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Atwater v. Tucker

Court of Appeals of Georgia, First Division

October 24, 2017

ATWATER et al.


          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 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 S.E.2d 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 S.E.2d 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 S.E.2d 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 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...[.]

         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 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 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 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.

         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 S.E.2d 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 S.E.2d 516) (2009) (citation omitted; emphasis supplied); Board of Commissioners of Effingham County v. Farmer, 228 Ga.App. 819, 824 (2) (493 S.E.2d 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 reasonably competent public official should know the established law governing his conduct." Gardner v. Rogers, 224 Ga.App. 165, 167 (480 S.E.2d 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 EffinghamCounty, 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 S.E.2d 478) (1997) (citation omitted). "In all but the most exceptionalcases, qualified immunity protects government officials performing ...

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