Opinion
Case No. 1:19-CV-42 (LAG)
2020-03-16
Lezley B. ANDERSON, Plaintiff, v. SUMTER COUNTY SCHOOL DISTRICT, et al., Defendants.
Kenneth E. Barton, III, Cooper, Barton & Cooper, LLP, Bruce D. Dubberly, IV, Mason Gaines Bryan, Michael Devlin Cooper, Macon, GA, for Plaintiff. Brian C. Smith, Phillip L. Hartley, Gainesville, GA, Kenneth P. Robin, Cumming, GA, Megan Nicole Martin, Michael James Walker, Atlanta, GA, for Defendants.
Kenneth E. Barton, III, Cooper, Barton & Cooper, LLP, Bruce D. Dubberly, IV, Mason Gaines Bryan, Michael Devlin Cooper, Macon, GA, for Plaintiff.
Brian C. Smith, Phillip L. Hartley, Gainesville, GA, Kenneth P. Robin, Cumming, GA, Megan Nicole Martin, Michael James Walker, Atlanta, GA, for Defendants.
ORDER
LESLIE A. GARDNER, JUDGE
Before the Court is Defendants' Motion for Judgment on the Pleadings (Doc. 16 ). For the reasons set forth below, the Motion is GRANTED in part and DENIED in part . Plaintiff's False Claims Act (FCA) and 42 U.S.C. § 1983 claims against Defendant Sumter County School District (SCSD) are DISMISSED with prejudice . Plaintiff's § 1983 claim against Defendant Torrance Choates and Georgia Whistleblower Act (GWA) claim against SCSD remain.
PROCEDURAL BACKGROUND
Plaintiff Lezley B. Anderson, Ed. D., brought this action against Defendants SCSD and Superintendent Torrance Choates, in his individual capacity, on March 8, 2019. (Doc. 1.) In her Complaint, Plaintiff alleges that SCSD—her former employer—retaliated against her in violation of the FCA, 31 U.S.C. § 3730(h) (Count I) and the GWA, O.C.G.A. § 45-1-4 ( Count II). (Id. ¶¶ 80–107.) Plaintiff further alleges that both Defendants discriminated against her on the basis of race in violation of the Fourteenth Amendment, in claims brought pursuant to 42 U.S.C. § 1983 (Count III). (Id. ¶¶ 108–115.)
Defendants answered on May 7, 2019. (Doc. 10.) On August 8, Defendants filed the instant Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c) , seeking dismissal of all claims. (Doc. 16.) Following Plaintiff's Response (Doc. 27 ) and Defendants' Reply (Doc. 28 ), the Motion is now ripe for the Court's review. See M.D. Ga. L.R. 7.3.1(A).
LEGAL STANDARD
"[A] motion for judgment on the pleadings ... is subject to the same standard as a Rule 12(b)(6) motion to dismiss." Payne v. Doco Credit Union , 734 F. App'x 623, 627 (11th Cir. 2018) (internal quotation marks omitted). To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain specific factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible on its face if the complaint alleges enough facts to "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A complaint must plead "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" of the defendant's liability. Twombly , 550 U.S. at 556, 127 S.Ct. 1955. The Court must "take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiffs," but the same liberal reading does not apply to legal conclusions. Edwards v. Prime, Inc. , 602 F.3d 1276, 1291 (11th Cir. 2010). "[A] plaintiff armed with nothing more than conclusions" cannot "unlock the doors of discovery." Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937. Additionally, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678, 129 S.Ct. 1937.
FACTUAL ALLEGATIONS
Plaintiff was employed by SCSD as the principal of the Sumter County Primary School (SCPS) from 2016 to 2018. (Doc. 1 ¶¶ 9–10.) Prior to that, Plaintiff was a principal at other SCSD schools from 2013 to 2016, and worked as an assistant principal and teacher with SCSD. (Id. ¶¶ 11–12.) On numerous occasions, SCSD recognized Plaintiff for her performance, which was always exemplary. (Id. ¶¶ 13, 17.) The schools where Plaintiff served as principal saw performance improvements and received recognitions and designations. (Id. ¶¶ 14–16.)
On a motion for judgment on the pleadings, the Court accepts all facts alleged in the Complaint as true. See Perez v. Wells Fargo N.A. , 774 F.3d 1329, 1335 (11th Cir. 2014).
Choates was appointed SCSD superintendent in October 2016. (Id. ¶ 18.) As superintendent, Choates has day-to-day decision-making authority over SCSD management, including spending and employment matters. (Id. )
I. Racial Comments and Hiring Directive
Plaintiff does not set forth facts regarding her racial background in the Complaint, but she does raise allegations related to race. Plaintiff alleges that Choates made several comments to Plaintiff concerning race while she was SCPS principal. (Id. ¶¶ 19–25.) In February 2017, Choates told Plaintiff that she was spoiled and that she did not know what it is like to struggle because she is not black. (Id. ¶ 19.) Subsequently, Choates told Plaintiff that her school was "too white" and acknowledged that he was not permitted to direct Plaintiff to hire only black teachers, but instructed her to keep these factors in mind. (Id. ¶ 20.) When an assistant principal position opened up, Choates told Plaintiff that she must hire a black man for the vacancy. (Id. ¶ 21.) When Plaintiff responded that she would not know an applicant's race from their application, Choates told her she should learn applicants' races by interviewing them. (Id. ) SCSD's director of human resources later echoed that directive. (Id. ) Plaintiff told at least two Sumter County Board of Education members about Choates' directive. (Id. ¶ 22.)
Plaintiff and her hiring committee ultimately recommended a candidate of Indian national origin who was already an SCSD employee. (Id. ¶ 23.) Choates responded to the recommendation by discouraging Plaintiff from hiring the candidate, asking if she could "even understand what they say?" (Id. ) Plaintiff ultimately hired the candidate. (Id. ) In a May 31, 2018 meeting, Choates discussed how "internationals" were unable to handle discipline because of language barriers, and how students could not understand their accents. (Id. ¶ 25.)
II. Attendance Directives
The funding SCSD receives from the state and federal governments is based, in part, on enrollment and attendance data. (Id. ¶¶ 27–29, 41.) Georgia law requires school systems to report their initial full-time equivalent (FTE) enrollment count between October 1 and November 17 each year. (Id. ¶ 46.) That count is used to determine state and federal funding for educational programs for the following fiscal year. (Id. ) On September 26, 2017, Choates directed all SCSD principals to have parents with children who had absences of at least two consecutive days to retroactively withdraw and then re-enroll their children. (Id. ¶ 30.) This change would have resulted in a lower number of student absences and would have, correspondingly, avoided a reduction in state and federal funding. (Id. ¶ 31.) The proposed change also would have affected the school's Climate Star Rating pursuant to O.C.G.A. § 20-14-33 . (Id. ) Plaintiff informed SCPS staff that the school would not comply with the directive because it was illegal. (Id. ¶ 32.) Plaintiff also told a Board of Education member about the directive on October 5, 2017. (Id. ¶ 33.) Plaintiff does not indicate whether the directive was put into effect or if any other SCSD schools complied. (See generally Doc. 1.)
On October 11, 2017, Choates directed his subordinates to change the attendance records of students with at least two consecutive absences to an "OTH" exemption code. (Id. ¶ 34.) An email to school administrators on October 12 also described this directive. (Id. ) This new directive would also have avoided a reduction in funding due to the students' absences by causing those students to appear as present on state records. (Id. ¶ 35.) In November 2017, Plaintiff learned that Choates, through a designee, had instructed each SCSD school's data clerks to change attendance records to "OTH" in accordance with the directive. (Id. ¶ 36.) Around the same time, the SCPS counselor ran an attendance report that showed students who had fewer absences than when truancy paperwork had been filed. (Id. ¶ 37.) Plaintiff checked one of the affected students' records and found that eight of the student's absences were not counted due to the "OTH" code, resulting in the record reflecting fourteen rather than twenty-two absences. (Id. ¶ 38.) With respect to this student, use of the "OTH" code resulted in state reports inaccurately reflecting that the student received special education services on the eight days the "OTH" code was used. (Id. ¶ 40.) A student having a certain number of absences may trigger a federal requirement that the school provide additional special education services. (Id. ) There is no assertion that this particular student, or any other, met that threshold or that the additional services would result in an allocation of federal funds. (See generally Doc. 1.)
Plaintiff called SCSD's student information specialist and explained that it was improper and illegal to use the "OTH" code as Choates had directed. (Id. ¶ 39.) The student information specialist told Plaintiff that Choates directed his subordinates to use the code to improve SCSD's attendance numbers on the reports it submits to the state and federal governments. (Id. ) That same day, Georgia Department of Education (DOE) Deputy Superintendent Stephanie Jordan visited SCSD. (Id. ¶ 42.) Plaintiff expressed to Jordan her concerns about Choates' attendance directives, as well as his use of Title I funds (described below). (Id. ¶ 42.)
Around November 17, 2017, Plaintiff's husband, Wiley Anderson (Mr. Anderson), contacted the DOE at Plaintiff's direction to file a complaint about Choates' attendance directives. (Id. ¶ 43.) Mr. Anderson eventually communicated with the program manager of academic auditing in the Governor's Office of Student Achievement, who provided Mr. Anderson with a complaint form. (Id. ) On November 27, SCSD's student information specialist emailed all principals, informing them that the district could no longer use the "OTH" exemption code and that the code was not approved by the DOE. (Id. ) Mr. Anderson never filed a formal complaint with the Governor's Office of Student Achievement. (Id. ) Plaintiff believes SCSD was contacted by the DOE and/or Governor's Office, leading Choates to know or suspect that Plaintiff had made a report. (Id. ¶ 45.) The Complaint does not indicate that Mr. Anderson identified himself as Plaintiff's husband or indicated to the DOE that Plaintiff was in any way connected to the complaint. (See generally Doc. 1.)
III. Special Education Programs
Under Georgia law, school funding is based, in part, on the number of students enrolled in an early intervention program (EIP). (Id. ¶ 48.) In October 2017, Choates and other SCSD representatives directed all principals to increase the number of students enrolled in EIPs, expressly to "[m]aximize [their] funding." (Id. ¶ 49.) Plaintiff alleges, but provides no specific facts to support the allegation, that not all of the students enrolled in EIPs pursuant to Choates' directive needed EIP services, and some students who were reported as receiving EIP services did not actually receive them. (Id. ¶ 50.)
A school's funding is also based partly on the number of students enrolled in programs for persons with disabilities. (Id. ¶ 52.) Defendants reported in SCSD's FTE counts that SCSD was providing special education supplemental speech services to students at an unidentified local private school, when it in fact was not. (Id. ¶ 53.) In the case of one student who was on home confinement for several months, Choates directed the special education coordinator to retroactively change records to reflect that the student had been receiving services listed in his individualized education plan (IEP) that, in fact, the student had not received. (Id. ¶ 54.) In October 2017, Plaintiff learned that PEECH, a special education services provider, had changed several SCPS students' records without Plaintiff's knowledge, including changing the services allegedly provided and altering IEP meeting minutes to reflect teachers being present when they were not. (Id. ¶ 55.) Plaintiff reported the changes to SCSD's associate superintendent. (Id. )
IV. Misuse of Funds
Funds provided to schools by the federal government under Title I are intended to supplement, not replace, funds available from state and local sources. (Id. ¶ 60.) In 2016, none of SCPS's initial Title I allocation was used for salaries or benefits. (Id. ¶ 61.) In October 2017, Plaintiff learned that $646,885 of the Fiscal Year 2018 allocation would be used on salaries and benefits, even though that expenditure had been funded through local or state funds in Fiscal Year 2017. (Id. ) As a result of this decision, the allocation available to SCPS for school-based discretionary spending went down to $808 in Fiscal Year 2018, from $183,855 in Fiscal Year 2017. (Id. ) At Plaintiff's direction, Mr. Anderson contacted the DOE's Title I, Part A program manager in December 2017 to ask and complain about SCSD's use of Title I funds. (Id. ¶ 62.) Plaintiff was a witness in the subsequent DOE investigation. (Id. ) There are no allegations regarding the results of this investigation. (See generally Doc. 1.)
In an early 2017 meeting, Choates expressed interest in increasing the funds in his "Superintendent Account." (Id. ¶ 57.) He suggested each school hold a fundraiser, with 40% of the proceeds going into his Superintendent Account. (Id. ) At the meeting, Plaintiff stated that she did not think using student-raised funds on anything other than students was ethical or legal. (Id. ) When other principals objected to Choates' fundraising plan, Choates asked each principal to write a $500 check. (Id. ¶ 58.) Plaintiff objected to this as well, since that money would also have to be raised at school by students. (Id. ) Shortly after, Choates wrote an email confirming that money going to the Superintendent Account could not be generated by students. (Id. ) On several other occasions, however, Choates requested each school contribute money toward the Superintendent Account, give gifts to Board of Education members, and provide sponsorships for a local Chamber of Commerce dinner. (Id. ¶ 59.)
Defendants also sought to save money by directing principals to not provide substitutes when special education paraprofessionals were absent, as required by state and federal requirements. (Id. ¶ 63.) Plaintiff refused to comply with this directive. (Id. )
V. Retaliation
In April 2017, Choates gave Plaintiff a poor end-of-year summative assessment under the Leader Keys Effectiveness System (LKES), the evaluation system Georgia uses for school administrators. (Id. ¶¶ 64–65.) Choates put Plaintiff on a Professional Learning Plan (PLP) on October 4, 2017. (Id. ¶ 66.) The associate superintendent told Plaintiff that Choates had "charged" him with making the PLP difficult to complete, but Plaintiff satisfactorily completed all PLP requirements. (Id. )
On March 7, 2018, after Choates placed Plaintiff on the PLP, Plaintiff informed the director of the Ethics Division of the Georgia Professional Standards Commission about Choates' requests for funds for his Superintendent Account, that Choates charged the associate superintendent with making Plaintiff's PLP difficult to complete, and that Choates had refused to acknowledge Plaintiff's completion of the PLP requirements. (Id. ¶ 68.) On March 9, Choates told Plaintiff that she would not be offered a contract for the 2018–19 school year and that he would give her poor scores on her end-of-year LKES summative assessment if she did not resign. (Id. ¶ 69.) Choates also told her that he would remove references to remediation from her state certification and give her a good evaluation at the end of May 2018 if she resigned. (Id. ¶ 72.) In light of the poor evaluation scores and remediation Choates had put on Plaintiff's state certification, a subsequent poor evaluation would have resulted in the loss of Plaintiff's certification, which was required for her job. (Id. ¶ 73.) Plaintiff, feeling she had no choice but to resign, submitted her notice of resignation to the Board of Education by Choates' deadline. (Id. ) On April 13, 2018, Plaintiff was informed that the Board accepted her resignation, effective June 30, 2018. (Id. ¶ 74.) A black woman was hired to replace Plaintiff as principal. (Id. ¶ 26.)
DISCUSSION
I. FCA Retaliation Claim
A. Rule 9
Defendants argue that Plaintiff fails to state a claim under the FCA for which relief may be granted, because Plaintiff's claim that SCSD violated 31 U.S.C. § 3729(a)(1)(A)–(C) is not pled with the particularity required by Federal Rule of Civil Procedure 9(b) . (Doc. 16-1 at 9–13.) Plaintiff does not bring a claim under § 3729(a)(1). Rather, Plaintiff's claim is brought under § 3730(h), the FCA's anti-retaliation provision. (Doc. 1 ¶¶ 80–92.) That section provides relief to an employee "discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done ... in furtherance of an action under this section or other efforts to stop 1 or more violations of [the FCA]." § 3730(h)(1). "Because her retaliation claim [does] not depend on allegations of fraud, [Plaintiff's] complaint only need[s] ‘a short and plain statement of the claim showing that [she is] entitled to relief.’ " U.S. ex rel. Sanchez v. Lymphatx, Inc. , 596 F.3d 1300, 1304 (11th Cir. 2010) (quoting Fed. R. Civ. P. 8(a) ). Accordingly, Rule 9(b) is inapplicable here and not a basis for dismissal.
B. Rule 8
Plaintiff's Complaint, however, fails to state an FCA retaliation claim under Rule 8's pleading standard. To plead a claim of retaliation under the FCA, "a plaintiff must allege that (1) she engaged in lawful acts in furtherance of an FCA action or endeavored to prevent at least one violation of the FCA; and (2) she was, as a result, subjected to some form of discrimination in the terms and conditions of her employment." Reddick v. Jones , 2015 WL 1519810, at *4 (N.D. Ga. Mar. 11, 2015) (citing § 3730(h) ; Sanchez , 596 F.3d at 1303–04 ; and Mann v. Olsten Certified Healthcare Corp. , 49 F. Supp. 2d 1307, 1316–17 (M.D. Ala. 1999) ). With respect to the first element, although a plaintiff need not "allege or prove that the defendant actually submitted a false claim," there must be "at least ‘a distinct possibility’ of litigation under the False Claims Act at the time of the employee's action." U.S. ex rel. Hunt v. Cochise Consultancy, Inc. , 887 F.3d 1081, 1089 (11th Cir.), aff'd , ––– U.S. ––––, 139 S. Ct. 1507, 203 L.Ed.2d 791 (2019) ; Sanchez , 596 F.3d at 1303 (quoting Childree v. UAP/GA AG Chem., Inc. , 92 F.3d 1140, 1146 (11th Cir. 1996) ). "If an employee's actions, as alleged in the complaint, are sufficient to support a reasonable conclusion that the employer could have feared being reported to the government for fraud or sued in a qui tam action by the employee, then the complaint states a claim for retaliatory discharge ...." Sanchez , 596 F.3d at 1304.
Here, Plaintiff's allegations do not support such a conclusion. As alleged, Plaintiff's claims of improper reporting are too attenuated to support the conclusion that her complaints could have reasonably caused SCSD to fear being reported for attempting to defraud the federal government or DOE or being sued by Plaintiff in a qui tam action. "Liability under the False Claims Act arises from the submission of a fraudulent claim to the government, not the disregard of government regulations or failure to maintain proper internal procedures." Corsello v. Lincare, Inc. , 428 F.3d 1008, 1012 (11th Cir. 2005). Plaintiff's allegations do not amount to an allegation that SCSD submitted any claim of payment to the federal government and Plaintiff has not plausibly alleged "a distinct possibility" of FCA litigation at the time of SCSD's action. Therefore, she fails to allege the "protected conduct" element of her prima facie case, and thus fails to state a claim of retaliation under the FCA.
II. Section 1983 Claims
In Count III, Plaintiff asserts § 1983 claims of race discrimination against both Choates and SCSD. (Doc. 1 ¶¶ 108–115.) "Employment discrimination claims against state actors for violation of the Equal Protection Clause are cognizable under § 1983, and ... use the same analytical framework as discrimination claims brought under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981." Hornsby-Culpepper v. Ware , 906 F.3d 1302, 1312 n.6 (11th Cir. 2018). At this stage, in order to survive a motion to dismiss, Plaintiff must plead facts "sufficient to create an inference of discrimination." Holifield v. Reno , 115 F.3d 1555, 1564 (11th Cir. 1997). Plaintiff can establish that inference by showing that "(1) [s]he is a member of a protected class; (2) [s]he was qualified for the position; (3) [s]he suffered an adverse employment action; and (4) [s]he was treated less favorably than a similarly situated individual outside [her] protected class or was replaced by a person outside of [her] protected class." Thompson v. Tyson Foods, Inc. , 939 F. Supp. 2d 1356, 1364 (M.D. Ga. 2013) (citing Maynard v. Bd. of Regents , 342 F.3d 1281, 1289 (11th Cir. 2003) ). Defendants argue that Plaintiff's § 1983 claims must be dismissed because (1) she fails to allege that she suffered an adverse employment action, (2) she fails to state a claim of municipal liability against SCSD, and (3) Choates is entitled to qualified immunity. (Doc. 16-1 at 19–26.) The Court addresses each argument in turn.
A. Adverse Employment Action
While Defendants argue that the fact Plaintiff resigned means she has not alleged an adverse employment action, "[a]n involuntary resignation that constitutes a constructive discharge is an adverse employment act." Ross v. City of Perry , 396 F. App'x 668, 670 (11th Cir. 2010) ; see also Morgan v. Ford , 6 F.3d 750, 755 (11th Cir. 1993). Plaintiff claims that she was given an ultimatum: to resign or receive poor scores on her end-of-year LKES summative assessment and face non-renewal of her contract. (Doc. 1 ¶ 69.) Because a poor evaluation would have automatically resulted in the loss of Plaintiff's required state certification, Plaintiff alleges that she "felt as though she had no choice" but to resign. (Id. ¶ 73.) Plaintiff has stated sufficient facts to allege constructive discharge. "Constructive discharge occurs ‘when the offer presented was, at rock bottom, ... an impermissible take-it-or-leave-it choice between retirement or discharge.’ " Rowell v. BellSouth Corp. , 433 F.3d 794, 805 (11th Cir. 2005) (quoting Vega v. Kodak Caribbean, Ltd. , 3 F.3d 476, 480 (1st Cir. 1993)). Plaintiff pleads such a take-it-or-leave-it choice here, and thus sufficiently alleges that element of her § 1983 claim.
B. Monell Liability
"The Supreme Court has placed strict limitations on municipal liability under § 1983." Grech v. Clayton Cty. , 335 F.3d 1326, 1329 (11th Cir. 2003). "[A] local government cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To impose municipal liability under § 1983, plaintiffs "must prove that ‘action pursuant to official municipal policy’ caused their injury." Connick v. Thompson , 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (quoting Monell , 436 U.S. at 691, 98 S.Ct. 2018 ). "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." Id. While "liability can exist when someone with final policymaking authority delegates that authority to someone else[,] ... the delegation must be such that the decision is not subject to review by the policymaking authority." Matthews v. Columbia Cty. , 294 F.3d 1294, 1297 (11th Cir. 2002). A custom requires evidence of "[a] pattern of similar constitutional violations." Craig v. Floyd Cty. , 643 F.3d 1306, 1310 (11th Cir. 2011). In sum, a plaintiff must allege facts showing: "(1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation." McDowell v. Brown , 392 F.3d 1283, 1289 (11th Cir. 2004). Once the plaintiff identifies a municipal policy or custom, he must further demonstrate that, "through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged." Bd. of Cty. Comm'rs of Bryan Cty. v. Brown , 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).
In this case, Plaintiff alleges that Choates discriminated against her on the basis of race and that SCSD is liable for Choates' discrimination. (Doc. 1 ¶¶ 111–12, 114.) Plaintiff does not specifically allege that SCSD had any policy or custom of race discrimination. Rather, Plaintiff chiefly argues that Choates is a "final decisionmaker" to whom the Board of Education customarily deferred. (Doc. 27 at 25–28.) But [a] member or employee of a governing body is a final policy maker only if his decisions have legal effect without further action by the governing body." Holloman ex rel. Holloman v. Harland , 370 F.3d 1252, 1292 (11th Cir. 2004). Under Georgia law, the Board of Education—not the superintendent—has the authority to establish SCSD policy, and Plaintiff herself alleges that she submitted her resignation to the Board, and that the Board accepted it. Ga. Const. art. VIII, § 5 ("Each school system shall be under the management and control of a board of education ...."); O.C.G.A. § 20-2-50 ("Each county of this state ... shall be confined to the control and management of a county board of education ...."). Plaintiff's allegations that "Choates has the authority to make day-to-day decisions in the management of [SCSD], including ... matters of ... employment," and that in his email discussing separation, Choates told her, "My decision is final," are insufficient to allege the existence of a policy or custom that would make SCSD liable for Choates' allegedly racially discriminatory actions. (Id. ¶¶ 18, 70.) Finally, Plaintiff argues that SCSD is liable for Choates' acts under a cat's paw theory. (Doc. 27 at 28.) "This theory provides that causation may be established if the plaintiff shows that the decisionmaker followed [a] biased recommendation without independently investigating the complaint against the employee." Stimpson v. City of Tuscaloosa , 186 F.3d 1328, 1332 (11th Cir. 1999). In such cases, the decisionmaker is used as "a mere conduit, or ‘cat's paw’ to give effect" to the discriminatory animus of the recommender. Id. Plaintiff alleges that she resigned rather than face losing her certification. There is no allegation that anyone at SCSD even knew of Choates' alleged ultimatum or was capable of weighing in on the matter at all. Nor is there any allegation that SCSD had any role in Plaintiff being placed on the PLP or in her performance evaluations. Thus, the cat's paw theory is completely inapplicable here. Plaintiff, therefore, fails to state a claim under § 1983 against SCSD.
C. Qualified Immunity
Defendants argue that Plaintiff's § 1983 claim against Choates is barred by qualified immunity. (Doc. 16-1 at 23–26.) The doctrine of qualified immunity shields government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Its purpose is to allow officials to perform their discretionary duties "without the fear of personal liability or harassing litigation." Lee v. Ferraro , 284 F.3d 1188, 1194 (11th Cir. 2002). To be entitled to qualified immunity, a "public official ‘must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’ " Sebastian v. Ortiz , 918 F.3d 1301, 1307 (11th Cir. 2019) (quoting Lee , 284 F.3d at 1194 ). Although "one might reasonably believe that violating someone's constitutional rights is never a job-related function or within the scope of a police officer's employment ... the question of whether a defendant acted within the scope of his employment is distinct from whether the defendant acted unconstitutionally." Grider v. City of Auburn , 618 F.3d 1240, 1261 (11th Cir. 2010).
Here, Choates was acting within his discretionary authority at the time of Plaintiff's alleged constructive discharge because he was "performing a legitimate job-related function"—overseeing the hiring and firing of staff—"through means that were within his power to utilize." Harland , 370 F.3d at 1265. This function, "but for the alleged constitutional infirmity, would have fallen with his legitimate job description" of overseeing employment matters at SCSD. Id. at 1266.
Because Choates was working within the scope of his discretionary authority, "the burden shifts to [Plaintiff] to establish that qualified immunity is not appropriate by showing that (1) the facts alleged make out a violation of a constitutional right and (2) the constitutional right at issue was clearly established at the time of the alleged misconduct." Gates v. Khokhar , 884 F.3d 1290, 1296 (11th Cir. 2018). As discussed above, to make out a violation of the Fourteenth Amendment for race discrimination, "the plaintiff must show that she (1) is a member of a protected class; (2) was qualified for the position; (3) suffered an adverse employment action; and (4) was replaced by someone outside the protected class or was treated less favorably than similarly situated individuals outside the protected class." Hornsby-Culpepper , 906 F.3d at 1312 n.7. Plaintiff adequately alleges that she was a member of a protected class. While Plaintiff states no direct facts related to her race, the allegations in the Complaint are sufficient to put Defendant on notice that Plaintiff is a member of some racial group and thus part of a protected class. They are also sufficient to provide notice—all that is required at this stage—that she is not African American. (See Doc. 1 ¶¶ 19, 26, 112.) Plaintiff arguably was qualified for her job, as she was hired as a principal and served in that role for two years until her discharge and as her prior performance evaluations characterized her performance as "exemplary." (Id. ¶¶ 9–17.) As discussed above, Plaintiff sufficiently alleges that she suffered an adverse employment action when she was constructively discharged. While Plaintiff does not allege that any similarly situated employees were treated differently, she does allege that a black person—someone outside of her protected class—replaced her after she was discharged. (Doc. 1 ¶ 26.) Accordingly, Plaintiff has stated a claim for race discrimination, which is unconstitutional.
As Plaintiff has alleged facts sufficient to establish a constitutional violation, she must also show that the right at issue was clearly established. Gates , 884 F.3d at 1296. The Eleventh Circuit has long held that the right to be free from intentional workplace discrimination on account of race is clearly established. Rioux v. City of Atlanta , 520 F.3d 1269, 1283 (11th Cir. 2008) ; Bogle v. McClure , 332 F.3d 1347, 1355 (11th Cir. 2003) ; Johnson v. City of Fort Lauderdale , 126 F.3d 1372, 1378 (11th Cir. 1997). Thus, Plaintiff has met her burden on qualified immunity, and qualified immunity does not bar Plaintiff's § 1983 claim against Choates at this stage of the case.
III. GWA Claim
The GWA provides:
No public employer shall retaliate against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency, unless the disclosure was made with knowledge that the disclosure was false or with reckless disregard for its truth or falsity.
O.C.G.A. § 45-1-4(d)(2) . The GWA defines "retaliation" as
the discharge, suspension, or demotion by a public employer of a public employee or any other adverse employment action taken by a public employer against a public employee in the terms or conditions of employment for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency.
Id. § 45-1-4(a)(5).
The elements of a GWA retaliation case are: "(1) the employer is a public employer; (2) the employee disclosed a violation of or noncompliance with a law, rule, or regulation to a supervisor or agency; (3) the employee experienced retaliation; and (4) there is a causal relation between the disclosure and the adverse employment decision." Lamar v. Clayton Cty. Sch. Dist. , 605 F. App'x 804, 806 (11th Cir. 2015) (citing Forrester v. Ga. Dep't of Human Servs. , 308 Ga.App. 716, 708 S.E.2d 660, 666 (2011) ). Defendants argue that Plaintiff has not sufficiently pled the third and fourth elements. (Doc. 16-1 at 27–32.)
A. Adverse Employment Action
An adverse employment action under § 45-1-4(a)(5) "should be interpreted to mean employment action analogous to or of a similar kind or class as ‘discharge, suspension, or demotion.’ " Franklin v. Pitts , 349 Ga.App. 544, 826 S.E.2d 427, 436 (2019). The Title VII standard for adverse employment action provides guidance. Id. at 437. Under that standard, "an employee must show that [s]he suffered a serious and material change in the terms, conditions, or privileges of h[er] employment." Id. (alterations in original) (quoting Walker v. Indian River Transp. Co. , 741 F. App'x 740, 749 (11th Cir. 2018) ). As discussed above, Plaintiff has sufficiently alleged constructive discharge, which constitutes an adverse employment action.
B. Causation
"The causation element in a whistleblower case ‘is construed broadly so that a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.’ " Albers v. Ga. Bd. of Regents of Univ. Sys. of Ga. , 330 Ga.App. 58, 766 S.E.2d 520, 524 (2014) (quoting Freeman v. Smith , 324 Ga.App. 426, 750 S.E.2d 739, 743 (2013) ). All that is needed is a "showing that the decision-maker was aware of the protected disclosure and that the disclosure and action were not wholly unrelated." Forrester , 708 S.E.2d at 668. Even "mere temporal proximity between an employer's knowledge of protected activity and adverse employment action" may be "sufficient evidence of causality to establish a prima facie case." Id. at 669 (quoting Clark Cty. Sch. Dist. v. Breeden , 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) ).
Plaintiff alleges multiple times that Choates was aware of her protected disclosures, including when she directly opposed his plan to have schools raise funds for his Superintendent Account and when she refused to write a check for his Superintendent Account. (Doc. 1 ¶¶ 57–58.) The "temporal proximity" between Plaintiff's alleged protected activities—which took place over the course of the 2017–18 school year—Choates' ultimatum in March 2018, and Plaintiff's constructive discharge shortly thereafter is sufficient to plead a causal relationship. In particular, Plaintiff disclosed Choates' Superintendent Account funds requests and his actions regarding her PLP to the Georgia Professional Standards Commission on March 7, 2018. (Id. ¶ 68.) On March 9—a mere two days later—Choates met with Plaintiff and told her she would not be offered a contract for the next year. (Id. ¶ 69.) This close temporal proximity between reporting and adverse action raises a strong inference of Choates' knowledge and is sufficient to plead causation at this stage. See Jones v. Bd. of Regents , 262 Ga.App. 75, 585 S.E.2d 138, 144 (2003) (finding circumstantial evidence of retaliation when defendant requested plaintiff's resignation two months after plaintiff's protected whistleblower activity).
CONCLUSION
For the reasons set forth above, Defendants' Motion for Judgment on the Pleadings (Doc. 16 ) is GRANTED in part and DENIED in part . Plaintiff's FCA and § 1983 claims against SCSD are DISMISSED with prejudice . Plaintiff's § 1983 claim against Choates and GWA claim against SCSD remain.
On August 16, 2019, the Court stayed discovery in this action pending a ruling on the Motion for Judgment on the Pleadings. (Doc. 20.) As the Court has now ruled, the stay is LIFTED . The Parties shall meet and confer and submit a proposed discovery and scheduling order by Friday, April 10, 2020 .
SO ORDERED , this 16th day of March, 2020.