014, several individuals contacted Atwater to express concern about Tucker’s post,
including a Board member, a high school student, and a county commissioner. The
commissioner expressed her concern and her constituents’ concern that “a teacher .
. . would post such a message.” Later that month, several other individuals contacted
Atwater and expressed their concerns about the post; some parents requested that
their children be removed from Tucker’s class; and several teachers and administrators
at the school where Tucker taught lodged complaints with the school principal
regarding the post.
In January 2015, Atwater issued a letter to Tucker notifying her that he was
recommending to the Board that she be suspended for ten days and receive diversity
training because of the post, and notifying her that a hearing would be held on the
matter. Atwater wrote that Tucker had posted “an offensive message . . . which went
viral.” Atwater wrote that “[t]hese stereotypes [in the post] . . . are highly offensive to
the African American community, and to members of our community as a whole”; that
Atwater received complaints about the post from several of Tucker’s colleagues,
members of the community, former students, and parents; that her message “is very
4
disturbing to [her] African American colleagues, students, and [her] student’s parents
and is disruptive to the educational environment at [the school]”; that Tucker’s posting
of the comment demonstrated “a lack of professional judgment” and “an inappropriate
attitude toward” her students; that Tucker violated Board policies and Standard 10 of
the Georgia Code of Ethics for Educators;2 and that disciplinary charges were being
brought pursuant to OCGA § 20-2-940.3
The Board held a hearing at which Tucker and various school administrators,
teachers, and parents testified. See OCGA § 20-2-1160 (a) (regarding the authority of
county boards of education to conduct hearings). The testimony included the
following: witnesses interpreted the post as referring to and “stereotyping” or unfairly
characterizing African-American males; a parent requested to have her child removed
from Tucker’s class; several people brought copies of the post to the assistant
2
Standard 10 provides: “An educator shall demonstrate conduct that follows
generally recognized professional standards and preserves the dignity and integrity of
the teaching profession. Unethical conduct includes but is not limited to any conduct
that impairs and or diminishes the certificate holder’s ability to function professionally
in his or her employment position or behavior or conduct that is detrimental to the
health, welfare, discipline, or morals of students.” The Code was in the Employee
Handbook for the Tifton County Public School System; Tucker had received a copy.
3
OCGA § 20-2-940 (a) sets forth grounds for terminating or suspending
teachers’ employment contracts. Grounds enumerated include: (2) insubordination, (3)
wilful neglect of duties, (4) immorality, and (8) any other good and sufficient cause.
5
principal and sought to involve him in the matter; a teacher at the school complained
to the principal and said that, in light of the post, it would be difficult for her to
continue to work with Tucker; the principal stated that 30 percent of the students at
the school were African-American, and opined that the post would cause problems
with the student disciplinary processes (as parents would have grounds to argue that
Tucker was disciplining some students based upon their race); Atwater opined that the
post disrupted operations by deteriorating the community’s trust in the school system;
several witnesses testified that they were concerned that, based on the views expressed
in the post, Tucker would treat students differently based upon race; when asked if the
post had any effect on the school, the assistant principal replied, “[n]ot directly. . .
.But, indirectly, it has,” referred to the student class change and added that the post
had the “potential” to cause problems.
In its decision, the Board found that the post showed a “clear lack of judgment
on the part of a public school teacher presently teaching African American students,”
that it created a “toxic atmosphere at the school,” and that it “had the effect of
undermining the trust” that students, their parents, and Tucker’s colleagues had in her
ability to effectively teach and mentor the students. The Board found “good and
6
sufficient cause” to suspend Tucker for five days and to require her to participate in
diversity training.
Tucker filed the underlying complaint against Atwater, in his individual capacity
and his official capacity as school superintendent, and Rutland, in her individual
capacity and her official capacity as Board chairperson, seeking redress under 42 USC
§ 1983 for alleged violations of her right to free speech.4 The trial court denied
Atwater’s and Rutland’s motion for judgment on the pleadings or to dismiss, finding
that they were not entitled to immunity and that Tucker had made a proper First
Amendment challenge.
4
42 USC § 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . ., subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.
A plaintiff in a § 1983 action must show (1) “that he has been deprived of a right
secured by the constitution and laws of the United States, and [(2) that] the defendant
acted under color of state law.” Poss v. Moreland, 253 Ga. 730, 731 (324 SE2d 456)
(1985) (punctuation omitted).
7
1. Atwater and Rutland contend that they are entitled to official immunity
because their actions did not violate any clearly established law. We agree.
“The doctrine of official immunity, also known as qualified immunity, offers
public officers and employees limited protection from suit in their personal capacity.”
Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001) (footnote omitted).
Official immunity “gives government officials performing discretionary functions
complete protection from individual claims brought pursuant to 42 USC § 1983, if
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Kline v. KDB, Inc., 295 Ga. App.
789, 793 (2) (673 SE2d 516) (2009) (citation omitted; emphasis supplied); Board of
Commissioners of Effingham County v. Farmer, 228 Ga. App. 819, 824 (2) (493
SE2d 21) (1997). “Therefore, in order to succeed, the plaintiff in a civil rights [§ 1983]
action has the burden of proving that a reasonable public official could not have
believed that his or her actions were lawful in light of clearly established law.” Board
of Commissioners of Effingham County, supra at 823-824.
“The test for determining whether a defendant is protected from suit by the
doctrine of qualified immunity is the objective reasonableness of the defendant’s
conduct as measured by reference to clearly established law; in this regard, a
8
reasonably competent public official should know the established law governing his
conduct.” Gardner v. Rogers, 224 Ga. App. 165, 167 (480 SE2d 217). “For the law
to be clearly established to the point that qualified immunity does not apply, the law
must have earlier been developed in such a concrete and factually defined context to
make it obvious to all reasonable government actors, in the defendant’s place, that
‘what he is doing’ violates federal law.” Board of Commissioners of Effingham
County, supra at 824. Stated another way, “[u]nless a government agent’s act is so
obviously wrong . . . that only a plainly incompetent officer or one who was knowingly
violating the law would have done such a thing, the government actor has immunity
from suit.” Maxwell v. Mayor & Alderman of the City of Savannah, 226 Ga. App.
705, 707 (1) (487 SE2d 478) (1997) (citation omitted). “In all but the most exceptional
cases, qualified immunity protects government officials performing discretionary
functions from the burdens of civil trials and from liability for damages.” Board of
Effingham County, supra at 823 (emphasis supplied). The issue of immunity is a
question of law and is reviewed de novo. Pearce v. Tucker, 299 Ga. 224, 227 (787
SE2d 749) (2016).
Although the law is well-established that the [S]tate may not demote or
discharge a public employee in retaliation for speech protected under the
9
[F]irst [A]mendment, a public employee’s right to freedom of speech is
not absolute. In Pickering [v. Board of Education, 391 U. S. 563 (88
SCt 1731, 88 SCt 1731) (1968)], the landmark case concerning a public
employee’s [F]irst [A]mendment rights, the Supreme Court held that a
public employee’s interests are limited by the [S]tate’s need to preserve
efficient governmental functions. The [S]tate has interests as an employer
in regulating the speech of its employees that differ significantly from
those it possesses in connection with regulation of the speech of the
citizenry in general. The problem in any case is to arrive at a balance
between the interests of the employee as a citizen, in commenting upon
matters of public concern and the interest of the [S]tate, as an employer,
in promoting the efficiency of the public services it performs through its
employees.
Department of Corrections v. Derry, 235 Ga. App. 622, 625 (3) (a) (510 SE2d 832)
(1998) (footnote, citation and punctuation omitted); see Stewart v. Baldwin County
Bd. of Educ., 908 F.2d 1499, 1505 (11th Cir. 1990); Bryson v. City of Waycross, 888
F.2d 1562, 1565 (V) (A) (11th Cir. 1989).
In applying Pickering,
[a] four-stage analysis has evolved. First, the court must determine if the
employee’s speech may be fairly characterized as constituting speech on
a matter of public concern. Second, if the speech addresses a matter of
public concern, the court must then conduct a balancing test in which
it weighs the First Amendment interests of the employee against the
10
interest of the [S]tate, as an employer, in promoting the efficiency of the
public services it performs through its employees. Third, if the
employee’s claim survives the balancing test, the fact-finder must
determine whether the employee’s speech played a substantial part in the
government’s decision to discharge the employee. Finally, if the
fact-finder determines that the employee’s speech played a substantial
part in the employee’s discharge, the [S]tate must prove by a
preponderance of the evidence that it would have discharged the
employee even in the absence of the speech.
Derry, supra (footnote and punctuation omitted; emphasis supplied).
Assuming that Tucker made her post as a citizen and the post was a comment
on a matter of public concern, the courts must “balance . . . the interests of [Tucker]
as a citizen, in commenting upon matters of public concern and the interests of the
[government] as an employer, in promoting the efficiency of the public services it
performs through its employees.” Pickering, 391 U. S. at 568 (II). In striking this
balance, the courts consider whether the employee’s speech impairs the ability of
superiors to discipline subordinates, affects harmony among co-workers, impairs
working relationships for which loyalty and confidence are necessary, or interferes
with the operation of the government entity. Rankin v. McPherson, 483 U. S. 378, 388
(107 SCt 2891, 97 LE2d 315) (1987).
11
Government employers are permitted to take action against employees who
engage in speech that “may unreasonably disrupt the efficient conduct of government
operation[s].” Tindal v. Montgomery County Commission, 32 F.3d 1535, 1540 (III)
(A) (11th Cir. 1994)). It has been recognized that where “close working relationships
are essential to fulfilling public responsibilities, a wide degree of deference [is given]
to the employer’s judgment[.]” Connick v. Myers, 461 U. S. 138, 151-152 (II) (C) (103
SCt 1684, 75 LE2d 708) (1983).
In this case, Atwater and Rutland brought the disciplinary proceeding against
Tucker for alleged violations of OCGA § 20-2-940 (a) (which permits the suspension
of a teacher for specified reasons, including “good and sufficient cause”) and
Standard 10 (which sets forth standards for professional conduct for educators),
asserting that her posting of the comment was disruptive to the school environment in
which she taught and detailing the grounds for the disciplinary action. OCGA § 20-2-
940 sets out the notice and procedural requirements for such disciplinary action, and
there is no claim that the required procedures were not followed.
Here, there was evidence, recounted above, that Tucker’s post interfered with
the operation of the middle school where she taught. Although Tucker asserts that
“there is no evidence that there was any actual disruption of the educational
12
environment as the result of Appellee’s posts,”only “concern[s]” that the post could
be disruptive, that assertion is belied by record evidence that the post did in fact affect
the operations of the school.5 Moreover, a government has discretion to restrict an
employee’s speech “that has some potential to affect the entity’s operations.” Garcetti
v. Ceballos, 547 U. S. 410, 418 (II) (126 SCt 1951; 164 LE2d 689) (2006) (emphasis
supplied).
As the Court acknowledged in Garcetti, “conducting these inquiries sometimes
has proved difficult.” Garcetti, supra. “This is the necessary product of ‘the
enormous variety of fact situations in which critical statements by teachers and other
public employees may be thought by their superiors . . . to furnish grounds for
[disciplinary action].” Id. (citation omitted). The instant case presents one of an
5
Notably, the assertion in Tucker’s brief that “both administrators who testified
for the Appellants at the Board hearing testified that there was absolutely no
interruption of school operations” materially misstates the administrators’ testimony
shown on the record pages she has cited.
We also note that Tucker’s brief includes the following statement: “In fact, to
this date, no student at Eighth Street Middle School has even voiced an objection to
Appellee’s posts; perhaps because they, too, are tired of dealing with thugs of all races
who walk around with hoods over their heads, sagging pants and who commit random
acts of violence.” Tucker provides no citations to the record to support this statement.
See Court of Appeals Rule 25; Leone v. Green Tree Servicing, LLC, 311 Ga. App.
702, 704 (1) (716 SE2d 720) (2011).
13
“enormous variety of fact situations,” requiring a difficult inquiry, and there is no
“bright-line” standard that would have put a reasonable employer on notice of a
constitutional violation under these facts. See generally Board of Commissioners of
Effingham County, supra at 824 (2). Tucker has pointed to no authority that put
Atwater and Rutland on such notice under the circumstances presented in this case.
Tucker bore the burden of proving an improper employer motive, but she has not met
that burden. See Heffernan v. City of Paterson, N. J., _ U. S. _ (136 SCt 1412, 1419;
_ LE2d _) (2016).
Atwater and Rutland did not violate any clearly established law of which a
reasonable person would have known. See Harlow v. Fitzgerald, 457 U. S. 800, 818
(102 SCt 2727; 73 LE2d 396) (1982); see also Maxwell, supra; Dartland v.
Metropolitan Dade County, 866 F.2d 1322 (11th Cir. 1989). Because “pre-existing
law [does not] dictate, that is, truly compel (not just suggest or allow or raise a
question about), the conclusion for every like-situated, reasonable government agent
that [taking disciplinary action against Tucker for her post] violates [the First
Amendment] in the circumstances,” the trial court erred in ruling that Atwater and
Rutland were not entitled to official immunity. See Board of Commissioners of
Effingham County, supra at 824 (2) (emphasis and citation omitted).
14
2. Atwater and Rutland were also entitled to judgment as a matter of law to the
extent Tucker asserted claims against them in their official capacities.
A local government such as the [c]ounty may not be sued under § 1983
for an injury inflicted solely by its employees or agents. Instead, it is
when execution of a government’s policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity
is responsible under § 1983. This rule also applies to local government
officials sued in their official capacities.
Schroeder v. DeKalb County, 341 Ga. App. 748, 754 (5) (b) (802 SE2d 277) (2017).
Tucker did not allege facts that showed a government policy or custom of permitting
a constitutional violation. See Schroeder, supra at 754-755 (5) (b) (“To establish the
county’s official policy [permitting a particular constitutional violation], [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.”).
15
Because Atwater and Rutland were entitled to judgment as a matter of law, the
trial court erred by denying their motion. See Harper v. Patterson, 270 Ga. App. 437,
440 (2) (606 SE2d 887) (2004).
Judgment reversed. Barnes, P. J., concurs. McMillian, J., concurs in
judgment only.
16