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In the case of Swint v. City of Carrollton, 2021 U.S. App. LEXIS 16416 (11th Cir. 6/2/2021), a former public employee, Plaintiff Keelan Swint (Plaintiff), brought several claims under federal and state law against the Defendant City of Carrollton (Georgia) and city officials (the City) who supervised her for alleged infringement of her associational rights, retaliation and intentional infliction of emotional distress.
Facts of the Case
Plaintiff began working for the City of Carrollton in 2002 as a custodian. In 2016, she was promoted to facility supervisor of the Carrollton Cultural Arts Center. In 2017, she was transferred to the parks and recreation department to work as an athletic coordinator.
In January 2018, Plaintiff spoke with a woman who had just quit her job at the Cultural Arts Center. During the conversation, the woman said she believed that another employee at the Center had raped a volunteer who was a minor. Plaintiff reported the allegation to the director of the parks and recreation department who passed the information on to the City’s director of human resources and the city manager.
In a meeting with these administrators, Plaintiff was asked if she had spoken with anyone else about the allegation. Plaintiff said she had informed two other city employees. The administrators ordered her not to speak about it with anyone else. The city manager and the human resources director reported the allegation to the police department. A detective interviewed the alleged victim who denied having been raped. The detective closed the investigation as “unfounded due to no crime occurring” and notified the city manager and human resources director of his findings.
In March 2018, the parks and recreation director informed Plaintiff that the City planned to eliminate her position in the parks and recreation department because of low participation in the programs she oversaw. The director told her she could continue working for the City by accepting reassignment to a maintenance position that had just become vacant. In addition, she was told she would have to take a pay cut and the City would have to lay off her son, who was also an employee. Plaintiff reluctantly accepted the offer.
The City later amended the terms of Plaintiff’s continued employment. They agreed that she could keep her former salary and continue reporting to her supervisor in the parks and recreation department instead of to a new supervisor. Plaintiff, however, would have to accept several new conditions of employment, which were explained in a letter. The first condition stated: “Do not involve yourself in anything associated with the Cultural Arts Center,” especially “matters concerning pending litigation, past or current employees, volunteers, or anyone associated with the Cultural Arts Center, unless you are specifically directed to do so by your chain of command.”
Other conditions prohibited Plaintiff from discussing her salary, the job performance of other employees, and other sensitive matters with anyone other than her supervisors, the human resources department or law enforcement. Plaintiff also was prohibited from “making threatening or disrespectful remarks or threats of legal action about other employees, her chain of command, or elected officials,” because such comments were “a serious form of insubordination.” The last condition directed Plaintiff to “sign this letter acknowledging that you have received and read the letter and its conditions.” The letter warned that failure to adhere to the conditions could result in disciplinary action, including reduction in pay or termination.
On March 15, 2018, Plaintiff met with her parks and recreation department director and her supervisor. The director tried to read the letter to Plaintiff, but she periodically interrupted him to say that the allegations were false and that she was being “railroaded.” As the meeting progressed, Plaintiff became more upset and started hyperventilating. Plaintiff’s husband picked her up from work and took her to the emergency room. According to the City’s human resources director, Plaintiff resigned from her job during the meeting. Plaintiff, however, contended she did not resign and was instead fired for refusing to sign the letter.
Job Termination Lawsuit
Plaintiff sued the City and the four officials involved in the termination of her employment, which included the city manager, the human resources director, the parks and recreation director, and her supervisor. In her complaint, Plaintiff alleged that the City and the officials violated her First Amendment right to freedom of association. U.S. Const. amends. I, XIV; 42 U.S.C. § 1983. Plaintiff also alleged city administrators violated her civil rights by retaliating against her for refusing to sign the letter. U.S. Const. amends. I, XIV; 42 U.S.C. § 1983. Moreover, Plaintiff alleged the City violated the Georgia Whistleblower Act by retaliating against her for disclosing the rape allegation. Ga. Code Ann. § 45-1-4. In addition, Plaintiff brought a claim against the city officials for intentional infliction of emotional distress based on the panic attack that she suffered during the meeting.
The federal district court granted summary judgment in favor of all defendants. In so doing, the court ruled: “the city and the officials were entitled to summary judgment on the federal claims because they had not limited any of Plaintiff’s protected associational activities and because the speech for which they had allegedly retaliated against her was not a matter of public concern.”
While the court found Plaintiff’s complaint had sufficiently alleged a case of retaliation under the Georgia Whistleblower Act, in the opinion of the court, Plaintiff had “failed to introduce evidence that the proffered reasons for reassignment and dismissal were pretextual.” The court further ruled Plaintiff’s claim for intentional infliction of emotional distress failed because “reading a letter containing employment conditions is not outrageous and extreme conduct” and “no jury could find that the defendants intended to harm Plaintiff.” Plaintiff appealed.
As characterized by the federal appeals court, the initial issue on appeal was whether the city was entitled to summary judgment based on “the absence of municipal liability.”
As cited by the appeals court, municipal liability under Section 1983 of federal civil rights law “attaches only when municipal ‘official policy’ causes a constitutional violation,” which includes the following:
A plaintiff must identify either an officially promulgated municipal policy or an unofficial custom or practice of the municipality shown through the repeated acts of a final policymaker for the
On appeal, the City had argued that it was entitled to summary judgment on the federal claim because “Plaintiff did not identify an official policy or an unwritten custom or practice that caused the alleged constitutional violations.” The federal appeals court agreed.
In the opinion of the appeals court, Plaintiff had failed to identify the required policy, custom or practice to establish the City’s liability for causing a violation of her First Amendment rights:
Plaintiff did not identify an officially promulgated city policy that deprived city employees of their associational rights or that punished them for engaging in protected activity. Nor did she offer any examples of city officials repeatedly depriving employees of their First Amendment rights or repeatedly retaliating against employees for exercising those rights.
The court, however, acknowledged the City could still be held liable “under a narrow exception to the general rule wherein municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” Plaintiff had argued this exception applied to the city manager because he was a “final policymaker” who “supervised all city employees.” The federal appeals court rejected this argument.
As noted by the federal appeals court, “a municipal official does not have final policymaking authority over a particular subject matter when that official’s decisions are subject to meaningful administrative review.” In this particular case, the court found Plaintiff had failed to “develop the record with evidence that employment decisions by the city manager of Carrollton are insulated from meaningful administrative review.” Since the city manager was indeed subject to administrative review, the appeals court concluded the city manager did not have final policymaking authority. The appeals court, therefore, rejected Plaintiff’s claim that Section 1983 municipal liability could be based on a single act by the city manager.
Officials Qualified Immunity
Separate and apart from the municipal liability claim, the individual city officials had argued they too were entitled to summary judgment based on “qualified immunity.” As defined by the federal appeals court, qualified immunity would protect the city 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”:
For a right to be clearly established, a plaintiff must identify either case law with indistinguishable facts, a broad statement of principle within the Constitution, statute, or case law, or conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law.
Further, to defeat qualified immunity, the court acknowledged the clearly established law must apply with obvious clarity to the circumstances and not “a high level of generality.” In this particular instance, the court noted: “Plaintiff cites no case law with similar facts to show that the conditions in her employment letter or the requirement that she sign the letter violated her constitutional rights.” As a result, the federal appeals court held the city officials were “entitled to qualified immunity.” Moreover, the court found Plaintiff’s “arguments about general First Amendment principles” were “too abstract to make it obvious that the officials’ conduct violated her rights.”
State Whistleblower Act
As cited by the federal appeals court, the Georgia Whistleblower Act prohibited retaliation by a public employer 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.” Ga. Code Ann. § 45-1-4(d)(2).
As noted by the court, Georgia applies a “burden-shifting framework” to retaliation claims brought under the Georgia Whistleblower Act, in which “the plaintiff must first establish a prima facie case of retaliation.” (A prima facie case, i.e., “at first sight,” is one in which the plaintiff’s initial complaint includes sufficient allegations to provide the legal basis for a claim.) If the plaintiff’s prima facie case for retaliation is established, the burden shifting framework would continue:
[T]he burden would shift to the employer to articulate a legitimate, non-retaliatory reason for the adverse employment action taken. If the employer offers a legitimate, non-retaliatory reason, the burden shifts back to the plaintiff to establish that the proffered reason for its action is pretextual.
Pretext is established by a direct showing that an illicit reason more likely motivated the employer or by an indirect showing that the employer’s explanation is not credible. A proffered reason is not pretextual unless a plaintiff proves both that the proffered reason was false and that retaliation was the real reason. A plaintiff must rebut each of the employer’s proffered reasons.
After applying this burden shifting framework, the district court had found Plaintiff had “established a prima facie case of retaliation under the Act” based upon the following:
[T]he city is a public employer, Plaintiff’s reporting of the alleged rape was a disclosure of a violation of the law, her reassignment and termination were adverse employment actions, and the disclosure and adverse employment actions were close enough in time to each other to infer a causal connection.
Having found Plaintiff had presented a prima facie case of retaliation, the burden then shifted to the City to “articulate a legitimate, non-retaliatory reason for the adverse employment action taken.” The federal district court had accepted the City’s two legitimate, non-retaliatory reasons for the adverse employment actions:
Plaintiff was reassigned because her original position was eliminated due to low participation in the programs she oversaw, and she was terminated because she refused to sign the letter or to make a statement refuting the letter.
In response to the City’s reasons for the adverse employment action, the district court noted, “Plaintiff had made no attempt to show that the articulated reasons were pretextual.” Since Plaintiff had failed to demonstrate the City’s reasons were a mere pretext for the adverse employment action, the federal district court concluded the City was entitled to summary judgment. Plaintiff appealed.
On appeal, Plaintiff claimed she had “produced direct evidence of retaliation in the form of a secret recording she made of a telephone conversation” with the city manager. According to Plaintiff, in this recording, the city manager had said he was “not going up to bat for her to keep her old position” because of the “many times she had meddled in the business of the Cultural Arts Center, including when she reported the alleged rape.” Moreover, on appeal, Plaintiff had argued the “City’s proffered reasons were pretextual” and she had presented “a convincing mosaic of circumstantial evidence that would allow a jury to infer that the City had illegally retaliated against her.” The federal appeals court rejected Plaintiff’s argument.
As noted by the appeals court, “only the most blatant remarks, whose intent could mean nothing other than to retaliate, may constitute direct evidence” of retaliation. Under the circumstances of this particular case, the federal appeals court found Plaintiff had failed to provide such direct evidence of retaliation.
In the opinion of the court, the city manager’s “purported statement that he was not going up to bat” for Plaintiff was “not so blatant that the only explanation for it is an intent to retaliate.” On the contrary, during their telephone conversation, the court noted Plaintiff had admitted the city manager had said he “reassigned her because there was not enough work for her in her old position.” Moreover, the federal appeals court noted “Plaintiff did not argue in the district court that the City’s proffered reasons were pretextual.” Similarly, the appeals court found Plaintiff had not argued that “a convincing mosaic of circumstantial evidence was sufficient for a retaliation claim.”
Intentional Infliction of Emotional Distress
The federal appeals court also considered Plaintiff’s claim of intentional infliction of emotional distress against the city officials. As cited by the court, to succeed on a claim of intentional infliction of emotional distress under Georgia law, a plaintiff must prove the following:
[T]he alleged wrongful conduct is both intentional or reckless and extreme and outrageous, that there is a causal connection between the wrongful conduct and the emotional distress, and that the emotional distress is severe.
The wrongful conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Conduct is not extreme and outrageous simply because it is unkind or causes someone’s feelings to be hurt.
Moreover, as a general rule, the federal appeals court acknowledged: “an employer’s termination of an employee does not qualify as extreme and outrageous conduct under Georgia law.”
On appeal, Plaintiff claimed her demotion after she reported the rape allegation and her employment termination after she refused to sign a letter was “both intentional and outrageous” in violation of her First Amendment rights. In so doing, Plaintiff testified, during the meeting attended by her supervisor and the City’s director of human resources, she was specifically upset by the letter being read by the director of parks and recreation and the city manager, “accusing her of meddling in the affairs of the Cultural Arts Center.” As a result of “the emotional distress the officials caused her,” Plaintiff claimed “she now suffers from heart issues and anxiety, for which she takes medication.”
Under the circumstances of this case, the federal appeals court found Plaintiff had failed to demonstrate intentional infliction of emotional distress under Georgia law. In so doing, the appeals court agreed with the district court that “the officials’ conduct was neither intentional or reckless nor extreme and outrageous”:
None of the actions that Plaintiff identified, nor the requirement that she sign to acknowledge that she received a letter and understood its conditions, is conduct that goes beyond all possible bounds of decency or is atrocious and utterly intolerable in a civilized community.
In support of her claim for intentional infliction of emotional distress, Plaintiff also had alleged instances of “sexual harassment, unfair treatment compared to other employees, failure to compensate for overtime, and demotion and threatened termination for testifying against an employer.” In the opinion of the appeals court, these additional allegations of adverse employment actions were “not comparable” to city officials reading a letter with employment conditions at a meeting. Moreover, the court noted that Plaintiff had “acknowledged in her deposition that the officials did not intend to cause her to hyperventilate or to have a panic attack.” The federal appeals court, therefore, held Plaintiff “cannot prevail on her claim that they intentionally or recklessly caused her severe emotional distress.”
Having rejected Plaintiff’s claims under federal and state law, the federal appeals court affirmed the summary judgment of the federal district court in favor of Defendant City of Carrollton and the individual defendant city officials.
James C. Kozlowski, J.D., Ph.D. is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Law review articles archive (1982 to present).