Case 2:19-cv-00251-MHC Document 155-2 Filed 07/08/22 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION

DR. ROBERT H. WAINBERG, )

)
Plaintiff, )
) CIVIL ACTION FILE
vs. ) NO. 2:19-cv-00251-MHC
)
PIEDMONT UNIVERSITY, )
)
Defendant. )
DEFENDANT’S MEMORANDUM OF LAW
IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

COMES NOW Defendant Piedmont University (“Piedmont” and/or “the

“University”), and hereby submits this memorandum of law in support of its

Motion for Summary Judgment.

I. INTRODUCTION

Stripping aside the rhetoric in Plaintiff’s 60 page, 193 paragraph Fifth

Amended Complaint (the “Complaint”), Plaintiff’s claims all boil down to the

termination of his employment at Piedmont as a biology professor due

inappropriate sexual comments he made during his class lectures. Plaintiff not only

admits that he made the comments, but embraced them as part of his teaching style

– that he described as “Kibbitzing” with his students. Despite the salacious, and

mostly irrelevant, allegations in the Fifth Amended Complaint, the undisputed

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material facts in the record establish that Piedmont complied with the terms of

Plaintiff’s employment when it terminated Plaintiff. Dr. James Mellichamp,

Piedmont’s President, terminated Plaintiff because he found that Plaintiff’s

conduct was “seriously prejudicial to the [University] and warrant[ed] [Plaintiff’s]

immediate termination” as expressly permitted by Piedmont’s policies. Piedmont

also provided Plaintiff with a hearing before a special committee of its Board of

Trustees (the “Board”) as required by its policies. Following this hearing, the

special committee unanimously upheld the termination decision based on

Plaintiff’s admission that he made the comments at issue. Piedmont is entitled to

summary judgment on his breach of contract claims.

Plaintiff’s remaining claims likewise lack all merit because Plaintiff cannot

establish the elements of claims for: (1) negligent hiring and retention, as there is

no evidence that Dr. Mellichamp had a propensity to violate University policies or

breach agreements with tenured faculty members; (2) defamation, as Piedmont did

not publish any false statement regarding Plaintiff; (3) intentional infliction of

emotional distress (“IIED”), as Plaintiff cannot establish that Piedmont subjected

him to egregious conduct or that he has suffered severe emotional distress; or (4)

violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681

(“Title IX”), as Title IX does not provide a private right of action to an individual

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who has been accused of violating Title IX, and Title IX is preempted by Title VII

in this matter.

II. STATEMENT OF FACTS1

A. Background Regarding Piedmont University and its Policies

Formerly known as Piedmont College, Piedmont is a small non-profit,

private liberal arts university located in North Georgia. (Declaration of Martha

Cantrell (“Cantrell Dec.”), ¶ 2). In July 2012, the Board of Trustees (the “Board”)

appointed Dr. Mellichamp as President. (Deposition of Martha Cantrell (“Cantrell

Depo.”), Vol. 1, p. 19:16-18). The Board consistently reviews and evaluates Dr.

Mellichamp’s performance as President, and even hired an independent consultant

to perform a comprehensive independent assessment of Dr. Mellichamp in 2017.

(Cantrell Depo., Vol. 1, pp. 7-8, 276:5-6, 14-15; Errata line 13; Deposition of

Brian Rickman (“Rickman Depo.”), pp. 109:21-110:24). The record is clear:

before this lawsuit, the Board had never received any information indicating that

Dr. Mellichamp was not familiar with Piedmont’s Title IX policies or that he had

failed to comply with such policies. (Cantrell Dec., ¶¶ 10-11, 17-19, Rickman

Depo., pp. 120:8-21, 122:7-20).

1A more detailed statement of facts is contained within Defendant’s Statement of

Material Facts as to Which No Genuine Issue Exists.

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Piedmont’s policy on tenure is set forth in Section 4 of its Policies and

Procedures Manual (the “Manual”), which explains that “the award of tenure

grants to a faculty member the right to expect an offer of full-time employment

each year.” (Deposition of Plaintiff Dr. Robert Wainberg, Vol. 1 (“Plaintiff

Depo.”), Exh. 4., p. 68). However, Section 4.16 permits the University to terminate

a tenured faculty member at any time during the academic year if the University

finds that he/she has engaged in conduct that is “seriously prejudicial to the

[University].” Section 4.16(B) requires the President to notify the faculty member

of the specific conduct that led to the termination decision. (Plaintiff Depo., Exh. 4,

pp. 71-72). Section 4.16(C) permits a tenured faculty member to request a hearing

on a termination decision by submitting a request to the President within 10 days

of the termination notice. The President must deliver such a hearing request to the

Chair of the Board, who appoints “a special committee of the Board to hear and

decide the grievance in a fair, impartial and timely manner.” (Plaintiff Depo., Exh.

4, p. 72). Pursuant to Section 4.16(C), “[t]he decision of the special committee of

the Board is final.” (Plaintiff Depo., Exh. 4, p. 72).

Piedmont prohibits sexual harassment by its employees and students, and

Section 3.16(A)(3) of the Manual expressly states that verbal or physical conduct

of a sexual nature constitutes sexual harassment when it unreasonably interferes

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with a student’s academic performance or creates an intimidating or offensive

educational environment. (Plaintiff Depo., Exh. 4, pp. 23-24).

B. Plaintiff’s Employment with the University

In September 1988, Piedmont hired Plaintiff as an Assistant Professor of

Biology. (Plaintiff Depo., p. 51:6-8) In 1993, Plaintiff was granted tenure.

(Plaintiff Depo., p. 56:7-9). On May 1, 2017, Piedmont offered Plaintiff

employment as a tenured Professor of Biology for the academic year beginning

August 1, 2017 through May 31, 2018, which he accepted. (Plaintiff Depo., Exh.

3). The employment offer expressly directed Plaintiff to “refer to the Manual for

information regarding Plaintiff’s employment benefits and general faculty

responsibilities.” (Plaintiff Depo., Exh. 3).

C. The Title IX Complaint Regarding Plaintiff

On April 15, 2018, Dean Steven Nimmo received an email from Jessica

Smith, a student at Piedmont, reporting that Plaintiff had created an “extremely

uncomfortable” environment in his class by repeatedly making sexual comments

(hereinafter referred to as the “Title IX Complaint”). (Deposition of Steven Nimmo

(“Nimmo Depo.”), pp. 155:23-156:1, Exh. 7).

The following day, Dean Nimmo and Perry Rettig, the University’s Vice

President for Enrollment, met with Plaintiff to discuss the allegations. (Nimmo

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Depo., pp. 156:2-157:23, Exh. 5). During that conversation, Plaintiff admitted that

he referenced male students with whom he felt he had a close relationship in

scenarios that illustrated sexual activities. (Nimmo Depo., pp. 185:21-24, 182:17-

183:18, Exh. 5). That same day, Ann Sutton, the University’s Title IX Coordinator,

appointed Coach Jim Peeples and Rose Marie Allison, the University’s Director of

Human Resources (collectively, the “Investigators”) to investigate the allegations.

(Allison Depo., pp. 57:17-58:10, 63:18-23).

On April 23 and 24, 2018, the Investigators interviewed five students

regarding Plaintiff’s classes, including Smith, Nicholas Reed Alexander, and three

other students in the same class. (Allison Depo, p. 65:5-13). All five students

confirmed to the Investigators that Plaintiff frequently made sexual comments

during his lectures. These students gave specific examples, such as comments

Plaintiff made about purchasing “ribbed condoms,” and stated that Plaintiff often

referred to specific male students in his sexual comments. (Alison Depo., Exh. 19).

During Alexander’s meeting with the Investigators, he played a recording of

one of Plaintiff’s lecturers. (Deposition of Reed Alexander (“Alexander Depo.”),

pp. 150:2-165:25, Exh. 26). The audio recording also confirmed that Plaintiff had

referred to two male students in a sexual scenario, as reported by Smith in the Title

IX Complaint. (Id.) Alexander also provided the Investigators with a copy of a

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course evaluation he had submitted to Piedmont in which he stated that Plaintiff

made “sexually perverse comments” in “nearly every lecture” and that those

comments were often directed toward Alexander and made him uncomfortable.

(Alexander Depo., pp. 128:11-131:10, 170:4-173:9, 173:15-17, Exhs. 21, 27).

On May 9, 2018, the Investigators met with Plaintiff to discuss the Title IX

Complaint. (Allison Depo., pp. 202:18-203:20, Exhs. 30, 31). Plaintiff admitted

that he made comments about sex, but he stated that he “use[s] those type things

for fun.” (A1lison Depo., pp. 204:11-206:7, Exh. 31). More importantly, Plaintiff

verified that he made the statements contained on Alexander’s recording.

(Allison Depo., p. 228:8-12, Exh. 31).

D. Dr. Mellichamp’s Decision to End Plaintiff’s Employment

Once Dr. Mellichamp learned that Plaintiff admitted to making the

statements on the recording, he decided to terminate Plaintiff. (Allison Depo., Exh.

36; Plaintiff Depo., Exh. 14). Dr. Mellichamp determined that Plaintiff had

engaged in conduct that was “seriously prejudicial to the University”, and as a

result, it was necessary for the University to terminate his employment pursuant to

Section 4.16 of the Manual. (Plaintiff Depo., Exh. 14). On May 11, 2018, Dr.

Mellichamp provided Plaintiff a written termination notice, which identified the

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grounds for his termination and advised him of his right to a hearing pursuant to

Section 4 of the Manual. (Plaintiff Depo., pp. 186:5-193:5, Exh. 14).

E. The Hearing on the Termination Decision

On May 18, 2018, Plaintiff requested a post-termination hearing.

(Declaration of Patrick McKee (“McKee Dec.”), Exh. A). Pursuant to the Manual,

the Chairman of the Board appointed three Board members to the special

committee to hear Plaintiff’s grievance regarding the termination of his

employment (the “Special Committee”). (Deposition of Gus Arrendale (“Arrendale

Depo.”), pp.228:22-230:6). Counsel for Piedmont sent correspondence to Mr.

Henry outlining the procedures applicable to the hearing, and neither Henry nor

Plaintiff objected to the procedures for the conduct of the hearing. (McKee

Dec., Exhs. B, C).

On May 25, 2018, the Special Committee conducted the hearing on the

termination decision (the “Hearing”). (Plaintiff Depo., p. 195:18-20; Cantrell

Depo., Vol. 1, p. 201:4-7). At the Hearing, Dr. Rettig presented the University’s

position. (Rettig Depo, p. 166:10-18; Plaintiff Depo., pp. 196:3-197:24, Exh. 15).

Plaintiff personally addressed the Special Committee, admitting that he made

sexual comments during his lectures, but denying that he had done anything

wrong. (Plaintiff Depo., pp. 203:22-204:19). The Special Committee unanimously

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voted to uphold the termination decision, based on Plaintiff’s admission that he

made sexual comments during his lectures and the summary of the recording made

of Plaintiff’s comments.2 (Cantrell Depo., Vol. 1, pp. 301:13-302:6; Deposition of

Sandra Borrow, Vol. 1, pp. 191:15-17, Vol. 2, 14:20-21; Deposition of Dock Sisk,

Vol. 1, pp. 173:8-21; Arrendale Depo., pp. 227:21-228:21, Exh. 3).

III. ARGUMENT AND CITATION OF AUTHORITY3

A. Judicial Deference Should be Afforded to Piedmont’s Personnel

Decisions

Plaintiff asks this Court to substitute its judgment for that of Piedmont and

the Special Committee. However, courts across the country have long recognized

the principle of deference generally accorded institutions of higher education,

where academic administrators are presumed to have exercised professional

judgment under procedures established by agreement. See, e.g. Odem v. Pace

Academy, 235 Ga. App. 648, 510 S.E.2d 326 (1998) (ruling private school had

2 Plaintiff did not file a charge of discrimination with the Equal Employment
Opportunity Commission (the “EEOC”) alleging discriminatory treatment under
Title VII of the Civil Rights Act of 1964 (“Title VII”) by the University. (Plaintiff
Depo., Exh. 9, p. 34, No. 18).
3 Because Piedmont is a charitable organization, it is entitled to charitable
immunity with respect to Plaintiff’s claims, as the facts in the record establish that
Piedmont exercised care in selecting and retaining its employees. See Shamblin v.
Corp. of Presiding Bishop of the Church of Jesus Christ of Latter Day Saints, 352
Ga. App. 870, 873–74, 836 S.E.2d 171, 175 (2019)(Charitable institution’s assets
should not be depleted by subjection to liability for negligence.).

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contractual authority to terminate teacher for insubordination and unsatisfactory

professional performance under terms of employment contract based on complaints

from parents and students); Iz v. University of Baltimore, 123 Md. App. 135, 178,

716 A.2d 1107, 1128 (1997), cert. denied, 351 Md. 663 (1998) (in tenure case, “it

is not the function of the courts to second-guess judgment calls made by those

[University officials] vested with the ultimate authority and

responsibility...”); Murphy v. Duquesne University of the Holy Ghost, 565 Pa. 571,

596, 777 A.2d 418, 433 (2001) (in tenure removal case, “[a]ll of these decisions

involved subjective judgments of a teacher's professional and personal qualities,

and his potential for either advancing or impeding the University's

mission”); Yackshaw v. John Carroll Univ. Ed. of Trustees, 89 Ohio App. 3d 237,

242, 624 N.E. 2d 225, 229 (1993) (professor terminated pursuant to faculty

handbook procedures not entitled to de novo judicial review); Ferrer v. Trustees of

the Univ. of Pennsylvania, 573 Pa. 310, 340, 825 A. 2d 591, 609 (2002) (“[a

professor] is not free to demand that a jury re-consider and re-decide the merits of

his termination”); Getler v. Goodgold, 487 N.Y.S.2d 565, 568 (N.Y. App.

1985) (“[S]ince academic and administrative decisions of educational institutions

involve the exercise of subjective professional judgment, public policy compels a

restraint which removes such determinations from judicial scrutiny”).

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Sound policy reasons support the doctrine that a court should not substitute

its judgment on the merits of personnel decisions for that of institutional decision-

makers to whom those decisions are entrusted under institutional processes.

B. Plaintiff’s Breach of Contract Claim Fails as a Matter of Law

Under Georgia law, the elements of a breach of contract claim are (i) a

valid contract; (ii) material breach of its terms; and (iii) damages arising from the

material breach. As a tenured professor at a private university, the terms of

Plaintiff’s employment were governed by two things: (1) his actual employment

contract; and (2) the Manual, portions of which the employment agreement

expressly incorporates into the terms of Plaintiff’s employment. Thus, the only due

process rights Plaintiff had at the time of his termination would have to be

contained in his contract the incorporated portions of the Manual, and would not be

constitutional or statutory rights. See Madon v. Long Island Univ. C. W. Post

Center, 518 F. Supp. 246 (E.D.N.Y. 1981).

Contrary to Plaintiff’s assertion, the University’s Title IX and “Academic

Freedom” policies are not incorporated into Plaintiff’s employment agreement and,

therefore, any alleged breach of such policies is irrelevant to Plaintiff’s claims in

this matter. The operative terms of Plaintiff’s 2017-2018 contract expressly refer to

the portions of the Manual regarding employment benefits and general faculty

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responsibilities, and this is the only provision in the contract that refers to the

Manual. By its terms, the employment agreement expressly does not incorporate

all portions of the Manual as a part of the contract.

In an analogous context, the Georgia Court of Appeals found similar

language in a faculty contract not to express the intent of the parties to make the

policies and procedures of the institution a part of the contract. In Wilson v. Clark

Atlanta Univ., Inc., 339 Ga. App. 814 (2016), the Georgia Court of Appeals

observed that “[a]s a matter of contract law, incorporation by reference is generally

effective to accomplish its intended purpose where the provision to which

reference is made has a reasonably clear and ascertainable meaning.” Id. at 826

(citation omitted). The Wilson Court reasoned:

[T]he following language in the one-page contracts does not make it

reasonably clear that all provisions of the faculty handbook are
incorporated by reference into the contract, thereby creating mutual
obligations on the part both of the university and the professors:
“As a member of the faculty, you are subject to and shall abide by the
provisions of The Clark Atlanta University Faculty Handbook and any
approved revisions thereof, departmental, school and University
policies, and the By-Laws of the Board of Trustees.” Id.

“Instead,” the Court went on, “the ‘ascertainable meaning’ is that only the faculty

were contractually obligated to comply with the entirety of the handbook,

particularly in light of the handbook’s express provision that it should not be

construed as a legally binding contract.” Id. Here, the University has a similar

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provision in its Manual. Accordingly, there is no wholesale incorporation of the

Manual in Plaintiff’s employment agreement.

Moreover, the procedures in the Manual are not separately enforceable as a

contract. As the Georgia Court of Appeals held in Jones v. Chatham County, 223

Ga. App. 455, 459 (1996), “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. See Burgess v. Decatur Fed. Sav.

& Loan Assn., 178 Ga. App. 787, 345 S.E.2d 45 (1986); Anderberg v. Ga. Elec.

Membership Corp., 175 Ga. App. 14, 15(1), 332 S.E.2d 326 (1985).”

On the other hand, it is well-established that Georgia law recognizes

academic contracts impliedly incorporate the specific provisions concerning tenure

contained in a personnel manual as “additional compensation.” Moffie v.

Oglethorpe University, 186 Ga. App. 328, 329 (1988). The Court in Moffie wrote:

Considering the obvious economic value of tenure, we view the

consideration of tenure track academicians for that status as a form of
compensation (albeit intangible). “It is the accepted law of this state
that an additional compensation plan offered by an employer and
impliedly accepted by an employee, by remaining in employment,
constitutes a contract between them . . .” Fletcher v. Amax, Inc., 160
Ga. App. 692, 695 (288 SE2d 49). Thus, we conclude that those
portions of the Faculty Handbook dealing with consideration for
appointment with tenure and of which plaintiff was aware, form a part

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of plaintiff’s contract of employment. Shannon v. Huntley’s Jiffy

Stores, 174 Ga. App. 125, 126 (329 SE2d 208).

Accordingly, Manual’s policy concerning tenure is a part of Plaintiff’s contract.

Section 4.16 of the Manual permits Piedmont to terminate a tenured or non-

tenured faculty member at any time during the academic year if the University

finds that the faculty member has engaged in conduct that is “seriously prejudicial

to the [University].” The undisputed facts establish that Piedmont complied with

this policy when it terminated Plaintiff’s employment.

Plaintiff admits that he made sexual comments during his lectures. Indeed,

there is even a recording confirming that he made such comments. Dr. Mellichamp

identified a valid basis for terminating Plaintiff’s employment that was permissible

under the Manual, and notified Plaintiff of this basis. Further, Piedmont provided

Plaintiff with a hearing on this decision as required by the policy. The Special

Committee voted unanimously to uphold Plaintiff’s termination and, pursuant to

the policy, this decision was final. Plaintiff has failed to establish any breach by

Piedmont and, accordingly, the University is entitled to summary judgment in its

favor on Plaintiff’s breach of contract claim.4

4 Because Plaintiff cannot demonstrate that the University breached its agreement
with Plaintiff, his claim for breach of the covenant of good faith and fair dealing
likewise fails as a matter of law. Georgia law does not recognize such a claim as an
independent, stand-alone cause of action. See Stuart Enterprises Int'l, Inc. v.

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C. Plaintiff Has Failed to Establish a Claim of Negligent Hiring and

Retention Against the University

Under Georgia law, “a defendant employer has a duty to exercise ordinary

care not to hire or retain an employee the employer knew or should have known

posed a risk of harm to others where it is reasonably foreseeable from the

employee’s tendencies or propensities that the employee could cause the type of

harm sustained by the plaintiff. ‘The employer is subject to liability only for such

harm as is within the risk.’” Munroe v. Universal Health Svcs. Inc., 277 Ga. 861,

863, 596 S.E.2d 604 (2004). “[A]bsent a causal connection between the

employee’s particular incompetency for the job and the injury sustained by the

plaintiff, the defendant employer is not liable to the plaintiff for hiring an

employee with that particular incompetency.” Id. at 862.

Plaintiff alleges that Piedmont acted negligently in appointing Dr.

Mellichamp as President and allowing him to remain in that position because the

University knew that Dr. Mellichamp had a “serial history” of failing to comply

Peykan, Inc., 252 Ga. App. 231, 555 S.E.2d 881 (2001); Morrell v. Wellstar Health
Sys., 280 Ga. App. 1, 633 S.E.2d 68 (2006); Harrick v. Bd. of Regents of Univ. Sys.
of Georgia, No. 1:04-CV-0541-RWS, 2005 WL 8154394, at *12 (N.D. Ga. Feb.
25, 2005) (“[T]here can be no breach of an implied covenant of good faith where a
party to a contract does what that contract expressly allows it to do.”).

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with the University’s Title IX policies and procedures. Pursuant to long-standing

Georgia law, Plaintiff cannot hold Piedmont liable under a theory of negligent

hiring and retention because Plaintiff cannot establish that he was harmed by any

alleged violation of the University’s Title IX policies and procedures. The harm

alleged by Plaintiff – the loss of his employment – did not result from any alleged

violation of the University’s Title IX policies; rather, Piedmont terminated

Plaintiff’s employment pursuant to Section 4.16 of the Manual because it

determined that Plaintiff had engaged in conduct that was seriously prejudicial to

the University. Therefore, even if Plaintiff could show that Piedmont had

knowledge that Dr. Mellichamp had violated the University’s Title IX policies and

procedures – which he cannot – such knowledge would not be sufficient to

establish that an act, such as an alleged breach of the terms of Plaintiff’s

employment, is foreseeable. See Edwards v. Robinson-Humphrey Co.,164 Ga.

App. 876, 298 S.E.2d 600 (1982) (holding that, while an employer should have

been aware of employee’s propensity for dishonesty, it was not the employer’s

retention of a dishonest person which underlies the plaintiff’s claim).

Moreover, in order to establish a prima facie case of negligent hiring and

retention against Piedmont, Plaintiff must demonstrate that the University was

aware or should have been aware that Dr. Mellichamp had a “propensity” to

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violate Title IX policies and procedures. Ga. Messenger Serv. v. Bradley, 302 Ga.

App. 247, 250, 690 S.E.2d 888 (2010). Where an employee “has absolutely no

background of prior criminal or dangerous propensities and, during his

employment for a substantial number of years, he has had a good work record

without a single complaint from customers, his employer may not be found

negligent in hiring and retaining such employee...." Southern Bell Telephone &

Telegraph Co. v. Sharara, 167 Ga. App. 665, 666-67, 307 S.E.2d 129 (1983).

Plaintiff has failed to identify any evidence establishing that Piedmont had

received information indicating that Dr. Mellichamp had a propensity to violate the

University’s Title IX policies at the time he decided to end Plaintiff’s employment.

Therefore, Plaintiff cannot establish a valid negligent hiring and retention claim.

D. Plaintiff’s Defamation Claim Fails as a Matter of Law

Piedmont University is the only Defendant in this lawsuit. Plaintiff’s claim

for defamation arises out of statements made by President Mellichamp. For

example, Plaintiff argues that Piedmont, “through their President James

Mellichamp,” made false statements that Plaintiff had violated Title IX and that

“all protocol had been followed”. (Complaint, ¶¶ 144-145). Plaintiff also contends

that “President Mellichamp represented in writing that Dr. Wainberg had written a

letter concerning Piedmont College’s wrongs and claimed that Dr. Wainberg had

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admitted to writing it.” (Id., ¶ 146). President Mellichamp also sent a personal

email to a retired Piedmont faculty member that mentioned the termination of

Plaintiff. (See Deposition of James Mellichamp, Exh. 69).

These claims fail as a matter of law. The elements of a cause of action for

defamation in Georgia are: “(1) a false and defamatory statement concerning the

plaintiff; (2) an unprivileged communication to a third party; (3) fault by the

defendant amounting at least to negligence; and (4) special harm or the

actionability of the statement irrespective of special harm.” Shannon v. Office Max

North America, Inc., 291 Ga. App. 834, 837 (2008); see also O.C.G.A. § 51-5-1

and O.C.G.A. § 51-5-4.

First, Piedmont cannot be held liable for the alleged slanderous statements

spoken by President Mellichamp. “[A]s regards to slander, a corporation is not

liable for the slanderous utterances of an agent acting within the scope of his

employment, unless it affirmatively appears that the agent was expressly directed

or authorized to slander the plaintiff.” Garren v. Southland Corp., 237 Ga. 484

(1976) citations omitted.

Piedmont also cannot be held liable for the alleged written libelous

statements for a couple of reasons. First, because defamatory statements must be

false to be actionable, “[t]ruth is a complete defense to alleged libel or

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slander.” Cottrell, 299 Ga. at 523, 788 S.E.2d at 781 (citing O.C.G.A. § 51-5-6).

Plaintiff cannot establish that the alleged statements were false, as Plaintiff

admittedly made unnecessary comments of a sexual nature during his lectures and

students reported to the University that these comments made them uncomfortable.

Such conduct constitutes a violation of Title IX, so any statement that Plaintiff had

violated Title IX is true.

To the extent Plaintiff alleges that the statement that he had violated Title IX

is false because Piedmont did not complete the Title IX investigatory process after

Plaintiff’s termination, such statements still could not be considered defamatory as

Dr. Mellichamp would have been stating his opinion that the conduct Plaintiff

admittedly engaged in violated Title IX. See Gast v. Brittain, 277 Ga. 340, 589

S.E.2d 63 (2003) (holding that an assertion that cannot be proven false cannot be

held libelous because “a writer cannot be sued for simply expressing his opinion”).

With respect to the allegations (1) concerning a private email sent to a

former colleague and friend; and (2) that Dr. Mellichamp stated that Plaintiff had

“written a letter concerning Piedmont College’s wrongs and claimed that Dr.

Wainberg had admitted to writing it,” Piedmont cannot be held liable for such

statements, as Plaintiff cannot establish that Dr. Mellichamp was acting in the

scope of his authority as President or that Piedmont had expressly authorized him

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to make defamatory statements about Plaintiff. Therefore, there is no vicarious

liability for these statements made by Dr. Mellichamp.

Moreover, even if Plaintiff could establish that the University (and not

President Mellichamp) published false statements about him, “[s]pecial damage is

essential to support an action” for slander. See O.C.G.A. § 51-5-4(b). Special

damages must be pled with particularity and failure to do so limits Plaintiff to a

claim of defamation per se. See O.C.G.A. § 9-11-9(g); Bellemead v. Stoker, 280

Ga. 635, 631 S.E.2d 693 (2006). It is undisputed that the defamatory statements

alleged by Plaintiff do not constitute libel per se, as libel per se includes “falsely

stat[ing] ... that a person has a criminal case pending against him.” Echols v.

Lawton, 913 F.3d 1313, 1321 (11th Cir. 2019) (quoting Harcrow v. Struhar, 236

Ga. App. 403, 404, 511 S.E.2d 545 (1999)); Matthews v. Mills, 357 Ga. App. 214,

216, 850 S.E.2d 424, 428 (2020) (“To rise to the level of slander per se, the words

at issue must charge the commission of a specific crime punishable by law.”).

Georgia courts have repeatedly held that summary judgment is appropriate

where a plaintiff has no proof of special damages. Plaintiff has not identified

special damages incurred by him as a result of statements made by the University

in connection with the decision to end Plaintiff’s employment. Accordingly,

Plaintiff cannot establish a valid claim for defamation against the University.

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E. Plaintiff Cannot Establish a Valid IIED Claim

Plaintiff alleges that Piedmont’s statement that Plaintiff had violated Title IX

and that “all protocol had been followed” caused him severe emotional distress.

(Complaint, ¶ 149). Although Georgia recognizes a cause of action for IIED, the

burden which a plaintiff must meet to prevail on this claim is a stringent one.

Frank v. Fleet Finance, Inc. of Georgia, 238 Ga. App. 316, 318 (1999).

Georgia case law is clear that statements to third parties will not sustain an

IIED claim. “Even malicious, willful or wanton conduct will not warrant a

recovery for the infliction of emotional distress if the conduct was not directed

toward the plaintiff.” Ryckeley v. Callaway, 261 Ga. 828, 829, 412 S.E.2d 826

(1992). Defamatory remarks made to others or to the public are classic examples of

conduct that, though maybe harmful to the plaintiff, was directed toward the hearer

of the statements, not to the plaintiff, and thus is not actionable as IIED. See,

e.g., Munoz v. American Lawyer Media, L.P., 236 Ga. App. 462, 465(1)(b), 512

S.E.2d 347 (1999). Defamatory statements directed toward third persons, like those

alleged by Plaintiff, are not actionable as IIED.

Moreover, the conduct must be extreme and outrageous (i.e., atrocious and

utterly intolerable) to be actionable. United Parcel Svc. v. Moore, 238 Ga. App.

376, 377, 519 S.E.2d 15 (1999). To prove an IIED claim, a plaintiff “must show

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that: (1) the defendant’s conduct was intentional or reckless; (2) the conduct was

extreme and outrageous; (3) there was a causal connection between the wrongful

conduct and the emotional distress; and (4) the emotional distress was severe.”

Lockhart v. Marine Mfg. Corp., 281 Ga. App. 145, 146-147 (2006) (emphasis

added). The level of outrageousness necessary “must be 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.” Id at 318.

The conduct Plaintiff alleges by Piedmont does not rise to the level of

outrageousness necessary to sustain a claim for IIED, and Plaintiff has not

produced any evidence that he has suffered severe emotional distress. He alleges

only that he was “humiliated, frightened and embarrassed.” Thus, Plaintiff’s IIED

claim fails as a matter of law.

F. Plaintiff’s Title IX Claim is Preempted by Title VII

It should first be noted that no court has recognized a private right of action

under Title IX by the alleged perpetrator of sex discrimination. See, e.g. Doe v.

Case Western Reserve Univ., 2015 WL 5522001 (N.D. Ohio 2015); Doe v.

University of the South, 687 F. Supp. 2d 744 (E.D. Tenn. 2009). The Title IX

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regulatory guidelines do not provide the basis for a breach of contract claim5, and

accordingly, Plaintiff’s Title IX claim against Piedmont fails as a matter of law.

“Title IX prohibits sex discrimination by recipients of federal education

funding.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). Plaintiff

alleges that Piedmont is liable to him for damages for violation of Title IX because

it: discriminated against him on the basis of his sex; came to an erroneous outcome

of its investigation of his sexually harassing conduct (Count VI); retaliated against

him for engaging in protected activities (Count VII); by engaging in selective

enforcement (Count VIII); and by acting with deliberate indifference to his rights

(Count IX). Because all such claims relate to Plaintiff’s employment with the

University, they are preempted by Title VII. It is undisputed that Plaintiff did not

file a charge with the EEOC that is prerequisite to a Title VII claim.

The Fifth and Seventh Circuit Courts of Appeal, as well as a multitude of

District Courts in the Eleventh Circuit, have held “that Congress intended Title VII

to exclude a damage remedy under Title IX for individuals alleging employment

discrimination.” Lakoski v. James, 66 F.3d 751, 755 (5th Cir.1995); see also,

5Dr. Mellichamp mentions in the termination letter that Plaintiff’s statements

violated Title IX. However, the letter clearly states that Dr. Mellichamp had
determined that the conduct at issue was seriously prejudicial to Piedmont and that
his termination was pursuant to Section 14 of the Manual.

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Delgado v. Stegall, 367 F.3d 668, 670 (7th Cir. 2004) (“[S]exual harassment of

university employees is not actionable under Title IX if the employee could obtain

relief under Title VII.”).

In Lakoski, the Fifth Circuit Court of Appeals explained that “the Title IX

right to be free from sex discrimination in employment is no different from the

Title VII right.” Id. However, if employment discrimination that violates Title VII

could be asserted under Title IX, “a complainant could avoid most if not all of

[Title VII's] detailed and specific provisions of ... law [and] ... could completely

bypass the administrative process, which plays such a crucial role in the scheme

established by Congress in Title VII.” Id. at 755. Plaintiff did precisely that,

amending his Complaint late in the process to assert Title IX claims without first

exhausting Title VII’s administrative procedures, and long after the deadline for

him to do so had expired. The Lakoski Court did not accept “that Congress offered

Title IX to employees of federally funded educational institutions so as to provide

a bypass to Title VII's administrative procedures.” Id. See generally, Wilborn v.

Southern Union State Cmty. Coll., 720 F.Supp.2d 1274 (M.D. Ala. 2010).6

6While neither the Supreme Court nor the Eleventh Circuit Court of Appeals have
expressly ruled on the issue, the prevailing view of District Courts in the Eleventh
Circuit is that Title VII preempts Title IX in the area of employment
discrimination. See Heatherly, 2018 WL 3439341, at *20[14]; Hazel v. School Bd.
of Dade Cnty., 7 F.Supp.2d 1349, 1354 (S.D. Fla. 1998); Blalock v. Dale County

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Because Plaintiff’s discrimination and retaliation claims relate solely to his

employment with the University, they should have been brought under Title VII,

and Plaintiff should be prohibited from pursuing such claims under Title IX.7

IV. CONCLUSION

Based on the foregoing, Piedmont University is entitled to summary

judgment in its favor on all claims asserted by Plaintiff.

Bd. of Educ., 84 F.Supp.2d 1291 (M.D. Ala. 1999); Morris v. Wallace Cmty.
College-Selma, 125 F.Supp.2d 1315, 1343 (S.D. Ala. 2001); Gibson v. Hickman, 2
F.Supp.2d 1481, 1484 (M.D. Ga. 1998); Drisin v. Fla. Int'l Univ. Bd. of Trustees,
No. 1:16-CV-24939, 2017 WL 3505299, at *5 (S.D. Fla. June 27, 2017), report
and recommendation adopted, No. 16-CV-24939-CIV, 2017 WL 10398209 (S.D.
Fla. Sept. 28, 2017); Cooper v. Georgia Gwinnett Coll., No. 116CV01177, 2016
WL 6246888, at *6 (N.D. Ga. Sept. 16, 2016), report and recommendation
adopted, No. 1:16-CV-1177, 2016 WL 6217124 (N.D. Ga. Oct. 25, 2016); Reese v.
Emory Univ., No. 1:14-CV-2222-SCJ, 2015 WL 13649300, at *5 (N.D. Ga. Jan.
29, 2015); Torres v. Sch. Dist. of Manatee Cty., Fla., No. 8:14-CV-1021, 2014 WL
4185364, at *4 (M.D. Fla. Aug. 22, 2014); Tompkins v. Barker, No. 2:10-CV-
1015, 2011 WL 3583413, at *5 (M.D. Ala. July 26, 2011), report and
recommendation adopted, No. 2:10-CV-1015, 2011 WL 3584306 (M.D. Ala. Aug.
15, 2011); Smedley v. Fulton Cty. Sch. Dist., No. 1:09-CV-1715, 2011 WL
13175900, at *3 (N.D. Ga. June 23, 2011); Schultz v. Bd. of Trustees of Univ. of W.
Fla., No. 3:06-CV-442, 2007 WL 1490714, at *3 (N.D. Fla. May 21, 2007);
Hankinson v. Thomas Cty. Sch. Dist., No. 6:04-CV-71, 2005 WL 6802243, at *2
(M.D. Ga. Oct. 28, 2005); see also, Nurradin v. Tuskegee Univ., No. 3:21-CV-
00155 (M.D. Ala. March 16, 2022) (holding Title VII preemption does not apply to
students who are also employees).
7 Because Plaintiff has failed to establish any valid claims against Piedmont,
Plaintiff cannot establish any entitlement to an award of punitive damages.

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CERTIFICATE OF COMPLIANCE

Pursuant to Local Rule 7.1(D), I certify this Motion complies with the font

and point selections approved by the court in LR 5.1(C).

Respectfully submitted this this 8th day of July, 2022.

s/Barbara A. Marschalk
Joseph C. Chancey, GA Bar No. 120520
Barbara A. Marschalk, GA Bar No. 324498
Meredith R. Guerrero, GA Bar No. 214274
Drew Eckl & Farnham, LLP
303 Peachtree Street, NE, Suite 3500
Atlanta, Georgia 30308
Telephone: (404) 885-1400
Facsimile: (404) 876-0992
Email: chanceyj@deflaw.com
Email: marschalkb@deflaw.com
Email: guerrerom@deflaw.com

s/Patrick W. McKee
Patrick W. McKee
Georgia Bar No. 494325
Law Office of Patrick W. McKee, LLC
19 Spring Street
Newnan, GA 30263
Telephone: 770-683-8900
Facsimile: 770-683-8905
Email: pwmckee@mckeelaw.com
Attorneys for Defendant Piedmont
University

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