United States District Court, S.D. Georgia, Augusta Division
RANDAL HALL, CHIEF JUDGE UNITED STATES DISTRICT JUDGE
case is brought under 42 U.S.C § 1983 and Title VII of
the Civil Rights Act of 1964 ("Title VII") and
revolves around Plaintiff Angela Rice's dismissal from
employment with the Richmond County Probate Court. Rice moves
the Court for leave to amend her complaint to include
allegations that she was jointly employed by Defendants Harry
B. James III ("Judge James") and the City of
Augusta; to explain that her 42 U.S.C. § 1981 claim will
be enforced through § 1983; to distinguish her racial
discrimination and retaliation claims; and to include facts
that will support her § 1983 claim. (Doc. 18, 1-2.)
Judge James opposes this motion and claims it is futile since
the amended complaint would still be subject to
dismissal.(Doc. 20-1, 1). This Court finds that some
of Rice's claims are viable and therefore leave to amend
should be granted.
to pleadings are governed by Rule 15 of the Federal Rules of
Civil Procedure, which states that courts
shouldufreely give leave when justice so
requires." Fed.R.Civ.P. 15(a)(2). However, the Court has
power to deny leave for undue delay, fairness, or futility.
Chen v. Lester, 364 Fed.Appx. 531, 538 (11th Cir.
2010) . An amendment is futile when the complaint would still
be subject to dismissal. Id.
Judge James complains that the process Rice served did not
comply with Rule 4 of the Federal Rules of Civil Procedure
and therefore an amended claim would still be subject to
dismissal. Apparently, Rice served Judge James with the City
of Augusta's summons and made the same mistake when she
served the City. However, Rule 4 "is a flexible rule
that should be liberally construed so long as a party
receives sufficient notice of the complaint."
Sanderford v. Prudential Ins. Co. of Am., 902 F.2d
897, 900 (11th Cir. 1990). The Court has discretion to extend
the deadline for service of process. Fed.R.Civ.P. 4 (m) .
This option is even available when the plaintiff has not
shown good cause for her mistake. Horenkamp v.
Van Winkle & Co., 402 F.3d 1129, 1132-33 (11th Cir.
2005). Relief would be appropriate, for example, when the
statute of limitations would prevent the plaintiff from
refiling her claim. Id. More than 18 0 days have
passed since Rice received her right-to-sue letter and
therefore her refiled Title VII claim would be time-barred.
See 42 U.S.C. 2000e-5(e). Accordingly, Rice is
directed to amend the summons in this case and serve them
upon the appropriate defendant with the amended complaint.
See Fed.R.Civ.P. 4(a)(2).
Judge James asserts that Rice's complaint is untimely
because it was not filed within ninety days of receiving her
right-to-sue letter, as required by 42 U.S.C. §
2000e-5(f). Green v. Union Foundry Co., 281 F.3d
1229, 1233-34 (11th Cir. 2002) . If the date of receipt is in
question, the Eleventh Circuit presumes that a right-to-sue
letter is received within three days after it is mailed.
Zillyette v. Capital One Financial Corp., 179 F.3d
1337, 1342 (11th Cir. 1999). In Rice's opposition to
Judge James's motion to dismiss, she attaches the
envelope of her right-to-sue letter, which she claims is
postmarked January 4, 2017. (Doc. 9, Exhibit 2). If this is
true, the presumed date of delivery would be January 7, 2017,
and Rice's complaint would be timely.
Rice proposes to amend her complaint to show Judge
James's office is covered by Title VII. To be subject to
Title VII, an entity must employ at least fifteen people. 42
U.S.C. § 2000e(b). To meet this requirement, Rice argues
that the City of Augusta and Judge James should be considered
joint employers. To determine if two state or local entities
should be treated as a single employer, the Court starts with
the presumption that entities classified as separate under
state law should not be aggregated. Lyles v. City of
Riviera Beach, Fla., 166 F.3d 1332, 1344 (11th Cir.
1999) . However, there are two ways to overcome this
presumption. First, the plaintiff proves that the purpose in
maintaining separate entities is to elude Title VII. Second,
the presumption of separateness is clearly outweighed by
factors indicating the two entities are so closely related
that they should be counted together. Id. at 1345.
Under the second method, the court considers factors such as
the ability to hire, transfer, discipline, or discharge;
create work schedules or direct work assignments; and the
obligation to pay or duty to train. Id. Whether
either of these standards has been met is a factual question
and may not be resolved through a motion to dismiss.
Id. Thus, the Court will allow Rice's proposed
amendments to her Title VII complaints against Judge James in
his official capacity and against the City of Augusta.
Rice proposes to add a § 1983 claim against Judge James
in his individual capacity for unlawful discrimination. Judge
James believes this claim is barred by qualified immunity,
and therefore the amendment is futile. When a plaintiff
brings a complaint against a local government officer in his
individual capacity, the officer may raise a defense based on
qualified immunity. Harlow v. Fitzgerald, 457 U.S.
800, 817 (1982). However, if the constitutional right
violated was clearly established, qualified immunity does not
apply. Id. Clearly established laws are those set by
precedent of the United States Supreme Court, the Eleventh
Circuit, and the Georgia Supreme Court. Snider v.
Jefferson State Cmty. Coll., 344 F.3d 1325, 1328 (11th
Cir. 2003). The case does not need to be directly on point
and only needs to give the defendant fair notice. Mitello
v. Sherriff of the Broward Sheriffs Office, 684
Fed.Appx. 809, 813 (11th Cir. 2017).
James contends that Rice has not alleged a violation of a
clearly established right. However, Rice claims she was the
victim of intentional racial discrimination. The Eleventh
Circuit has repeatedly held that the right to be free from
race discrimination in public employment is clearly
established. Boggle v. McClure, 332 F.3d 1347, 1355
(11th Cir. 2003); Alexander v. Fulton County, Ga.,
207 F.3d 1303, 1321 (11th Cir. 2000), overruled on other
grounds by Manders v. Lee, 338 F.3d 13 04 (11th Cir.
2003) . Since the Court cannot conclude at this point that
Judge James is protected by qualified immunity, Rice's
claim may be amended.
also wishes to allege a § 1983 claim of unlawful
retaliation against Judge James in his individual capacity.
However, unlike racial discrimination, freedom from
retaliation is not a clearly established right under the
Fourteenth Amendment. Jolivette v. Arrowood, 18 0
Fed.Appx. 883, 887 (11th Cir. 2006) . The Court therefore
finds Rice cannot amend her complaint to add such a claim.
Rice wishes to add a § 1983 claim against the City of
Augusta. Rice claims the City ignored its Equal Employment
Opportunity (EEO) policy. Rice points to two other occasions
where police officers made complaints about Judge James's
discriminatory conduct and argues that the City is liable for
failing to address his behavior. Under § 1983, the City
might be liable for its failure to supervise if it tacitly
approved the conduct or was deliberately indifferent and this
led to the plaintiff's injuries. Cannon v.
Taylor, 782 F.2d 947, 951 (11th Cir. 1986). If Rice
proves the City knew about the two previous claims and those
claims formed a flagrant, persistent pattern of violations,
it might be liable. Goodman v. Kimbrough, 718 F.3d
1325, 1335 (11th Cir. 2013) . Therefore, Rice may include her
proposed § 1983 claim against the City of Augusta.
upon consideration, Rice's Motion for Leave to File an
Amended Complaint (doc. 18-1) is hereby
GRANTED. Rice shall file an amended
complaint within fourteen (14) days hereof in conformity with
this order. The amended complaint will supersede the original
complaint in its entirety. Accordingly, Defendant's
motion to dismiss the original complaint (doc. 5) and motion
for a more definite statement (doc. 5) are DENIED AS
MOOT. This does not prejudice Defendant's
ability to file a motion to dismiss the amended complaint if