ATWATER et al.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
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. 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.
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).
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...[.]
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.
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; and that disciplinary charges were being
brought pursuant to OCGA § 20-2-940.
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.
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.
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. 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.
Atwater and Rutland contend that they are entitled to
official immunity because their actions did not violate any
clearly established law. We agree.
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.
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 ...