                              THIRD DIVISION
                              BARNES, P. J.,
                           BOGGS and BRANCH, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              http://www.gaappeals.us/rules/


                                                                      July 16, 2014




In the Court of Appeals of Georgia
 A14A0333. LIBERTY COUNTY SCHOOL DISTRICT et al. v.
     HALLIBURTON.

      B RANCH, Judge.

      After Laverne Halliburton’s contract as a school principal in the Liberty County

School District was not renewed for the 2011-2012 academic year, Halliburton sued

the District and a number of its officers, including Superintendent Dr. Judy Burton

Scherer and seven members of the county school board (collectively, “defendants”),

for racial discrimination. Halliburton sought a writ of mandamus, other injunctive

relief, damages, and attorney fees. Defendants moved to dismiss on grounds including

that defendants were entitled to sovereign and/or qualified immunity. On appeal from

the trial court’s denial of the motion to dismiss, defendants argue that their motion

should have been granted because Halliburton had no right to a renewed contract and
because her claims are barred by sovereign and qualified immunity. We conclude that

although the District itself is exempt from suit under sovereign immunity, due to the

very early stage of this litigation, it is conceivable that Halliburton could produce facts

consistent with her claim that Scherer and/or one or more board members acted with

actual malice such that they would not be entitled to qualified immunity. We therefore

affirm in part and reverse in part.

       The Supreme Court of Georgia has recently reiterated how a trial court should

treat a motion to dismiss:

       “A motion to dismiss for failure to state a claim upon which relief may
       be granted should not be sustained unless (1) the allegations of the
       complaint disclose with certainty that the claimant would not be entitled
       to relief under any state of provable facts asserted in support thereof; and
       (2) the movant establishes that the claimant could not possibly introduce
       evidence within the framework of the complaint sufficient to warrant a
       grant of the relief sought. In deciding a motion to dismiss, all pleadings
       are to be construed most favorably to the party who filed them, and all
       doubts regarding such pleadings must be resolved in the filing party’s
       favor.”


Austin v. Clark, 294 Ga. 773, 774-775 (755 SE2d 796) (2014) (citation omitted),

quoting Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997). In other

words,

                                            2
      a motion to dismiss for failure to state a claim should not be granted
      unless it appears to a certainty that the plaintiff would be entitled to no
      relief under any state of facts which could be proved in support of his
      claim. If, within the framework of the complaint, evidence may be
      introduced which will sustain a grant of relief to the plaintiff, the
      complaint is sufficient.


Austin, 294 Ga. at 775 (citation and punctuation omitted). On appeal, we review a trial

court’s decision to grant or deny a motion to dismiss de novo. Chandler v. Opensided

MRI of Atlanta, 299 Ga. App. 415 (682 SE2d 165) (2009).

      On September 26, 2011, Halliburton filed a verified complaint in Liberty

County Superior Court alleging that during Scherer’s tenure as superintendent of the

county school district, Scherer treated Halliburton “differently from similarly situated

white employees” in that she “made a recommendation” to the Board “to non-renew”

Halliburton’s contract as principal for the 2011-2012 school year. The complaint

alleged that when the Board voted 4-3 along racial lines not to accept Scherer’s

recommendation, Scherer “illegally,” “without legal authority” and “unilaterally”

refused to renew Halliburton’s contract. According to the complaint, Scherer took

these actions in “retaliation” for Halliburton’s complaints to Scherer about the job

performance of a white assistant principal, which retaliation violated Halliburton’s



                                           3
right to freedom of speech. The complaint also alleged that Scherer had “allowed

white employees [of the District] to undermine [Halliburton’s] authority and position,”

had replaced Halliburton with a white principal, and later transferred the white

assistant principal rather than declining to renew or terminating that person’s contract;

that Scherer had discriminated against Halliburton “on the basis of her race” in

violation of her constitutional rights; and that Scherer had acted “oppressively,

maliciously, corruptly, or without authority of law” and with the intent to injure

Halliburton. Finally, the complaint alleged that as a result of defendants’ acts,

including the board members’ ratification of Scherer’s acts, Halliburton suffered

damages including lost past and future wages, mental anguish, emotional distress, and

“physical discomfort.”

      On October 26, 2011, defendants filed their verified answer, which included a

motion to dismiss the District and the individual defendants in their official capacity

under sovereign immunity and the individual defendants personally under qualified

(also known as “official”) immunity because their actions “were discretionary and

done in good faith in the performance of [their] official duties.” The answer also

alleged that “all actions taken by any [d]efendant with respect to [Halliburton’s]

allegations” were “legitimate, nondiscriminatory, and unprejudiced” and that no


                                           4
defendant had acted with “discriminatory intent.” After Halliburton requested a

hearing, defendants filed a separate motion to dismiss with a supporting brief arguing

for the application of sovereign and qualified immunity. Between December 12 and

December 16, 2011, Halliburton served nine discovery requests on the defendants,

who immediately moved to stay discovery 1 on the ground that the motion to dismiss

“raise[d] exclusively legal issues as to which no discovery is necessary.” On February

17, 2012, after a hearing which was not transcribed, the trial court stayed discovery

pending its ruling on the motion to dismiss. More than a year later, on August 30,

2013, the trial court denied the motion to dismiss without explanation and lifted the

stay on discovery. This appeal followed.

      1. Halliburton has moved to transfer this appeal to the Supreme Court of

Georgia on the ground that this Court is not authorized to decide an appeal involving

relief by writ of mandamus. See Ga. Const. of 1983, Art. VI, Sec. VI, Para. III (5)

(giving Supreme Court appellate jurisdiction over “all cases involving extraordinary



      1
       See OCGA § 9-11-26 (c) (1), (2) (“Upon motion by a party or by the person
from whom discovery is sought and for good cause shown,” a court “may make any
order which justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense,” including “[t]hat the
discovery not be had” and “[t]hat the discovery may be had only on specified terms
and conditions, including a designation of the time or place[.]”

                                           5
remedies,” which category includes mandamus); Lamar County v. E. T. Carlyle Co.,

277 Ga. 690, 692-693 (1) (594 SE2d 335) (2004) (Georgia Supreme Court had

exclusive appellate jurisdiction over plaintiff developer’s action for declaratory relief

and mandamus when the trial court had granted plaintiff mandamus relief). The only

issue on this appeal, however, is whether the trial court erred when it denied

defendants’ motion to dismiss on the grounds of sovereign and qualified immunity.

As this trial court did not grant or deny a writ of mandamus, see Mid Ga.

Environmental Mgmt. Group v. Meriwether County, 277 Ga. 670 (594 SE2d 344)

(2004), we conclude that this Court has jurisdiction to entertain this appeal, and we

therefore deny Halliburton’s motion to transfer. See City of Tybee Island v. Live Oak

Group, 324 Ga. App. 476, 477, n. 1 (751 SE2d 123) (2013) (Court of Appeals had

jurisdiction over appeal concerning only whether trial court erred in its ruling on an

inverse condemnation claim even when that claim asked for mandamus relief).

      2. Halliburton has also moved to dismiss this appeal as not among the

categories of direct appeals authorized by OCGA § 5-6-34 (a). W e disagree.

      In general, a party seeking to appeal an interlocutory ruling who fails to comply

with the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b) deprives this

Court of jurisdiction over the appeal. Bd. of Regents of the Univ. System of Ga. v.


                                           6
Canas, 295 Ga. App. 505, 506 (1) (672 SE2d 471) (2009). “A small class of decisions,

however, are excepted” from this rule “by the collateral order doctrine.” Id. In order

to obtain an appeal on a collateral order, the order “must conclusively determine the

disputed question, resolve an important issue completely separate from the merits of

the action, and be effectively unreviewable on appeal from a final judgment.” Id. at

507 (citation and punctuation omitted).

         Although this trial court’s order denying the motion to dismiss did not explain

its ruling, the unambiguous posture of this case, including the grounds of sovereign

and qualified immunity raised in the answer and repeated in the motion to dismiss,

suggests that the trial court’s rejection of the defenses of sovereign and qualified

immunity was “conclusive” such that defendants were entitled to a direct appeal under

the collateral order doctrine. Eshelman v. Key, ___ Ga. App. ___ (1) (755 SE2d 926)

(2014) (asserting jurisdiction over denial of summary judgment motion asserting

defense of qualified immunity to a suit brought by a plaintiff bitten by a police dog

that escaped its kennel). Halliburton’s motion to dismiss this appeal is denied.

         3. Defendants argue that the District and the individual defendants in their

official capacities are entitled to sovereign immunity as to Halliburton’s claims. We

agree.


                                            7
      The sovereign immunity of the state and its departments and agencies “can be

waived only by an Act of the General Assembly which specifically provides that

sovereign immunity is thereby waived and the extent of the waiver.” Wellborn v.

DeKalb County School Dist., 227 Ga. App. 377, 379 (4) (489 SE2d 345) (1997), citing

Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e); see also Ga. Dept. of Natural Resources

v. Center for a Sustainable Coast, 294 Ga. 593, 602 (2) (755 SE2d 184) (2014)

(“sovereign immunity [can] only be waived by the General Assembly”). Because the

Liberty County School District is a political subdivision of the State, Crisp County

School System v. Brown, 226 Ga. App. 800 (1) (487 SE2d 512) (1997), the District “is

vested with sovereign immunity unless such immunity is waived” by virtue of the

same constitutional provision. Wellborn, 277 Ga. App. at 379 (4) (citations omitted);

see also OCGA § 36-1-4 (“A county is not liable to suit for any cause of action unless

made so by statute”). Specifically, “[t]he Georgia Tort Claims Act provides for a

limited waiver of the state’s sovereign immunity for the torts of its officers and

employees, but it expressly excludes school districts from the waiver.” Coffee County

School Dist. v. Snipes, 216 Ga. App. 293, 294-295 (454 SE2d 149) (1995), citing

OCGA § 50-21-22 (5) (defining “State” for purposes of the Georgia Tort Claims Act

as including “any of its offices, agencies, authorities, departments commissions,


                                           8
boards, divisions and institutions,” but excluding “counties, municipalities, school

districts,” and “other units of local government”) (emphasis supplied).

      According to Halliburton herself, the gravamen of her complaint is her request

for “reinstatement” pursuant to a renewed contract as well as “back pay” and “attorney

fees.” Our Constitution waives sovereign immunity in “any action ex contractu for the

breach of any written contract.” Ga. Const. of 1983, Art. I, Sec. II, Para. IX (c). But

this constitutionally sanctioned waiver cannot apply when Halliburton is seeking a

new contract that the District refused to issue. See Bd. of Regents of Univ. System of

Ga. v. Ruff, 315 Ga. App. 452, 455 (726 SE2d 451) (2012) (no waiver of sovereign

immunity when plaintiff could not show that he entered into a written contract with

a university board of regents).

      Even if Halliburton seeks to accomplish her goal of obtaining a new contract

by means of injunctive relief, our Supreme Court has recently clarified that a request

for injunctive relief to restrain an allegedly illegal act does not provide any exception

to the fundamental rule that sovereign immunity “can only be waived by an Act of the

General Assembly which specifically provides that sovereign immunity is waived and

the extent of such waiver.” Center for a Sustainable Coast, 294 Ga. at 598 (2),

overruling IBM v. Evans, 265 Ga. 215 (453 SE2d 706) (1995) (citation and


                                           9
punctuation omitted; emphasis in original). It is also clear from Halliburton’s

complaint that she impermissibly seeks “to bind the District’s fiscal discretion going

forward” by forcing it to issue her a renewed contract. DeKalb School Dist. v. Gold,

318 Ga. App. 633, 639-640 (1) (734 SE2d 466) (2012) (trial court erred in failing to

dismiss teachers’ claim for “a declaration as to [a school district’s] budgetary

obligations”).2

      As this Court has noted, “a primary purpose of the doctrine of sovereign

immunity is the protection of the public purse.” Id. (citation and punctuation omitted).

And “[a] waiver of sovereign immunity must be established by the party seeking to

benefit from that waiver.” Ruff, 315 Ga. App. at 456 (footnote omitted). In the absence

of any showing that the legislature has waived the sovereign immunity of school



      2
         As to any possible federal constitutional claims, the complaint makes no
reference to 24 USC § 1983. To the extent Halliburton contends that she was deprived
of her constitutional rights pursuant to § 1983, she has failed to allege that any policy
or custom of the District caused the deprivation of her constitutional rights. Thus any
federal constitutional claims predicated on § 1983 should have been dismissed. See
King v. Pioneer Regional Educational Svc. Agency, 301 Ga. App. 547, 552 (1) (688
SE2d 7) (2009) (although “municipalities and other local governmental entities are
included among those persons to whom § 1983 applies,” such entities “may not be
held liable on a respondeat superior theory,” but may be held liable only when
“execution of a government’s policy or custom inflicts the injury” suffered), citing
Monell v. Dept. of Social Svcs., 436 U. S. 658, 690 (II) (98 SCt 2018, 56 LE2d 611)
(1978).

                                           10
districts in cases involving the issuance or non-issuance of teacher contracts, we

conclude that the District itself is immune from Halliburton’s suit and that the trial

court should have granted the District’s motion to dismiss on this basis. Coffee

County, 216 Ga. App. at 296 (reversing denial of summary judgment when plaintiff

had not pointed to any “legislative act specifically providing that the sovereign

immunity of [a] school district is waived and the extent of such waiver”).

      Further, because “[s]uits against public employees in their official capacities are

in reality suits against the state,” Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d

341) (2001) (punctuation and footnote omitted), such employees are also entitled to

sovereign immunity when they are sued in their official capacities. Id. The trial court

thus also erred when it denied the motion to dismiss as to Scherer and the board

members in their official capacities. Id.

      4. Defendants also argue that Scherer and the Board members are entitled at this

stage of the proceedings to qualified immunity concerning Halliburton’s claim for

unlawful discrimination against them in their individual capacities. We disagree.

      Under the Georgia Constitution, and except as provided by the Georgia Tort

Claims Act,




                                            11
      all officers and employees of the state or its departments and agencies
      may be subject to suit and may be liable for injuries and damages caused
      by the negligent performance of, or negligent failure to perform, their
      ministerial functions and may be liable for injuries and damages if they
      act with actual malice or with actual intent to cause injury in the
      performance of their official functions.


Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d). A suit against a public officer acting

in his official capacity “will be barred by official immunity unless the public officer

(1) negligently performed a ministerial duty, or (2) acted with actual malice or an

actual intent to cause injury while performing a discretionary duty.” Reece v. Turner,

284 Ga. App. 282, 285 (1) (643 SE2d 814) (2007) (citations and punctuation

omitted).3 “In other words, public officials are immune from damages that result from

their performance of discretionary functions, unless those functions were undertaken

with malice or intent to cause injury.” Id.

      Defendants correctly point out that the process of issuing a contract to a school

principal involves two steps: a “recommendation” to do so by the “executive officer”

      3
        As our Supreme Court has explained, “a ministerial act is commonly one that
is simple, absolute, and definite, arising under conditions admitted or proved to exist,
and requiring merely the execution of a specific duty. A discretionary act, however,
calls for the exercise of personal deliberation and judgment, which in turn entails
examining the facts, reaching reasoned conclusions, and acting on them in a way not
specifically directed.” Austin, 294 Ga. at 774 (citation and punctuation omitted).

                                          12
(here, superintendent Scherer), and a decision by the school board, pursuant to such

a recommendation, to issue a contract. OCGA § 20-2-211 (a) (“All teachers,

principals, other certificated professional personnel, and other personnel of a local unit

of administration shall be employed and assigned by its governing board on the

recommendation of its executive officer”); see also Gordon v. Dooly County School

Dist., Case No. 5:04CV124, 2005 WL 3560659 *3 (III) (M.D. Ga., Dec. 28, 2005)

(under OCGA § 20-2-211 (a), a board of education “is authorized to take employment

action with respect to District personnel only on the recommendation of the

Superintendent,” and has “no independent authority to hire, fire, or otherwise assign”

personnel). As the two-step process outlined in OCGA § 2-2-211 (a) suggests,

however, and as this Court has held, “the making of decisions regarding the

supervision of students and school personnel is a discretionary function requiring

personal deliberation and judgment.” Reece, 284 Ga. App. at 285 (1) (supervision of

teacher was discretionary such that school district employees were immune from suit

by a student who was molested by that teacher); see also Leake v. Murphy, 274 Ga.

App. 219, 225 (3) (617 SE2d 575 (2005) (supervision of students was discretionary

such that defendant superintendent and board members were immune from suit).




                                           13
      Halliburton’s complaint alleges that Scherer’s and/or the Board’s decision not

to renew Halliburton’s contract was undertaken with an intent to discriminate against

her on the basis of her race – or, in other words, that one or more of these individual

defendants acted with “a deliberate intention to do wrong.” Adams v. Hazelwood, 271

Ga. 414, 415 (2) (520 SE2d 896) (1999) (citation and punctuation omitted); see also,

e.g., Simpson v. State, 218 Ga. 337, 338 (127 SE2d 907) (1962) (the equal protection

clause of the Georgia Constitution “demands uniformity and impartiality and hence

forbids discrimination”). Even taking account of the complaint’s allegation that the

individual defendants acted “maliciously,” however, any decision by Scherer and/or

any Board member not to renew Halliburton’s contract was a discretionary act for

which Halliburton can recover only if she proves that one of these actors made that

decision with “‘actual malice or an actual intent to cause injury.’” Reece, 284 Ga.

App. at 440 (2), quoting Harper v. Patterson, 270 Ga. App. 437, 440 (2) (606 SE2d

887) (2004).

      No discovery has been completed in this case, and “it cannot be said that the

allegations of the complaint disclose with certainty that [Halliburton] would not be

entitled to relief under any state of provable facts in support” of her complaint, which

alleges that the individual defendants acted with actual malice when they decided not


                                          14
to renew her contract based on her race. Austin, 294 Ga. at 775 (citation omitted;

emphasis in original). As a result, questions of this complaint’s evidentiary sufficiency

must await summary judgment. The trial court therefore did not err when it denied the

individual defendants’ motion to dismiss Halliburton’s suit against them in their

individual capacities. Id.; compare Chisolm v. Tippens, 289 Ga. App. 757, 760-762

(658 SE2d 147) (2008) (trial court did not err in granting defendant school district and

officials’ motion to dismiss when father’s pro se claims including harassment, cruelty,

and discrimination arising from officials’ refusal to set up conferences, to include

father in parent-teacher association, or to place daughter in a specific class failed to

allege “malicious, wilful, or wanton conduct necessary to overcome defendants’ claim

of immunity”).

      5. Defendants assert that the trial court erred when it failed to dismiss

Halliburton’s prayer for mandamus relief compelling “the defendants,” without

distinguishing between the District and the individual defendants, to provide

Halliburton with a hearing and to issue a contract to her. We agree.

      OCGA § 9-6-20 provides in relevant part:

      All official duties should be faithfully performed, and whenever, from
      any cause, a defect of legal justice would ensue from a failure to perform
      or from improper performance, the writ of mandamus may issue to

                                           15
      compel a due performance if there is no other specific legal remedy for
      the legal rights[.]


As we have suggested in Division 1, we would transfer this case to our Supreme Court

if Halliburton’s complaint were “capable of being construed” so as to implicate a right

to mandamus relief. City of Dalton v. Smith, 158 Ga. App. 356, 359 (280 SE2d 138)

(1981). Even in the framework set out by Halliburton’s complaint, however, no law

has been cited by Halliburton, and we have found none, suggesting that Halliburton

had a right to a hearing on her non-renewal or that the individual defendants’

decisions not to renew Halliburton’s contract and/or to do so without a hearing could

be anything but discretionary ones. See Dalton City Bd. of Ed. v. Smith, 256 Ga. 394,

395 (1) (349 SE2d 458) (1986) (when petitioners for writ of mandamus had not

established “any right to a school board hearing” on the subject of the non-renewal of

a teacher’s contract, mandamus relief was not appropriate). Being a remedy

“‘designed to compel the doing of ministerial acts,’” mandamus is “‘not an

appropriate remedy to compel the exercise of official discretion.’” Lowe v. State, 267

Ga. 754, 756 (2) (482 SE2d 344) (1997), quoting Speedway Grading Corp. v. Barrow

County Bd. of Commrs., 258 Ga. 693, 695 (1) (373 SE2d 205) (1988).




                                          16
      With the caveat that no mandamus remedy is available to Halliburton, we affirm

the trial court’s denial of the motion to dismiss as to Scherer and the school board

members in their individual capacities and remand for further proceedings consistent

with this opinion.

      Judgment affirmed in part and reversed in part, and case remanded with

direction. Barnes, P. J., and Boggs, J., concur.




                                         17
