United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S NON-FINAL REPORT AND
T. WALKER UNITED STATES MAGISTRATE JUDGE.
case is presently before the Court on Defendants Atlanta
Public Schools and Isis Manboard's (together
“Defendants”) Pre-Answer Motion to Dismiss. (Doc.
2). For the reasons outlined below, this Court
RECOMMENDS that Defendants' Motion to
Dismiss be GRANTED IN PART AND DENIED IN
PART. (Doc. 2). All of Plaintiff's claims
against Defendant Manboard be DISMISSED. All
of Plaintiff's claims against Defendant Atlanta Public
Schools, except Plaintiff's ADEA claim, should also be
MOTION TO DISMISS
Millicent Wright (“Plaintiff”) filed this lawsuit
on February 6, 2017, in the Superior Court of Fulton County,
Georgia. (Doc. 1-1). On March 16, 2017, Defendants removed
the case to this Court. (Doc. 1). In Plaintiff's
Complaint, she argues Defendants discriminated against her
due to her age in violation of the Age Discrimination in
Employment Act of 1967 (“ADEA”) when they
terminated her from her substitute teacher position. (Compl.
¶ 17). Plaintiff also claims Defendants violated 42
U.S.C. § 1983 because they failed to afford her
constitutionally required due process by terminating her
based on unsubstantiated allegations. (Compl. ¶ 25).
Plaintiff also asserts claims for libel, slander, and
intentional infliction of emotional distress. (Compl. ¶
Plaintiff's Complaint, she alleges that from 1960 through
1996, she served as a teacher and an administrator with the
Atlanta Public Schools (“APS”). (Compl. ¶
6). After retiring in 1996, Plaintiff, age seventy-nine,
began substitute teaching with APS and began a long-term
substitute teaching assignment at Adamsville Elementary
School in about January 2016. (Compl. ¶ 7-8). On about
February 4, 2016, Defendant Isis Manboard, the principal at
Adamsville Elementary School, terminated Plaintiff because
Plaintiff allegedly “pinched a child's ear, ”
an accusation that was later changed to
“paddling” a child. (Compl. ¶¶ 5, 10).
Plaintiff denied the allegations and requested after
termination that APS investigate the alleged incident and
restore her good name as an educator. (Compl. ¶ 12).
After termination, Plaintiff alleges Defendants determined
that the allegations of pinching or paddling were false but
did not recant them. (Compl. 13). Plaintiff avers that she
timely filed a notice with the Equal Employment Opportunity
Commission (EEOC). (Compl. ¶ 18).
argue Plaintiff's claims against Defendant Isis Manboard
in Manboard's official capacity should be dismissed
because they are redundant with Plaintiff's claims
against APS. (Def.'s Br. 4-5). Defendants contend that to
the extent that Plaintiff asserts her ADEA claim against
Defendant Manboard in her individual capacity, her ADEA claim
should be dismissed because she is not, as an individual, an
employer within the meaning of the ADEA and therefore, cannot
be held individually liable for ADEA violations. (Def.'s
Br. 6-7). Defendants also argue Plaintiff failed to
sufficiently allege that she exhausted her administrative
remedies. (Def.'s Br. 6). Defendants further contend
that(1) Plaintiff's Section 1983 claims fail because she
cannot show that she had a property interest in her continued
employment or that her Constitutional injuries stemmed from a
custom, policy, or practice; (2) Plaintiff's state law
tort claims against APS are barred by sovereign immunity; (3)
Plaintiff's intentional infliction of emotional distress
claim fails because Plaintiff does not allege extreme and
outrageous behavior; (4) Plaintiff's defamation claims
fail because they are time-barred and she fails to plead
facts supporting the required elements of her claim, such as
whether or not Defendants published defamatory statements
about her; (5) Plaintiff's Section 1983 claim against
Defendant Manboard fails because Manboard is entitled to
qualified immunity; (6) Plaintiff's state law tort claims
against Defendant Manboard should be dismissed because
Manboard is entitled to official immunity; and (7)
Plaintiff's claim for punitive damages should be
dismissed because punitive damages are not available against
a government entity.
Motion to Dismiss Standard
is warranted under Rule 12(b)(6) if, assuming the truth of
the factual allegations of the plaintiff's complaint,
there is a dispositive legal issue which precludes relief or
it is based on an indisputably meritless legal theory.
Neitzke v. Williams, 490 U.S. 319, 326 (1989);
Brown v. Crawford Cnty., 960 F.2d 1002, 1009-10
(11th Cir. 1992). A Rule 12(b)(6) motion to dismiss also
tests the sufficiency of the complaint against the legal
standard set forth in Rule 8: “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). A complaint
“requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). To state a claim with sufficient
specificity requires that the complaint have enough factual
matter taken as true to suggest required elements of the
claim. Watts v. Fla. Int'l Univ., 495 F.3d 1289,
1296 (11th Cir. 2007); Hill v. White, 321 F.3d 1334,
1335 (11th Cir. 2003). Factual allegations in a complaint
need not be detailed but “must be enough to raise a
right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Twombly, 550 U.S.
at 555 (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 508 n.1 (2002)).
Plaintiff's ADEA Claims
alleges Defendants Manboard and APS discriminated against her
on the basis of her age when they terminated her from her
substitute teaching position in violation of the ADEA.
(Compl. ¶ 17); 29 U.S.C. §§ 621-634. Plaintiff
alleges Defendants leveled shifting, pretextual allegations
against her, first accusing her of pinching a child's ear
and then later accusing her of paddling a child in an effort
to justify their decision. (Compl. ¶ 15). Defendants
argue Plaintiff's ADEA claims against Defendant Manboard
in her official capacity should be dismissed because they are
redundant with her claims against Defendant APS. Defendants
contend that Plaintiff's claims against Manboard in her
individual capacity should also be dismissed because
individuals are not amenable to suit under the ADEA.
Defendants further argue that Plaintiff's ADEA claims
against both Defendants should be dismissed because she fails
to allege facts tending to show that she timely filed a
charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”).
Plaintiff's ADEA Claim Against Manboard in Her
Individual Capacity Should Be Dismissed
argue Plaintiff's ADEA claim against Defendant Manboard
in her individual capacity should be dismissed because she is
not an “employer” and therefore, not subject to
liability under the ADEA. The ADEA limits civil liability to
employers and not individual supervisors under the act.
Tobar v. Fed. Defenders Middle Dist. of Ga., 618 F.
App'x 982, 985 n.2 (11th Cir. 2015); Shuler v. Bd. of
Tr. of Univ. of Ala., 480 F. App'x 540, 543 (11th
Cir. 2012); Smith v. Lomax, 45 F.3d 402, 403 n.4
(11th Cir. 1995) (holding no individual liability under ...