Dr. Robert H. Wainberg v. James Mellichamp

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 21, 2024
• Docket: 23-11680
• Status: Published

Opinion

[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-11680 Non-Argument Calendar ____________________

DR. ROBERT H. WAINBERG, Plaintiff-Appellant, versus JAMES MELLICHAMP, THOMAS A. ARRENDALE, THOMAS M. HENSLEY, JR., STEWART SWANSON, DOCK C. SISK, et al.,

Defendants-Appellees. 2 Opinion of the Court 23-11680

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 2:22-cv-00155-MHC ____________________

Before ROSENBAUM, NEWSOM, and ANDERSON, Circuit Judges. PER CURIAM: Plaintiff-Appellant Dr. Robert H. Wainberg sued several of- ficers and trustees of Piedmont University. He alleged that they (1) conspired (a) to retaliate against him for filing a prior lawsuit and (b) to deter witnesses from participating in that lawsuit and (2) neg- ligently refused to prevent that conspiracy. The district court dis- missed Wainberg’s claims as time-barred. It did so based on its con- clusion that the statute of limitations ran from the first overt act Wainberg alleged as part of the conspiracy. But under our prece- dent, each overt act triggers its own statute of limitations, so Wain- berg’s claims arising out of some overt acts were timely. So we vacate the district court’s dismissal and remand for further pro- ceedings. I. BACKGROUND

Plaintiff-Appellant Dr. Robert H. Wainberg was a tenured biology professor at Piedmont University. Wainberg previously filed a separate lawsuit against Piedmont (the “First Lawsuit”). In the First Lawsuit, Wainberg alleged breach of contract and 23-11680 Opinion of the Court 3

violation of the implied duty of good faith and fair dealing. Wain- berg v. Piedmont Univ., No. 2:19-cv-00251. That case remains pend- ing.1 In that lawsuit, Wainberg alleged that Dr. James Mellichamp, Piedmont’s President, engaged in sexual harassment and discrimi- nation and retaliated against Wainberg for opposing that conduct by terminating Wainberg’s employment contract. Dr. Richard M. Austin, Jr., a former Piedmont biology pro- fessor, testified on Wainberg’s behalf by deposition and affidavit. Austin testified that Mellichamp (1) purchased alcohol for minors and took them to a gay bar on a college-sanctioned trip, (2) made unwanted sexual overtures and sexual innuendos towards Austin, (3) sexually assaulted Austin by grabbing his buttocks, and (4) cov- ered up a female employee’s complaint of sexual harassment against a University Vice President. Austin also testified that he complained to Piedmont’s then-President about Mellichamp’s sex- ual harassment. But according to Austin, Piedmont did nothing. Then, Austin recounted, Mellichamp retaliated by targeting Aus- tin’s son (a student) and family with excess scrutiny and discipline. Other witnesses made similar allegations. Those witnesses, current and former Piedmont professors and students, testified that, among other things, Mellichamp (1) failed to act against a fac- ulty member who was sexually harassing and stalking a student, (2) retaliated against another student for complaining of sexual harass- ment by a coach, and (3) terminated a faculty member who

1 Specifically, the parties have completed discovery and filed cross-motions for

summary judgment. 4 Opinion of the Court 23-11680

reported an administrator who was engaging in inappropriate con- duct with a student. In response to Austin’s testimony, Wainberg asserts that Piedmont’s officers and directors—including the Defendant-Appel- lees in this case—retaliated against Austin to deter him and other witnesses from testifying in the future. Specifically, Wainberg al- leges the following acts of retaliation, among others: 1. On March 14, 2019, the day after Austin’s deposition, Dean Steven Nimmo sent an email to the chair of Austin’s department asking if the chair had taken care of “the biology problem,” a reference to Austin. 2. On May 1, 2019, Mellichamp submitted an affidavit ac- cusing Austin of lying in his sworn testimony and attaching Austin’s son’s confidential Piedmont disciplinary records. 3. On June 13, 2019, Fred Bucher (Piedmont’s Title IX Di- rector at the time) emailed the City of Demorest, Georgia, (of which Austin was the Mayor) that Austin had a “personal issue” and was “trying to stick it to the college for some per- ceived wrong” and that Austin needed to “grow up.” 4. On August 7, 2020, Piedmont’s General Counsel Patrick McKee sent a letter to Austin, the City Council, and City of Demorest employees threatening litigation based on the City’s 2018 decision to raise water and sewer rates. Wain- berg alleges that the lawsuit was actually motivated by Aus- tin’s testimony. McKee’s letter insisted that any resolution 23-11680 Opinion of the Court 5

would require termination of Austin’s employment with Piedmont. 5. On November 23, 2020, Piedmont University filed a law- suit against Austin seeking Austin’s termination from Pied- mont and his removal from his position as Mayor. Pied- mont claimed that Austin’s testimony in the First Lawsuit was false and in bad faith. Following his testimony, Austin sent an email to Piedmont’s Title IX Office claiming that “through the actions of President James Mellichamp . . . Piedmont has repeatedly engaged in retalia- tion, harassment, and intimidation.” On August 7, 2022, Wainberg sued. He alleged that Defend- ants had (1) conspired (a) to retaliate against him for filing the First Lawsuit and (b) to deter witnesses from participating in that law- suit, in violation of 42 U.S.C. § 1985(2), and (2) they had negligently refused to prevent the conspiracy, in violation of 42 U.S.C. § 1986. Defendants moved to dismiss Wainberg’s complaint for fail- ure to state a claim. They argued, among other things, that the statute of limitations barred Wainberg’s claims. The district court granted that motion. Wainberg timely appealed. II. DISCUSSION

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2). In 6 Opinion of the Court 23-11680

other words, a plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In the context of section 1985 conspiracy claims, “conclu- sory, vague, and general allegations of conspiracy may justify dis- missal of a complaint.” Kearson v. S. Bell Tel. & Tel. Co., 763 F.2d 405, 407 (11th Cir. 1985). We review de novo the granting of a motion to dismiss for failure to state a claim. Newbauer v. Carnival Corp., 26 F.4th 931, 934 (11th Cir. 2022). For purposes of our review, we accept the com- plaint’s allegations as true and construe them in the light most fa- vorable to the plaintiff. Id. But we need not accept legal conclu- sions, even when they are “couched as . . . factual allegation[s].” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “A statute of limitations bar is an affirmative defense,” and a plaintiff is “not required to negate an affirmative defense in [its] complaint.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (citation and internal quotation marks omitted), abro- gated on other grounds by Twombly, 550 U.S. 544. So dismissal on stat- ute-of-limitations grounds is proper only where it is “apparent from the face of the complaint that the claim is time-barred.” Id. (citation and internal quotation marks omitted); see also Isaiah v. JPMorgan Chase Bank, 960 F.3d 1296, 1304 (11th Cir. 2020) (“A com- plaint need not anticipate and negate affirmative defenses and should not ordinarily be dismissed based on an affirmative defense unless the defense is apparent on the face of the complaint.”). 23-11680 Opinion of the Court 7

Here, the district court erred in determining that the statute of limitations barred Wainberg’s conspiracy claims. A. The statute of limitations ran separately for each overt act in further- ance of the § 1985 conspiracy.

Section 1985 “prohibits conspiracies to intimidate parties or witnesses to federal lawsuits.” Farese v. Scherer, 342 F.3d 1223, 1229 (11th Cir. 2003). A civil conspiracy, in turn, requires “an agreement between two or more people to achieve an illegal objective, an overt act in furtherance of that illegal objective, and a resulting in- jury to the plaintiff.” McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000) (en banc) (quoting Bivens Gardens Office Bldg., Inc. v. Barnett Banks Inc., 140 F.3d 898, 912 (11th Cir. 1998)). Conspiracy claims under section 1985 share the forum state’s statute of limitations for tort claims. Rozar v. Mullis, 85 F.3d 556, 560–61 (11th Cir. 1996). In Georgia’s case, that’s two years. See id. (citing GA. CODE ANN. § 9-3-33). But federal law determines when the cause of action for federal civil-rights claims accrues—in other words, when the statute of limitations begins to run. Id. at 561. As a general matter, that occurs when “facts which would sup- port a cause of action are apparent or should be apparent to a per- son with a reasonably prudent regard for his rights.” Id. at 561–62 (quoting Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987)). Here, the parties do not dispute the applicable statute of lim- itations but rather when the limitations period began to run. Wain- berg contends that the statute of limitations ran separately for each overt act taken in furtherance of the conspiracy. Defendants 8 Opinion of the Court 23-11680

disagree. They assert instead that the statute of limitations began to run on May 1, 2019 (the date of Mellichamp’s affidavit), when Wainberg should have been aware of the alleged conspiracy, so Wainberg’s suit is untimely.2 Wainberg is correct. In Mizell v. North Broward Hospital Dis- trict, 427 F.2d 468, 475 (5th Cir. 1970), the former Fifth Circuit re- jected the argument that the statute of limitations for a section 1985 conspiracy begins to run at the time of the first overt act, and no other overt acts during the limitations period can form the basis for a claim. 3 The former Fifth Circuit then remanded the case to the district court “to reinstate the case for further proceedings in light of our decision that the conspiracy charge is still viable as to”

2 Defendants also argue that Wainberg has forfeited his claim that the statute

of limitations runs separately for each overt act. To be sure, Wainberg did not explicitly articulate his argument or cite his principal case, Mizell v. N. Broward Hosp. Dist., 427 F.2d 468 (5th Cir. 1970), in the district court. But he argued that his claims “continued to accrue, evolve, and culminate” with the 2020 overt acts, so his suit is not time-barred. This does not amount to forfeiture. See, e.g., Yee v. City of Escondido, Cal., 503 U.S. 519, 534 (1992) (“Once a . . . claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.”); Sec’y, U.S. Dep’t of Lab. v. Preston, 873 F.3d 877, 883 n.5 (11th Cir. 2017) (“Parties can most assuredly waive positions and issues on appeal, but not individual argu- ments—let alone authorities. . . Offering a new argument or case citation in support of a position advanced in the district court is permissible—and often advisable.”). 3 All Fifth Circuit decisions issued before October 1, 1981, are binding prece-

dent in this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). 23-11680 Opinion of the Court 9

the overt acts during the limitations period. Id.; see also DeLaughter v. Borden Co., 364 F.2d 624, 628 (5th Cir. 1966) (citing with approval a case that “viewed each act of the defendant as a separate cause of action” for statute of limitations purposes). Though we apparently have not since revisited this issue, Mizell remains binding prior panel precedent. 4 See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). Our later decision in Rozar v. Mullis, 85 F.3d 556 (11th Cir. 1996), did not retreat from Mizell. Nor is it in conflict with Mizell. In Rozar, the plaintiffs al- leged a section 1985 conspiracy (among other claims) by both county and state defendants. Id. at 558. Specifically, the plaintiffs claimed that the siting (by the county defendants) and permitting (by the state defendants) of a landfill in their neighborhood was racially discriminatory in violation of the Fourteenth Amendment. Id. We dismissed the plaintiffs’ section 1985 claim against the county defendants as time-barred. Id. at 563. In doing so, we iden- tified the “operative decision amounting to the alleged constitu- tional injury”—in other words, the conspiratorial act underlying the section 1985 claim—as the County Board of Commissioners

4 Defendants argue that Mizell is no longer binding. For support, they rely on

Judge Tuttle’s statement in a partial dissent that “Mizell is overruled sub silen- tio by failing to consider its application to the facts of the case.” Blair v. Page Aircraft Maint., Inc., 467 F.2d 815, 821 (5th Cir. 1972) (Tuttle, J., concurring in part and dissenting in part). But a dissenting opinion cannot overrule prior panel precedent. And even if it could, Blair concerned a distinct aspect of Miz- ell: whether state or federal law governs the tolling of a statute of limitations. Id. 10 Opinion of the Court 23-11680

vote selecting the landfill site. Id. So, we reasoned, the statute of limitations ran from the date of that vote. Id. And any later action that the county defendants undertook, like exercising the option to purchase the landfill property, was merely a continuation of that “operative decision” rather than a discrete conspiratorial act sup- porting liability. See id; cf. Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (“[t]he proper focus” of the statute-of-limitations inquiry “is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful” (alteration in original) (citation and internal quotation marks omitted)). Those actions, therefore, did not trigger a distinct limitations pe- riod. See id. By contrast, we found that the plaintiffs’ section 1985 claims against the state defendants were not time-barred. Id. at 564. Ra- ther, the state defendants had not participated in the site-selection vote, so their liability could not attach until either the date they made a site-suitability determination or the date they issued the fi- nal permit. Id. The plaintiffs sued within the two-year limitations period following either of those actions, so their claims were timely. Id. But even if we were to view Rozar as suggesting that the stat- ute of limitations ran for only one of those allegedly conspiratorial acts rather than independently for each act, it is inconsistent with Mizell, and as our earlier precedent, Mizell controls. See MacPhee v. MiMedx Grp., Inc., 73 F.4th 1220, 1250 (11th Cir. 2023) (under the “earliest case” rule, when prior panel precedents conflict, the 23-11680 Opinion of the Court 11

earlier case controls). But we read Rozar’s result as entirely con- sistent with Mizell, so Rozar does not alter Mizell’s clear application to this case. Though we have apparently not cited Mizell since its issu- ance, we continue to believe it is legally sound. For instance, Miz- ell’s approach is consistent with several of our sister circuits. 5 See Nieves v. McSweeney, 241 F.3d 46, 51 (1st Cir. 2001); Singleton v. City of New York, 632 F.2d 185, 192 (2d Cir. 1980); Dique v. N.J. State Police, 603 F.3d 181, 189 (3d Cir. 2010); Scherer v. Balkema, 840 F.2d 437, 439– 40 (7th Cir. 1988); Gibson v. United States, 781 F.2d 1334, 1340 (9th Cir. 1986); Lawrence v. Acree, 665 F.2d 1319, 1324 (D.C. Cir. 1981). 6 And, though in a different context, the Supreme Court has also held that “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act.” Nat’l R.R. Passenger Corp. v. Mor- gan, 536 U.S. 101, 113 (2002). Morgan concerned the statutory pe- riod for filing Title VII discrimination and retaliation claims with the Equal Employment Opportunity Commission, id. at 105, but it is instructive here. In that case, the Supreme Court declined to al- low a plaintiff to overcome the statutory time bar for claims that

5 Some of these cases concern the statute of limitations for claims under sec-

tion 1983 rather than section 1985. But because both statutes apply to civil conspiracies, and both borrow statutes of limitations from state law, Rozar, 85 F.3d at 561, their reasoning applies in both contexts. 6 Indeed, Lawrence cites Mizell to support the proposition that “the statute of

limitations in a civil damages action for conspiracy runs separately from each overt act that is alleged to cause damage to the plaintiff.” 665 F.2d at 1324 & n.7. 12 Opinion of the Court 23-11680

were “sufficiently related” to timely claims. Id. But as relevant here, it treated each “independently discriminatory” act as starting a separate clock. See id. at 113. And as Justice O’Connor explained in her partial concurrence, this treatment is consistent with the Court’s approach in other contexts. See id. at 127 (O’Connor, J., concurring in part and dissenting in part); Klehr v. A.O. Smith Corp., 521 U.S. 179, 189 (1997) (for ongoing antitrust violations, “each overt act that is part of the violation and that injures the plaintiff . . . starts the statutory [limitations] period running again” (citation and internal quotation marks omitted)). Given Mizell, as well as persuasive authority from the Su- preme Court and our sister circuits, Wainberg’s section 1985 claims based on overt acts that occurred on or after August 7, 2020 (two years before he filed his lawsuit), were timely. That said, any claims based on acts before August 7, 2020, are time-barred. But while these time-barred acts may not them- selves form the basis of Wainberg’s claims, Wainberg may still use “the prior acts as background evidence in support of ” his timely conspiracy claims. See Morgan, 536 U.S. at 113. B. The continuing-violation doctrine does not apply to the untimely overt acts.

We briefly address the district court’s application of the con- tinuing-violation doctrine to Wainberg’s claims. We agree that the doctrine does not save the untimely overt acts. 23-11680 Opinion of the Court 13

Under the continuing-violation doctrine, a plaintiff may “sue on an otherwise time-barred claim when additional violations of the law occur within the statutory period.” Doe ex rel. Doe v. Swearingen, 51 F.4th 1295, 1305 (11th Cir. 2022) (quoting Ctr. for Bi- ological Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006)). For instance, “[i]f a defendant’s actions violate a plaintiff’s rights on a repeated or ongoing basis, then a cause of action may be timely even if the first violation took place outside the statute of limita- tions.” Id. But we apply that doctrine only in limited circumstances. We “distinguish[] between the present consequence of a one time violation, which does not extend the limitations period, and the continuation of the violation into the present, which does.” Id. (al- teration in original) (quoting Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 448 (11th Cir. 1993)). The continuing-violation doc- trine applies in only the second scenario. And the continuing-vio- lation doctrine similarly does not apply when a plaintiff alleges “a series of repeated violations that result in repeated harms.” Id. at 1306 (citing Morgan, 536 U.S. at 113). In those cases, “each new vi- olation” starts the clock on its own limitations period. Id. As we’ve explained, this case falls into the category of cases involving alleged repeated violations, each of which triggers its own statute of limitations. See id.; Helton v. Clements, 832 F.2d 332, 335 (5th Cir. 1987) (“the actionable civil injury to a plaintiff results from the overt acts of the defendants, not from the mere continu- ation of a [section 1985] conspiracy”). So the district court 14 Opinion of the Court 23-11680

correctly concluded that the continuing-violation doctrine does not apply. But because the district court did not consider the discrete statutes of limitations for each overt act, we remand so that it may do so. III. CONCLUSION

For the foregoing reasons, we vacate the district court’s or- der granting Defendants’ motion to dismiss and remand for further proceedings consistent with this opinion. VACATED AND REMANDED.