                                  FOURTH DIVISION
                                   DILLARD, C. J.,
                                  RAY and SELF, 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


                                                                     January 31, 2018




In the Court of Appeals of Georgia
 A17A1430. EVERSON v. DEKALB COUNTY SCHOOL SE-055
     DISTRICT et al.

      SELF, Judge.

      Ronald Everson appeals from the trial court’s order dismissing his complaint

against the DeKalb County School District (“the School District”) and its former

superintendent, Crawford Lewis. Everson asserts that his claims are not barred by

sovereign immunity and that the allegations of his complaint were sufficient to

preclude dismissal for failure to state a claim. For the reasons explained below, we

affirm the portion of the trial court’s order dismissing the School District and the

claims against Lewis in his official capacity. We reverse the trial court’s dismissal of

Everson’s claims against Lewis in his personal capacity for wrongful termination,

punitive damages, and attorney fees.
      The record shows that Everson named the following five defendants in his

complaint: the School District; Crawford Lewis, the superintendent of the School

District; Kenneth Bradshaw, the lead law enforcement officer at Columbia High

School; Doug Sanders, the principal of Columbia High School; and Jeannette Moss,

the assistant principal of Columbia High School. Everson asserted causes of action

for false arrest and malicious prosecution, slander and libel, and wrongful

termination. He sought back pay and reinstatement, damages for emotional distress,

punitive damages, and attorney fees under OCGA § 13-6-11.

      The complaint alleges that Everson was the plant engineer of Columbia High

School with custody of all keys and full access to the school. During 2006, the high

school was undergoing renovations performed by Anthony Pope’s company, Merit

Construction. According to Everson, he was “often on the property on the weekend

to open the property to the construction workers. [He] saw on several occasions

money exchange hands between Anthony Pope and Defendant Lewis.” He alleges

that he “told Defendant Sanders about these illegal monetary exchanges and

Defendant Sanders did nothing about Plaintiff’s complaints.” The complaint does not

explicitly allege when these events transpired.



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      On May 23, 2008, Sanders, Bradshaw, and Moss “accused [Everson] of theft

by taking of some air conditioning units which were in a trailer located at Columbia

High School.” Everson claims that Sanders and Moss “falsely stated that [he] did not

have permission to be on the property on the weekend the units were stolen, knowing

they often called [him] themselves to have him come out on the weekends to open the

property for the construction workers.” Bradshaw “swor[e] out a warrant for theft by

taking based off false information or no information directly linking [Everson] to the

theft,” and Everson was subsequently indicted for burglary. On June 23, 2008, Lewis

“requested for [Everson] to come to his office and fired him” based upon the charges

against him. After the charges were dismissed, Lewis and Sanders refused to reinstate

Everson. Approximately two years later, “Lewis was indicted for, among other things,

illegally receiving money from Pope for construction contracts. Columbia High

School was one of the schools listed in the indictment.”

      After service was perfected upon the School District and Lewis,1 they moved

to dismiss the complaint. The School District asserted that Everson’s claims against

it were barred by the doctrine of sovereign immunity and that each of his individual

      1
        The record contains no indication that service was ever made upon the
remaining three individual defendants, and these defendants made no appearance in
the case below.

                                          3
theories of recovery were subject to dismissal for failure to state a claim. Lewis

adopted the School District’s motion with regard to his official acts and asserted that

he was entitled to qualified immunity for the actions asserted against him in his

individual capacity. The trial court held a hearing, granted both motions, and

dismissed Everson’s complaint with prejudice.

      1. Sovereign Immunity. “We review de novo a trial court’s grant of a motion

to dismiss on sovereign immunity grounds, bearing in mind that the party seeking to

benefit from the waiver of sovereign immunity has the burden of proof to establish

waiver.” (Citation and punctuation omitted.) Cowart v. Ga. Dept. of Human Svcs.,

340 Ga. App. 183 (796 SE2d 90) (2017). See also Ga. Dept. of Labor v. RTT Assoc.,

299 Ga. 78, 81 (1) (786 SE2d 840) (2016).

      In Georgia, sovereign immunity “protect[s] governments at all levels from

unconsented-to legal actions.” Gilbert v. Richardson, 264 Ga. 744, 746 (1) (452 SE2d

476) (1994). In 1991, an amendment to Georgia’s Constitution authorized our

General Assembly to

      waive the state’s sovereign immunity from suit by enacting a State Tort
      Claims Act, in which the General Assembly may provide by law for
      procedures for the making, handling, and disposition of actions or
      claims against the state and its departments, agencies, officers, and

                                          4
      employees, upon such terms and subject to such conditions and
      limitations as the General Assembly may provide.


Ga. Const. of 1983, Art I, Sec. II, Par. IX (a). Under this authority, the General

Assembly enacted the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. “The

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. OCGA § 50-21-22 (5).” Wellborn v. DeKalb County School

District, 227 Ga. App. 377, 379 (4) (489 SE2d 345) (1997). Consequently, Everson’s

tort claims against the School District and Lewis, in his official capacity, are barred

by the doctrine of sovereign immunity. See id.; Price v. Dept. of Transp., 257 Ga.

535, 537 (361 SE2d 146) (1987) (suits against public employees in official capacities

are in reality suits against the state; employees so sued are entitled to sovereign

immunity).

      Everson’s claims for wrongful termination and reinstatement against the School

District and Lewis, in his official capacity, are also barred by the doctrine of

sovereign immunity. While “the defense of sovereign immunity is . . . waived as to

any action ex contractu for the breach of any written contract . . . entered into by the

state or its departments and agencies,” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (c),

                                           5
Everson’s complaint fails to allege that a written employment contract existed

between himself and the School Board, and the personnel policies asserted in the

complaint fail to create a contract of employment. See Tacket v. Ga. Dept. of

Corrections, 304 Ga. App. 310, 312 (1) (696 SE2d 359) (2010), disapproved on the

other grounds, Wolfe v. Bd. of Regents, 300 Ga. 223, 232 (2) (d), n. 5 (794 SE2d 85)

(2016). Accordingly, Everson has failed to meet his burden of demonstrating a waiver

of sovereign immunity for these claims. See Tricoli v. Watts, 336 Ga. App. 837, 838-

840 (2) (783 SE2d 475) (2016); DeKalb County v. Kirkland, 329 Ga. App. 262, 265

(764 SE2d 867) (2014).

      2. Qualified Immunity of Lewis. Government officials sued in their individual

capacity are offered limited protection from suits.

      The doctrine of official immunity offers public officers and employees
      limited protection from suit in their personal capacity. Official immunity
      protects individual public agents from personal liability for discretionary
      actions taken within the scope of their official authority, and done
      without wilfulness, malice, or corruption. Under Georgia law, a public
      officer or employee may be personally liable only for ministerial acts
      negligently performed or acts performed with malice or an intent to
      injure. The rationale for this immunity is to preserve the public
      employee’s independence of action without fear of lawsuits and to
      prevent a review of his or her judgment in hindsight.

                                          6
(Citations, punctuation and footnote omitted.) Todd v. Brooks, 292 Ga. App. 329, 330

(1) (665 SE2d 11) (2008). In this case, the parties agree that Lewis’s liability turns

on whether he acted “with actual malice or with actual intent to cause injury in the

performance of [his] official function[].” Ga. Const. of 1983, Art. I, Sec. II, Par IX

(d). In his claim for wrongful termination,2 Everson claims that Lewis terminated him

because “Lewis knew [Everson] had seen the illegal activities of . . . Lewis and

Pope.” In his claim for punitive damages, Everson alleges that the “Defendants,

individually and collectively, maliciously and intentionally injured [him].”

       In his appellate brief, Lewis asserts that Everson’s complaint did “not plead

that Defendant Lewis acted willfully, wantonly, maliciously, or with intent to harm

Plaintiff such that the limited exception to qualified immunity would apply.” In

Lewis’s view, the complaint “summarily implied that [he] terminated Plaintiff for

other reasons, which [Everson] describes as his witnessing of alleged ‘illegal

activities.’”

       It is true that “actual malice [is] something more than implied malice. . . .”

Phillips v. Hanse, 281 Ga. 133, 135 (2) (637 SE2d 11) (2006).


       2
       Everson’s claims for false arrest, malicious prosecution, slander, and libel
were not asserted against Lewis.

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      [A]ctual malice requires a deliberate intent to do wrong. [The] deliberate
      intention to do wrong such as to constitute the actual malice necessary
      to overcome official immunity must be the intent to cause the harm
      suffered by the plaintiffs. [E]vidence demonstrating frustration,
      irritation, and possibly even anger is not sufficient to penetrate official
      immunity.


(Citations and punctuation omitted.) Greenway v. Northside Hosp., 328 Ga. App. 473

(763 SE2d 488) (2014).

      When considering the question of whether the trial court erred in granting

Lewis’s motion to dismiss based upon qualified immunity, we must remember that

      [a] motion to dismiss for failure to state a claim should not be granted
      unless it appears to a certainty that the plaintiff would not be entitled to
      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.


(Citations and punctuation omitted.) Agnes Scott College v. Hartley, 330 Ga. App.

575, 577 (2) (768 SE2d 767) (2015). Here, we cannot say that Everson would not be

entitled to relief “under any state of facts which could be proved in support of his

claim.” Id. Contrary to Lewis’s proposed construction of the complaint, Everson

asserts that Lewis “maliciously and intentionally” injured him, and the allegation that

                                           8
Lewis fired him “because Defendant Lewis knew [Everson] had seen the illegal

activities of Defendant Lewis and Pope” is adequate to withstand a motion to dismiss

at this preliminary stage of the litigation. (Emphasis supplied.) Accordingly,

“questions of this complaint’s evidentiary sufficiency must await summary judgment”

on the issue of whether Lewis is entitled to qualified immunity. Liberty County

School District v. Halliburton, 328 Ga. App. 422, 429 (4) (762 SE2d 138) (2014),

overruled on other grounds, Rivera v. Washington, 298 Ga. 770, 780, n. 7 (784 SE2d

775) (2016).

         3. Failure to State a Claim for Wrongful Termination. Everson claims that the

trial court erred by dismissing his wrongful termination claim against Lewis. We

agree.

         When considering this argument, it is important to examine the particular

nature of Everson’s claim. He asserts in his complaint that he “at all times had a

property interest in continued employment with [the] School District,” as well as “a

right to procedural and substantive due process because he could only be terminated

for cause which was made by reference to the personnel policies.”

         In Georgia,



                                           9
      [a] policy that public employees can be terminated only for cause does
      give the employee an interest in continued employment for purposes of
      procedural due process analysis. But that does not mean that a manual
      stating the policy and setting forth procedures for its implementation is
      a contract. For purposes of the breach of contract claim, we look only to
      Georgia law and make no distinction between public and private
      employees. And under Georgia law, personnel manuals stating that
      employees can be terminated only for cause and setting forth termination
      procedures are not contracts of employment; failure to follow the
      termination procedures contained in them is not actionable. In other
      words, if a public employee has a personnel manual stating she can be
      fired only for cause, she is entitled to procedural due process, the
      adequacy of which is governed by federal law. But if the requirements
      of due process are met, the employer’s failure to follow all the
      procedures in the manual does not give rise to an action for breach of
      contract.


(Citations omitted.) Jones v. Chatham County, 223 Ga. App. 455, 459 (5) (477 SE2d

889) (1996). Notably, “an employee with a property right in employment is protected

only by the procedural component of the Due Process Clause, not its substantive

component.” (Punctuation and footnote omitetd.) Angell v. Hart, 232 Ga. App. 222,

224 (3) (501 SE2d 594) (1998). Accordingly, the trial court erred by dismissing

Everson’s wrongful termination claim against Lewis grounded upon a violation of his

procedural due process rights. See Lathrop v. Deal, 301 Ga. 408, 434 (III) (C) (801

                                         10
SE2d 867) (2017) (noting that public officers may be sued in their individual

capacities for official acts that are alleged to be unconstitutional). However, we affirm

the trial court’s dismissal of Everson’s substantive due process claim and any breach

of contract claim asserted in the complaint.

      4. Punitive Damages and Attorney Fees. As the dismissal of Everson’s claims

for punitive damages and OCGA § 13-6-11 attorney fees was dependent upon the

dismissal of all of the underlying claims against Lewis, we also reverse the trial

court’s dismissal of these claims to the extent they are asserted against Lewis in his

individual capacity. In so holding, we note that Lewis’s only argument below with

regard to punitive damages was an adoption of the School District’s argument that it

is against public policy to award punitive damages against public entities. He made

no argument with respect to Everson’s right to recover attorney fees. Accordingly,

nothing in this opinion should be construed as a ruling on any other ground which

might preclude Everson from recovering punitive damages or OCGA § 13-6-11

attorney fees from Lewis.

      Judgment affirmed in part, reversed in part. Dillard, C. J., and Ray, J., concur.




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