Case 2:19-cv-00251-MHC Document 185 Filed 08/18/22 Page 1 of 16

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 REPLY BRIEF IN RESPONSE TO PLAINTIFF’S

RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

COMES NOW Defendant Piedmont University (“Piedmont”), and hereby

submits this Reply Brief in Response to Plaintiff’s Response to Defendant’s Motion

for Summary Judgment.

I. Piedmont is Entitled to Judgment as a Matter of Law on Breach of

Contract

A. Construction of Plaintiff’s Contract is for the Court.

Plaintiff urges the Court out of desperation that there must be some issue of

material fact raised by his myriad claims of improper treatment for a jury to

consider. However, the law is clear: where the terms of the agreement between the

parties are unambiguous, the application of the undisputed facts to the contract is a

matter of law for the Court; no jury issue is raised. This principle is so well-

established that it is recognized by cases almost too numerous to cite. See, e.g.,
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Sims v. Taylor, Dkt. No. 05-00155-CV-CDL-4 (11th Cir., March 26, 2008) (per

curiam) (requirements of the contract are a matter of law for the court, summary

judgment appropriate where no genuine issue of material fact supports claim of

breach); Sims’ Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga.

1981), aff’d, 667 F.2d 30 (11th Cir. 1982) (construction and interpretation of a

written contract is a matter of law for the court); The Travelers Ins. Co., v. Blakey,

255 Ga. 699 (1986) (construction of contract for the court, even where ambiguous

no jury issue presented unless after application of rules of construct an ambiguity

remains); Odem v. Pace Academy, 235 Ga. App. 648 (1998) (where clear grounds

for termination, breach of contract claim cannot survive motion for summary

judgment where school had authority under contract to terminate).

Plaintiff ignores the well-established role of the Court in the construction of

contracts. But the function of this Court in contract construction is clear:

The construction of a contract is a three-step process. First, the construction

of a contract presents a question of law for the court. If no ambiguity
appears, the trial court enforces the contract according to its terms
irrespective of all technical or arbitrary rules of construction. See generally
Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700, 342 S.E.2d 308 (1986);
Karlan, Inc. v. King, 202 Ga.App. 713, 715(1), 415 S.E.2d 319 (1992). If the
terms of the contract are clear and unambiguous, the court must look to the
contract alone to find the intention of the parties. Howell Mill Collier Assoc.
v. Pennypacker's, Inc., 194 Ga.App. 169, 173(3), 390 S.E.2d 257 (1990).
Secondly, if ambiguity is determined to exist, the existence or nonexistence
thereof is itself a question of law for the court. "A jury question arises only
when there appears to be an ambiguity in the contract which cannot be
negated by the ... statutory rules of construction." Kusuma v. Metametrix,
Inc., 191 Ga.App. 255, 256(2), 381 S.E.2d 322 (1989). Contractual

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ambiguity is not indicated upon encountering difficulty in construing a

contract, unless after the pertinent rules of construction are applied, among
them the requirement that a contract be construed as a whole, see OCGA §
13-2-2(4); Duffett v. E & W Properties, 208 Ga.App. 484, 486(2), 430
S.E.2d 858 (1993), and uncertainty remains as to which of two or more
possible meanings represents the true intention of the parties. Crooks v.
Crim, 159 Ga.App. 745, 285 S.E.2d 84 (1981); Sims' Crane Svc. v. Reliance
Ins. Co., 514 F.Supp. 1033 (S.D.Ga.1981); aff'd, 667 F.2d 30 (11th
Cir.1982).

Booker v. Hall, 248 Ga. App. 639, 642-643 (2001).

B. There is No Ambiguity in Plaintiff’s Contract.

The terms of Plaintiff’s contract are straightforward and require 1) a

determination of cause and notice in writing of the specific conduct resulting in

termination; and 2) a right to a hearing before a special committee of the Board

who will decide the matter in a fair, impartial, and timely manner. Piedmont

substantially complied with these requirements. Plaintiff has abandoned – as he

must – any claim that Piedmont failed to determine proper cause and provide him

adequate notice of termination. Instead he focuses solely on the claim that his

hearing was not fair and impartial. This claim too must fail.

C. Substantial Compliance - Fair, Impartial, and Timely Hearing.

1. Plaintiff Accepted the Procedures for the Hearing.

A significant majority of Plaintiff’s claims of unfairness – such as lack of a

formal hearing, no opportunity to present additional witnesses, no cross

examination, insufficient time to prepare – are easily dispensed with: All the

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procedures for the hearing were presented in advance to legal counsel for Plaintiff,

and neither his legal counsel nor Plaintiff ever objected. The failure to object to the

proposed procedures waives the right to insist on other procedures. See St. Mary’s

Hosp. v. Cohen, 216 Ga. App. 761 (1995) (physician’s failure to respond to

limitations on privileges waives the right to insist on procedural requirements for

termination); O.C.G.A. §24-14-23.

2. Plaintiff Admitted Wrongful Conduct in the Hearing

Plaintiff addressed the hearing committee and admitted that he made the

sexual comments in his lectures. Plaintiff cannot credibly deny that he made

sexually perverse comments in class given the recordings of his lectures. Instead,

he insists these comments are appropriate pedagogical techniques. The hearing

committee disagreed and unanimously upheld the President’s decision. There can

be no breach of contract where “[t]he corporation had the immediate right to

terminate the [employee] at any time for failure ‘to fully and faithfully perform her

duties and obligations” and the board made the requisite determination.

Smitherman v. Mary House Ministries, 200 Ga. App. 116, 117 (1991).

3. Wainberg Cannot Complain that Knowledgeable Board

Members Heard his Appeal

Plaintiff complains that some of the special committee members were

already knowledgeable of the facts surrounding his termination before the hearing,

thus allegedly violating his contract. Dkt #173, pp. 11-12. However, in

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administrative hearings such as this, board members are often knowledgeable of

cases that come before them because that is part of their job as board members.

It is beyond bizarre that Wainberg argues that the board members hearing his case

should not have known anything of his termination, yet at the same time he

complains bitterly that the entire board should have known everything

concerning the alleged violation of Wainberg’s rights under Title IX – thus

supposedly making them liable for negligent hiring and retention of the President.

An analogous situation arose in a matter involving a dentist who faced the

loss of her professional license. See Georgia Bd. of Dentistry v. Pence, 223 Ga.

App. 603 (1996). Among the board members who heard the disciplinary case

against her were those who also previously investigated the matter. Professional

licensure hearings – unlike the hearing before the special committee of the

Piedmont Board – are subject to due process. 223 Ga. App., 604. These hearings

are also required by statute to be “free of bias, hostility and prejudgment.” Id.

However, the Court of Appeals observed that “[i]t is well-established that the

exercise of the combination investigative and adjudicative functions of an agency,

does not, per se, violate the requirements of due process,” and, accordingly, upheld

the board’s decision. 223 Ga. App, 605.

Here, some special committee members were aware of the Wainberg

termination in advance of the appeals hearing. However, there is no evidence that

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such knowledge biased them or prejudiced them in any way. Moreover, their

knowledge is far less than the board members involved in the investigation of the

dentist in Pence, and the applicable standard here – substantial compliance with the

contractual requirement of “fair and impartial” – is far lower than due process.

Perhaps more important is the observation of the Court in Pence that “[i]t is a well

settled principle that public officials shall be presumed to have performed their

duties and acted in good faith unless clearly proven otherwise.” 223 Ga. App., 606.

There is no evidence that the special committee members were anything but “fair

and impartial,” and no such evidence can be inferred from the fact they knew about

Plaintiff’s termination before the hearing.

4. Plaintiff Cannot Complain that Piedmont Presented its

Case to the Special Committee

Plaintiff bitterly complains that Piedmont’s representative at the hearing, Dr.

Rettig, represented to the special committee that the basis for Plaintiff’s

termination was a violation of the sexual harassment policy and that all

requirements of Title IX had been satisfied. Plaintiff asserts “[t]hese were false

representations” and “this was a lie.” Dkt #173, p. 4 & 10 (emphasis in the

original). However, it is undisputed that these statements were made by Dr. Rettig

as testimony in the hearing and that these statements accurately represent the

position of Piedmont then and now. Plaintiff had the opportunity at the hearing to

counter these statements. However, the special committee accepted Piedmont’s

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version of the facts when Plaintiff admitted to making sexually perverse comments

to his classes. The statements made by the Piedmont representative were made in

the context of a contested hearing, and Plaintiff had the absolute right to present

testimony and evidence in opposition, but he failed to do so.

5. Substantial Compliance with the Contract is all the Law

Requires

Plaintiff vehemently asserts “[a]t a minimum, a jury fact question exists as to

whether or not Defendant complied with their duty of good faith and fair dealing . .

.” Brief, p. 12. There is no such thing under Georgia law as an independent cause

of action for violation of the “duty of good faith and fair dealing.” Stuart

Enterprises Int’l, Inc. v. Peykan, Inc., 252 Ga. App. 231 (2001). Good faith is a

standard applicable to contracts in general, not an independent obligation, and is

interchangeable with concept of substantial compliance. Crooks v. Chapman Co.,

124 Ga.App. 718, 719–720 (1971); EZ Green Assocs., LLC v. Ga.–Paci. Corp.,

318 Ga.App. 655 (2012); O.C.G.A. §13-4-20.

As the Georgia Supreme Court explains, the adoption of “substantial

compliance” as the standard of contractual performance is a relaxation of the

common law requirement of “strict compliance” with contract terms:

Our general rule with respect to compliance with contract terms is not strict
compliance, but substantial compliance. [O.C.G.A. §13-4-20]; Henderson
Warehouse Co. v. Brand, 105 Ga. 217, 31 S.E. 551 (1898). "At common law
a strict and literal performance of the terms of the contract was required; but
by rules of equity, either adopted by statute or recognized by the courts, a

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substantial compliance with the terms of the contract is sufficient..."

Henderson, supra, at 222, 31 S.E. 551.

Dennard v. Freeport Minerals Co., 250 Ga. 330, 332 (1982); Kuritzky v. Emory

University, 294 Ga. App. 370 (2008) (a breach must be more than de minimus and

substantial compliance with the terms of the contract is all that the law requires).

Accordingly, under well-established Georgia law, Piedmont need only establish

that it has substantially complied with the requirements of Plaintiff’s contract, a

standard which it has demonstrably met. Contrary to his argument, “good faith and

fair dealing” is not requirement that adds greater burden to Piedmont’s cause.

The law recognizes even greater latitude in academic contracts with higher

educational institutions. As this Court held in Jansen v. Emory University, 440

F.Supp. 1060 (N.D. Ga. 1977), “[t]his Court's decision need not and should not be

controlled by a mechanistic application of the law of contract. Mahavongsanan [v.

Hall, 529 F.2d 448 (5th Cir. 1976)], recognizes that educational contracts have

unique qualities and are to be construed in a manner which leaves the school

sufficient discretion to ‘properly exercise its educational responsibility.’ See also

Slaughter v. Brigham Young University, 514 F.2d 622 (10th Cir. 1975).” Piedmont

substantially complied with the contract.

II. Plaintiff’s Title IX Claims are All Preempted by Title VII

A. Plaintiff Makes No Claim of Retaliation Unique to Title IX.

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Plaintiff concedes that all of his Title IX claims except his retaliation claim

are preempted by Title VII. However, it is clear that even his purported retaliation

claim is preempted by Title VII. It should first be noted that Plaintiff vastly

misrepresents his purported retaliation claim to this Court. In Paragraph 172 in his

Fifth Amended Complaint Wainberg contends he was retaliated for asserting his

own rights under Title IX – not those of others – such as “defending himself in

the disciplinary process.” Such claims of retaliation may be brought under Title

VII. Nowhere in the fifth iteration of his 60 page, 193 paragraph complaint does

Plaintiff ever assert that he was retaliated against – as he does now – for

“challenging the gender discriminatory grading of college athletes in his class.”1

Plaintiff goes on to elaborate this fantasy by contending “all of Dr. Wainberg’s

Title IX claims stem from Defendant’s retaliation against him for engaging in

protected activity.” Dkt #173, p. 13 (emphasis in the original). This back-fill

assertion is not supported by the allegations in the complaint or by the law.

The Supreme Court’s decision in Jackson v. Birmingham Bd. of Educ., 544

U.S. 167 (2005) is inapplicable in this case. Jackson implies a cause of action for a

coach asserting retaliation for complaining that his school was in violation of Title

1
In Paragraph 46 Plaintiff alludes to “discriminatory grading practices” though he
fails to tie this claim to gender or to athletes as he does now. Nowhere in Count
VII does Plaintiff mention he was retaliated against for asserting the rights of
others – only his own.

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IX’s requirements for equal funding of girls’ and boys’ sports. In Jackson the

plaintiff complained that his girls’ basketball team was not adequately funded or

equipped, and he alleged that he was retaliated against for such activity. The

Supreme Court held the statute implied a right of action for such protected activity

under Title IX. Plaintiff contends his Title IX claim is not preempted by Title VII

because his purported claim of “gender discriminatory grading” is “wholly

unrelated and unrecoverable under Title VII.” Dkt #173, p. 13. However, Plaintiff

makes no such claim. All of his purported Title IX claims are recoverable under –

and preempted by – Title VII. He failed to allege a claim under Title VII and

cannot now try to twist the law to try to convert his current lawsuit to a Title VII

claim.

B. Plaintiff Does Not Present a Plausible Retaliation Claim

According to the Supreme Court, to prevail on a retaliation claim, a plaintiff

must prove the defendant “retaliated against him because he complained of sex

discrimination.” Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 184 (2005).

Plaintiff’s allegations of retaliation are conclusory and do not permit a reasonable

inference that Piedmont was motivated by complaints of sex discrimination.

The only allusion to retaliation in the body of Plaintiff’s complaint is

Paragraph 46, in which he alleges “[t]he Title IX investigation continued on behind

Dr. Wainberg’s back throughout April of 2018 in retaliation as a result of Dr.

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Wainberg’s heated dispute with the administration challenging discriminatory

grading practices in March 2018.” This allegation is purely conclusory, devoid of

any facts, and is equally conducive to a reading that Plaintiff challenged

discriminatory grading practices on the basis of lawful conduct (such as

participation in athletics) and something other than sex. Allegations that are mere

“labels” and “unsupported by factual allegations” are not entitled to the assumption

of truth. Doe v. Samford Univ., 29 F.4th 675, 687-688 (11th Cir. 2022). Allegations

that permit obvious alternative explanations that suggest lawful conduct do not

support a plausible claim of retaliation. Id., at 688.

Moreover, Count VII of the Complaint provides no basis for a plausible

retaliation claim on the basis of sex discrimination. Paragraph 172 is nothing more

than the continuation of Plaintiff’s claims of procedural irregularities in the

disciplinary process. These allegations concern Plaintiff’s assertion of his own

purported rights under Title IX, not those of others- as he now contends. The

Eleventh Circuit found such allegations do not establish a violation of Title IX.

Samford, supra, 29 F.4th at 688. Piedmont is entitled to judgment as a matter of law

concerning Plaintiff’s retaliation claim.

III. Plaintiff’s Negligent Hiring and Retention Claims Fail

While Plaintiff refers the Court to testimony about Board members’

concerns about President Mellichamp’s leadership at various points in time,

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Georgia law is clear that, even when an employee is incompetent, “absent a causal

connection between the employee’s particularly 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.” Munroe v. Universal

Health Svcs., Inc., 277 Ga. 861 (2004). However, Plaintiff’s claims for negligent

hiring and retention are not based on any prior alleged breach of contract or

wrongful termination of another professor by President Mellichamp. Instead,

Plaintiff relies on the affidavit of a former student, who claims that, more than

thirty years ago, President Mellichamp (then Chair of the Music Department)

failed to intervene when the student tried to break off a consensual sexual

relationship he was engaged in with a different faculty member. The “retaliation”

allegedly suffered by this former student was that Dr. Mellichamp “acted upset”

and said “If I had known you were going to burn everything down I would have

hired Luciano Pavarotti as your vocal coach.” [Dkt #154-71]2 Putting aside

whether this rises to the level of “retaliation” contemplated by Title IX, there is no

evidence that President Mellichamp’s general behavior of acting “upset” and

making the alleged statement was ever brought to the attention of the Board or

2
Plaintiff’s Exhibit No. P-71 was simply one of several documents that are not in
evidence in the record before the Court outside of Plaintiff’s Notice of Filing
Exhibits, Dkt #154, a 961-page compilation of improper “exhibits” in violation of
LR 56.1(B)(1).

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Administration of the University. It certainly did not involve the alleged wrongful

termination of a tenured faculty member.

Similarly, Plaintiff relies on (very contested) statements that are also not in

evidence made by Rick Austin, another former faculty member, regarding alleged

“retaliation” of President Mellichamp that occurred after the termination of

Plaintiff. [Dkt #154-72, 73, 743]

Plaintiff has no evidence to support a claim for negligent hiring and

retention under Georgia law. Plaintiff’s assertion that “subsequent conduct and

acts may [be admitted to establish] motive in a prior employment decision”4 is

inapplicable in this case. Plaintiff did not file a Title VII employment case. Not a

single case cited for this proposition of law involved an allegation of negligent

hiring and retention under Georgia law.

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

This issue has been briefed extensively by the parties. Plaintiff takes issue

with three separate “publications.” First, Plaintiff cites to P-925, an email sent by

President Mellichamp to three members of the Board of Trustees, asking them to

serve in the capacity of the committee to hear any appeal regarding Plaintiff’s

3
Exhibits P-72-74 should also not be considered by the Court pursuant to LR
56.1(B)(1).
4
Dkt #173, p. 22.
5
Exhibit P-92 should also not be considered by the Court pursuant to LR
56.1(B)(1).

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termination. This is clearly protected pursuant to the intra-corporate exception to

defamation. Saye v. Deloitte & Touche, LLP, 295 Ga. App. 128 (2008).

Generally, publication is achieved by communicating a defamatory

statement to anyone other than the person being defamed. An
exception to that broad definition has evolved over time, however, and
it now excludes communications that are ‘intracorporate, or between
members of unincorporated groups or associations, and … heard by
one who, because of his/her duty or authority had reason to receive …
information.’
…
‘The legal fiction that no publication has occurred when the above
criteria are met is based on the sentiment that statements by either in
the hearing of the other concerning matters are the legal equivalent of
speaking only to one’s self.’ In that situation, no viable defamation
action exists.

Id. at 133, citations omitted.

Second, Plaintiff alleges that emails exchanged between President

Mellichamp and his personal friend and colleague, Monika Schulte, where the two

referred to Plaintiff as a “grouchy, miserable, poor, old has-been” and “deadbeat”

trying to “extort” the college give rise to a claim for defamation. Dkt #173, p. 26.

Such statements do not rise to the level of defamation per se. Plaintiff cannot

show special damages arising out of emails exchanged between President

Mellichamp and Monika Schulte. Therefore, summary judgment as to those

allegedly “defamatory” statements is appropriate.

Finally, the email sent by President Mellichamp to former faculty member

Ken Melichar does not constitute defamation per se because the words are not

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injurious on their face. Plaintiff contends that that Mellichamp “falsely conveyed

that he conceded the Title IX allegations by opting to walk away with a paltry sum

of money….” Dkt #173, p. 27. However, the court “may not hunt for a strained

construction” and the “negative inference” does not subject the speaker to liability

for slander per se. Cottrell v. Smith, 290 Ga. 517, 523 (2016).

V. Intentional Infliction of Emotional Distress

This Court should dismiss Plaintiff’s claims for IIED because the

termination of Plaintiff pursuant to his contract “cannot be characterized as the

type of shocking and outrageous behavior necessary for a recovery of damages.”

Bowers v. Estep, 204 Ga.App. 615, 618 (1992). Liability under these types of

claims has only been found where “the conduct has been 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.” Restatement (Second) of Torts, § 46(1), comment d. Plaintiff has

failed to plead or produce any evidence of “retaliation”. Further, Plaintiff’s

“heartbreak”, “stress,” “depression, anxiety, sleeplessness,” etc. are not the type of

severe emotional injury to allow recovery under Georgia law. “Severe emotional

injury means distress ‘’so severe that no reasonable man could be expected to

endure it.’’” Witter v. Delta Airlines, Inc., 966 F.Supp.1193, 1201(N.D. Ga.,

1997).

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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 18th day of August, 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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