[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT DECEMBER 30, 2010 No. 08-14304 JOHN LEY ________________________ CLERK
D. C. Docket No. 05-02277-CV-TWT-1
JANE DOE, No. 1, JANE DOE, No. 2, JANE DOE, No. 3,
Plaintiffs-Appellants,
versus
FULTON-DEKALB HOSPITAL AUTHORITY, d.b.a. Grady Health System, ROBERT ROHR, Director of Employee Relations, WILLIAM REED, Director of Psychological Services, VENUS UPSHAW, Clinical Director of the Drug Dependence Unit, STEVE KIMBRELL, ANTHONY STOVALL, Manager of the Human Resources Department,
Defendants-Appellees. ________________________
Appeal from the United States District Court for the Northern District of Georgia _________________________
(December 30, 2010)
Before TJOFLAT and ANDERSON, Circuit Judges, and WOOD,* District Judge.
TJOFLAT, Circuit Judge:
The Grady Memorial Hospital in Atlanta, Georgia, is operated by the
Fulton-DeKalb Hospital Authority, d/b/a Grady Health System (“Grady” or the
“Hospital”). As part of its Department of Mental Health Services (“DMHS”), the
Hospital maintains a Drug Dependence Unit (“DDU”). The plaintiffs in this case,
identified pseudonymously as Jane Doe Nos. 1, 2, and 3, claim that while being
treated for opiate addiction in the DDU’s methadone clinic, they were subjected to
sexual harassment at the hands of a substance abuse counselor, Steve Kimbrell.
Seeking compensation for the harassment they suffered, plaintiffs sued Kimbrell,
Grady, and those in charge of Grady’s DMHS, DDU, Department of Human
Resources (“DHR”), and Department of Employee Relations (“DER”). Their
* Honorable Lisa Godbey Wood, United States District Judge for the Southern District of Georgia, sitting by designation.
2 complaint1 contained seven counts: Count 1, a civil rights claim under federal law,
Counts 2 through 6, tort claims brought under Georgia law, and Count 7, a claim
for attorney’s fees under Georgia law.2 At issue in this appeal are the merits of the
district court’s orders dismissing Counts 2, 3, and 6 for failure to state a claim for
relief, and granting summary judgment on Count 4.3 Also at issue are the merits of
the district court’s order imposing sanctions against plaintiffs’ counsel for
pursuing a frivolous motion to disqualify the lawyers representing Grady and
those in charge of its DMHS, DDU, DHR, and DER.
We find no error in the district court’s disposition of Counts 2, 3, 4, and 6.
And we find no abuse of discretion in the court’s sanction order. We therefore
affirm the court’s judgment.
The facts underpinning plaintiffs’ claims, as asserted in the complaint and
borne out in the deposition testimony obtained during discovery, are not in
1 We refer to the amended complaint as the complaint. 2 The federal claim, Count 1, was brought under 42 U.S.C. § 1983, based on the Fourteenth Amendment’s equal protection and due process clauses. The district court had federal question jurisdiction over the § 1983 claim under 28 U.S.C. § 1331. The court asserted its supplemental jurisdiction over the state law claims, Counts 2 through 7, under 28 U.S.C. § 1367. 3 The plaintiffs settled their claims against Kimbrell. In this appeal, plaintiffs do not challenge the district court’s dismissal of their Count 1 § 1983 claims against the remaining defendants.
3 material dispute.4 We begin, in part I, with a recitation of those facts, then proceed
to the disposition of Counts 2, 3, 4, and 6 in the district court. Part II addresses the
merits of plaintiffs’ challenges to the court’s dismissal of those counts. Part III
considers the court’s sanction order against plaintiffs’ counsel.
I.
A.
In May 2004, Grady’s DHR advertised a substance abuse counselor position
in DDU’s methadone clinic. The advertisement, which was drafted by Venus
Upshaw, the clinic’s director, stated that applicants for the position had to “have at
least one year experience working with opiate addicts in a substance abuse
setting . . . [and would] provide case management, individual and group
counseling to opiate addicts in a methadone treatment clinic.”5 DHR forwarded
4 As we explain in part I.C, infra, we presume that, in granting portions of the defendants’ motions to dismiss Counts 2, 3, and 6 and in denying plaintiffs’ motion to vacate its orders, the district court augmented sub silentio the allegations of the complaint with facts revealed via deposition testimony taken during discovery—specifically the testimony of Steve Kimbrell—which plaintiffs contend buttressed the claims stated in those counts. The facts recited below, in parts I.A and I.C, reflect such augmentation and are materially undisputed. What is at issue here are the district court’s rulings that such facts, considered in the light most favorable to plaintiffs, see Centurion Air Cargo v. United Parcel Serv. Co., 420 F.3d 1146, 1149 (11th Cir. 2005), failed to state a claim for relief under Georgia law on Counts 2, 3, and 6, and a case sufficient to withstand the defendants’ motions for summary judgment on Count 4. 5 DHR advertised the counselor position after Upshaw sent DHR an “Employee Requisition” dated April 27, 2004. The position would become vacant on May 7, 2004. The Employee Requisition stated: “Position needs to be filled ASAP due to regulatory requirement (next audit scheduled for 5/24/04). Please run an ad in the newspaper ASAP.”
4 the resumes of qualified candidates it received to Upshaw, who, together with one
of the clinic’s substance abuse counselors, Terry Bones, interviewed the applicants
and reviewed their resumes. Upshaw was impressed by Steve Kimbrell’s resume
because Kimbrell had a master’s degree and several years’ prior experience in
methadone counseling in other substance abuse treatment facilities, including
stints as a program director. As required by DHR’s advertisement, he had been
certified by the Georgia Addiction Counselors Association as a second-level
Certified Addiction Counselor, known in the field as “CAC II.”
During her interview of Kimbrell, Upshaw asked about some of his “short
spurts” of employment which, she later said, caused her concern.6 According to
his application, Kimbrell had been employed as a program director at the New
Horizons treatment facility in Columbus, Georgia, from August 2001 to June
2003; as a program director at the New Beginnings treatment facility in McAllen,
Texas, from July 2003 to October 2003; and as a program director at American
Psychiatric Partners of Chattanooga, Tennessee, from November 2003 to May
2004. Kimbrell did not include any further information regarding former
employment in his application, even though the application required a “complete
6 Upshaw revealed this concern in a deposition taken during the discovery phase of this case.
5 work history” for the last ten years and stated, in bold font, that “[a] resume in lieu
of requested information is not acceptable.”
In response to Upshaw’s questions about his employment history, Kimbrell
explained that he moved from Georgia to Texas because he had the opportunity to
open a new program in Texas, and that he then left the Texas facility because he
felt there were “unethical things going on” there. He said that he left his job at
American Psychiatric Partners because he was employed on a contract basis and
his employer did not supply the health benefits that he needed.
Later in the interview, Upshaw asked Kimbrell what his former employers
would say about him, and he responded that they would say “all good things.”
Upshaw also asked him, “For those places that are still open, would you be
eligible to go back there?” Kimbrell answered in the affirmative.
Following the interview, Upshaw completed an evaluation form in which
she described Kimbrell as “highly qualified” and checked a box beside the
statement “Interested in Hiring (Recruiter will make offer based on this
selection).” Once Upshaw made this recommendation and forwarded it to DHR,
DHR controlled the remaining steps in the hiring process.
After Upshaw completed her recommendation, Grady’s hiring protocols
dictated that DHR (1) conduct a criminal background check, which was completed
6 by an outside firm; (2) perform a drug screen; and (3) contact the applicant’s past
employers in accordance with a Georgia Department of Human Resources
regulation, which Grady called an “employment verification.”7 Kimbrell’s
criminal background check and drug screen produced no evidence of criminal
activity or drug use. The DHR assistant tasked with completing the “employment
verification,”8 Kim Clark, was unable to reach representatives of American
Psychiatric Partners or New Beginnings who could tell her about Kimbrell’s past
employment. As was her practice, she made several attempts to contact previous
employers listed on the application, and when she found no one who could
7 The Department of Human Resources has since been renamed the Department of Human Services. The department regulation at issue, “Rules and Regulations for Narcotic Treatment Programs,” reads, in relevant part:
(8) Personnel Records. A program shall maintain written and verified records for each employee. Each employee file shall include:
(a) Identifying information including name, current address, current telephone number, and emergency contact persons;
(b) A five-year employment history or a complete employment history if the person has not worked five years;
(c) Evidence of a criminal record check obtained from law enforcement authorities that reflects the individual does not have a recent criminal history within the previous two years and that does not disqualify the individual from providing care to patients; ....
Ga. Comp. R. & Regs. 290-9-12-.09(8). 8 Contacting an applicant’s past employers was a task routinely assigned to DHR.
7 provide information about Kimbrell, she left messages and asked that a person
with knowledge about his previous employment return her call. Eventually, she
was able to reach Jim Vaughns, who trained Kimbrell in counseling techniques at
the New Horizons facility in Columbus. Vaughns told her the dates of Kimbrell’s
employment and job title, relaying no negative information. This was not unusual,
she said: “Most employers give out very limited information. I generally received
only job title, dates of employment, and sometimes salary information.”9
Based on Upshaw’s positive recommendation, as well as the unremarkable
results of the criminal background check, drug screen, and employer reference
inquiries, Grady hired Kimbrell as a substance abuse counselor in July 2004.10
B.
Around April 4, 2005, Jane Doe No. 1 told Upshaw that Kimbrell had made
inappropriate sexual advances toward her during counseling sessions. Among her
allegations were claims that he asked her to perform oral sex on him; told her that
9 Clark made this statement on deposition during discovery. Michael Black, DHR’s vice-president at the time, testified on deposition that “[i]t’s a general rule throughout the industry, when we call a previous employer, we are only [] going to get certain information, dates of employment[,] position title.” He said that if Grady were asked for information about a former employee who had been fired for sexually abusing patients, Grady would not divulge that information because of the potential legal consequences adverse to Grady’s interests. 10 The offer of employment was formally extended to Kimbrell by the head of DHR on behalf of Grady.
8 he wished to perform oral sex on her; asked her about her favorite sexual position;
put his hands under her shirt, touched her stomach and back, and commented on
how hot her skin was; asked her to bring nude pictures to her counseling sessions;
asked her when she last experienced an orgasm and whether it was self-induced;
and had erections while she was in his office. He often locked his office door
during their counseling sessions despite her requests to keep it open.
On April 8, Upshaw suspended Kimbrell and reported Jane Doe No. 1’s
allegations to Grady’s Public Safety Department.11 The Department interviewed
Kimbrell later in the day. On being confronted with the allegations, Kimbrell said
that he was not surprised that Jane Doe No. 1 had accused him of sexual
harassment, especially because, after he notified her that she had tested positive
for methamphetamine use, she had said “I’m going to get you for this.”
Investigators asked Kimbrell if anyone had made allegations of sexual harassment
against him at Grady prior to Jane Doe No. 1’s allegations, or whether similar
allegations had been made at his previous places of employment. Kimbrell
initially denied that any such allegations had been made.
11 In May, Upshaw also filed an ethics complaint with the Georgia Addiction Counselors Association.
9 On April 15 and 21, Jane Doe Nos. 2 and 3 formally complained that
Kimbrell had subjected them to inappropriate sexual behavior during counseling
sessions. They described conduct similar to that which Jane Doe No. 1 said she
had experienced. As before, Upshaw informed Grady’s Public Safety Department
of the complaints. The Department contacted Kimbrell’s former employers and
learned that Kimbrell’s unwelcome sexual behavior had not been confined to
Grady. Kimbrell had voluntarily left or had been terminated from three previous
positions. While working at a treatment facility in Huntsville, Alabama,12
Kimbrell was terminated after a female patient asked what kind of underwear he
wore, to which he responded that he did not wear underwear. When subsequently
questioned about this on deposition in the present case, Kimbrell said that his
Huntsville employer called this a “boundary issue.”13 At New Horizons in
12 The Huntsville facility was also called New Horizons, though it was not affiliated with New Horizons in Columbus. On deposition taken during discovery, Kimbrell testified that he worked at New Horizons in Huntsville for two years prior to taking the position at New Horizons in Columbus. 13 The Huntsville New Horizons facility’s report, which was unavailable to Upshaw and Bones during Kimbrell’s job interview but obtained during the prosecution of this case, was somewhat less charitable. The Huntsville official handling Kimbrell’s termination wrote in her report that “[a]fter investigating group content . . . many clients discussed [Kimbrell’s] perpetuating sexual content involving the only female client. He also discussed the personal life of [redacted] this client in open group forum. This is an ethical boundary issue, but also against group forum rules at [New Horizons], as well as the . . . sexual harassment policy.” Kimbrell also made comments in group therapy sessions about a patient’s attractiveness and how she should not have any trouble finding men.
10 Columbus, a patient accused him of attempting to exchange sex for money. On
deposition, he claimed that he ultimately left the Columbus facility voluntarily. At
American Psychiatric Partners he had what he described, again on deposition, as a
“boundaries issue episode” while counseling an adolescent female patient. The
separation notice he received indicated that the patient’s mother complained that
he instructed the patient to sit in his lap, straddling him.
Grady’s investigation established that Kimbrell had sexually harassed the
three plaintiffs, as they had alleged, and that, during his job interview with
Upshaw and Bones, he had withheld the truth about the circumstances under
which he left his previous employments. Grady therefore terminated his
employment in May 2005.
C.
The plaintiffs instituted this action on August 31, 2005. As noted in the
introduction to this opinion, the claims before us here are the state law claims
asserted in Counts 2, 3, 4 and 6.14 Count 2, styled “Sexual Harassment,” was
brought against Grady and those in charge of the Hospital’s DMHS, DDU, DHR,
and DER—William Reed, Venus Upshaw, Anthony Stovall, and Robert Rohr,
14 In listing the defendants named in these counts, we omit all reference to Kimbrell, as he has been dropped from the case via settlement with the plaintiffs. See supra note 3.
11 respectively.15 Count 3, “Professional Negligence,” was brought against Grady
and Upshaw. Count 4, “Negligent Hire and Negligence Per Se,” and Count 6,
“Intentional Infliction of Emotional Distress,” were brought against Grady, Reed,
Upshaw, Stovall, and Rohr.
The defendants responded to the plaintiffs’ complaint with motions to
dismiss. See Fed. R. Civ. P. 12(b)(6). On May 3, 2006, the district court,
addressing the sufficiency of Counts 1, 2, 3, and 6, entered an order granting in
part and denying in part the defendants’ motions. The court dismissed Count 1 as
to Rohr, Reed, and Upshaw,16 Count 2 as to Grady and Rohr, Count 3 in its
entirety,17 and Count 6 as to Grady, Reed, Upshaw, and Rohr. On July 14, 2006,
on reconsideration, the court dismissed Count 1 as to Stovall,18 Count 2 as to
Reed, Upshaw, and Stovall, and Count 6 as to Stovall. For the purposes of this
15 Plaintiffs sued the individual defendants in both their official and individual capacities. This appeal is limited to plaintiffs’ claims against these defendants in their individual capacities. 16 Count 1 was brought against all individual defendants, but not against Grady. 17 The court treated Count 3, a claim for professional negligence, as more accurately a claim for “ordinary negligence” subsumed within Count 4, as both were based on the defendants’ alleged negligence in the hiring, supervision, and retention of Kimbrell. We likewise treat Count 4 as incorporating the allegations of Count 3. 18 After dismissing Count 1, the federal claim, in its entirety, all that remained were plaintiffs’ state law claims. The court exercised its supplemental jurisdiction over those claims, see 28 U.S.C. § 1367, eventually disposing all of them adversely to plaintiffs.
12 appeal, what remained of plaintiffs’ state law claims were the allegations against
all five defendants contained in Count 4.19
Meanwhile, the parties had been engaged in discovery, and on June 16,
2006, plaintiffs deposed Kimbrell. He testified that the behavior complained of
was part of his approach to counseling patients:
Q. So the touching in which you engaged in this case was something you considered to be part of the therapeutic process and part of your job, correct? A. Yeah. I mean it was a part of a therapeutic lesson to teach [Jane Doe No. 3] about her own personal space. ....
Q. Mr. Kimbrell, I want to ask you a little more about this theory of boundary -- working on boundary issues with patients. As I understand it, what you would do is essentially set up a situation where you would cross the patient’s boundaries? A. Yes, sir. Q. And then tell them that you had crossed their boundaries, correct? A. Yes, sir. Q. And then you would [tell] them that they were wrong for having let you do so? A. I wouldn’t say wrong. I would try to find out why they felt that it was appropriate to allow that to happen. Q. Okay. A. So we can get into some underlying issues as to why they feel like that their self-worth is so minimal to allow that to happen. Q. Is there no other way that you could have explored their boundaries other than violating them?
19 Count 5, a claim of negligent supervision and retention, also remained, but we decline to discuss the court’s disposition of that claim because it is not before us on appeal.
13 A. Every counselor has a different technique. This is one that I chose to do. I’m not saying that it is probably one that another counselors [sic] may or may not do. I can’t speak for other counselors. It’s just with this population, sometimes you need to do something a little above and beyond to get the point across. ....
Q. What is your boundary in your relationships with your patients on what is appropriate interaction, physical interaction? A. When it comes to a boundary episode? Q. No. What is your boundary; what do you consider to be the boundary that you set as a professional in interacting with your female clients? ....
A. My boundaries are to the point where the patient -- to get to the point where the patient can understand and realize what their limitations are. I -- I don’t know if I can explain what my boundaries are as far -- Q. Isn’t it the counselor’s obligation to set the boundaries, not to violate them? A. If you are intending to do harm -- which I’ve never done. It’s never been the intent. It’s never been the intent to do something to hurt someone. It’s always been a teaching technique. That’s the whole idea. Q. So as long as you’re doing it with good intentions, is there anything that is off limits? A. Oh, yeah, I mean you don’t -- I mean you don’t -- you know, to take people’s clothes off or, you know, you don’t get so close up into somebody, you know, that they feel like they’re being threatened or anything like that.
Armed with this testimony, plaintiffs moved the district court to vacate and
revise its May 3 and July 14 orders, which together operated to dismiss the state
law claims in Counts 2, 3, and 6 for failure to state a claim. The plaintiffs argued
that Kimbrell’s testimony showed that he was acting within the scope of his
14 employment, and that they therefore had stated a case against Grady, if not the
other defendants. The court construed the motion as one for reconsideration and
summarily denied it.20
On April 10, 2007, the five defendants moved the court for summary
judgment on, inter alia, the Count 4 claims. See Fed. R. Civ. P. 56. The district
court granted the motions. The court thereafter sanctioned plaintiffs’ counsel for
prosecuting a frivolous motion for the disqualification of defense counsel.
Following the entry of final judgment, plaintiffs and their attorneys took this
appeal.
II.
We begin our review by addressing, in part II.A, plaintiffs’ claims for sexual
harassment and intentional infliction of emotional distress asserted in Counts 2
20 The district court’s order denying the plaintiffs’ motion to vacate did not indicate whether the court considered the additional facts disclosed in Kimbrell’s deposition testimony. In reviewing the court’s disposition of Counts 2, 3, and 6, we treat the court as having considered those facts in light of plaintiffs’ claim that they buttressed the complaint’s allegations. See supra note 4. Of course, in ruling on the defendants’ motions for summary judgment on Count 4, the court considered all relevant evidence the record presented.
15 and 6, respectively.21 We then consider, in part II.B, the negligence claims
asserted in Count 4.22
Plaintiffs do not claim that the defendants directly committed the acts that
form the basis of their claims in Counts 2 and 6. Rather, the defendants’ potential
liability for Kimbrell’s actions necessarily rests on the theory of vicarious liability.
We begin with the claims against Grady, then assess the claims against the
individual defendants, Reed, Upshaw, Stovall, and Rohr.
1.
The claims against Grady in Counts 2 and 6 are based on the theory of
respondeat superior. Under Georgia law, “[e]very person shall be liable for torts
committed by . . . his servant by his command or in the prosecution and within the
scope of his business, whether the same are committed by negligence or
voluntarily.” O.C.G.A. § 51-2-2. Respondeat superior has been
21 We review these two counts together because the only evidence of the sexual harassment and emotional distress plaintiffs allegedly suffered was as a result of Kimbrell’s inappropriate conduct. 22 See supra note 17. In reviewing the district court’s grant of summary judgment under Federal Rule of Civil Procedure 56, we view the evidence presented to the district court in the light most favorable to plaintiffs. Hearn v. McKay, 603 F.3d 897, 901 (11th Cir. 2010) (per curiam).
16 thoroughly addressed by the Georgia appellate courts, both generally and with
regard to sexual misconduct by employees.
In order for an employer to be held liable under the theory of respondeat
superior, two elements must be present: “first, the servant must be in furtherance
of the master’s business; and, second, he must be acting within the scope of his
master’s business.” Piedmont Hosp., Inc. v. Palladino, 580 S.E.2d 215, 217 (Ga.
2003) (citations and internal quotation marks omitted). Here, the question is
whether the misconduct Kimbrell engaged in while employed within the DDU was
sufficiently in furtherance of Grady’s business and within the scope of his
employment to trigger the theory. We conclude that the answer is no.
“Georgia courts have consistently held that an employer cannot be held
liable under respondeat superior for an employee’s sexual misconduct when the
alleged acts were not taken in furtherance of the employer’s business and were
outside the scope of employment.” Id. (citations omitted); see also Alpharetta
First United Methodist Church v. Stewart, 472 S.E.2d 532, 535 (Ga. Ct. App.
1996) (“[I]t is well settled under Georgia law that an employer is not responsible
for the sexual misconduct of an employee.” (citations omitted)). As one Georgia
court explained, “[t]he basis for these holdings is that these types of torts, being
purely personal in nature, are unrelated to the employee’s duties and, therefore, are
17 outside the scope of employment because they are not in furtherance of the
master’s business.” Stewart, 472 S.E.2d at 536 (citations omitted). If an employee
commits “an act entirely disconnected from [his master’s business], and injury to
another results from the act, the servant may be liable, but the master is not liable.”
Palladino, 580 S.E.2d at 217 (quoting Brownlee v. Winn-Dixie Atlanta, Inc., 523
S.E.2d 596, 598 (Ga. Ct. App. 1999)). Thus, that Kimbrell’s actions occurred
while on the job is not dispositive.
Palladino is quite instructive for our analysis, and we find it controlling. In
that case, a hospital employee was responsible for providing post-surgical
treatment to a patient who had undergone angioplasty surgery. Id. at 216.
Because the surgery required the insertion of a sheath in the femoral artery of the
patient’s groin, the employee was authorized to enter his room alone, check his
groin area for any problems, and, if medically required, manipulate the patient’s
genitals to perform the authorized tasks. Id. The patient awoke following surgery
to find the employee manipulating his genitals in a sexual manner. The patient
attempted to hold the hospital liable for the employee’s misconduct under a host of
theories, including respondeat superior. Id.
The Supreme Court of Georgia held that the hospital could not be held
vicariously liable under the theory of respondeat superior for the actions of its
18 employee. Id. at 217. Adhering to the principles expressed above, the court stated
that there “can be no disputed issue of fact that if, as alleged, [the employee]
improperly manipulated [the patient’s] genitals . . . , those acts (1) were committed
for purely personal reasons associated solely with [the employee’s] own
gratification, and (2) were entirely disconnected from the scope of [the
employee’s] employment” at the hospital. Id. In the court’s view, the moment
that the employee deviated from his job duties in order to act on his sexual
impulses, he was “acting not as a hospital employee, but rather purely for his own
personal reasons.” Id. Pursuant to this reasoning, the court reversed the court of
appeals and declared that summary judgment for the employer was appropriate on
these facts. Id. We find it particularly noteworthy that the court came to this
conclusion despite the employee’s authorization to touch the patient’s genitals for
medical purposes. See id. at 216.
In an attempt to distinguish the case at hand from Palladino, plaintiffs place
great emphasis on the deposition testimony of Kimbrell and his subjective belief
that his actions were part of his job and therefore within the scope of his
employment. Plaintiffs rely on Johnson v. Allen, 613 S.E.2d 657 (Ga. Ct. App.
2005), for the proposition that the motivation of an employee is a controlling
factor in the respondeat superior inquiry. Their reliance is misplaced; Johnson
19 does not stand for such a broad proposition. In Johnson, the court of appeals
affirmed the trial court’s denial of summary judgment for an employer where the
manager of operations in a cold storage facility used a camera to monitor the
women’s restroom. 613 S.E.2d at 659, 662. The camera had been put into place
by the employer in response to rumors that drugs were being sold in the restroom,
and the employer had instructed the manager to observe activity within the
restroom. Id. at 659. The court found it impossible to distinguish between
observations of the women’s restroom explicitly authorized by the employer on
one hand and observations made purely for the manager’s own personal reasons
on the other; “there is no evidence that [the manager] acted solely for his personal
sexual gratification in this case, as opposed to conducting an investigation of
suspected criminal conduct for his employer.” Id. at 663.
In short, when the allegedly tortious behavior is identical to behavior
authorized by the employer—i.e., observing women in the restroom using a hidden
camera installed by the employer—a question of fact remains whether the
employee is acting within the scope of his employment. But because Grady did
not mandate the behavior complained of and Kimbrell abused his authority to
pursue his own sexual agenda, we conclude that his conduct was analogous to that
of the employee in Palladino and therefore outside the scope of his employment.
20 In so concluding, we in no way run afoul of the entirely reasonable holding of
Johnson.23
Thus, we agree with the district court’s conclusion that the complaint’s
factual allegations established that, like the employee in Palladino, Kimbrell acted
purely for his own personal gratification and outside the scope of his employment
in his mistreating of plaintiffs. Grady was therefore entitled to the dismissal of
Counts 2 and 6.24
2.
Plaintiffs’ claims against the individual defendants in Counts 2 and 6 are
based on the theory that they were “‘joint tort feasors’ within the meaning of the
23 Were Kimbrell instructed to thoroughly pat down his patients, for example, a claim that such a pat down constituted sexual assault for which Grady may be liable would be analogous to the claim presented in Johnson v. Allen, 613 S.E.2d 657 (Ga. Ct. App. 2005), and would likely survive a motion to dismiss. But nothing before the district court in this case indicated that Grady granted Kimbrell any such authority, or the authority to make the sexual advances that occurred here. That Kimbrell attempted to explain away his misconduct as part of his counseling “technique,” then, is largely irrelevant to Grady’s potential liability. Assuming for sake of argument that Kimbrell was authorized to discuss personal sexual relationships with his patients, we find that authority analogous to the employee’s authority in Piedmont Hospital, Inc. v. Palladino, 580 S.E.2d 215 (Ga. 2003) to manipulate his patient’s genitals for medical purposes; once Kimbrell used his position to further his own sexual goals, he ceased to act within the scope of his employment. 24 This holding, consistent with Georgia law, does not, as plaintiffs fear, insulate employers from liability for all sexual misconduct of employees. As seen in Johnson, if an employer authorizes behavior that could be directly utilized for sexual misconduct, a claim based on respondeat superior may be heard by the jury. 613 S.E.2d at 662. Further, as we discuss in part II.B, infra, employers still retain a duty to exercise reasonable care in hiring, supervising, and retaining employees. It is worth noting, of course, that Kimbrell was personally exposed to liability for his sexual misconduct. Indeed, he settled with each of the plaintiffs.
21 Official Code of Georgia” because they “entrusted” Kimbrell with the authority to
commit the acts plaintiffs complained of. We find no support for this claim in
Georgia law.
The Georgia statutes establish joint tortfeasor liability when a person
“maliciously procures” someone to injure another person, whether via “an
actionable wrong or a breach of contract.” O.C.G.A. § 51-12-30. The Georgia
courts have consistently held that “a malicious act involves all that is usually
understood by the term ‘wilful,’ and is further marked by either hatred or ill will or
by such utter recklessness and disregard of the rights of others as denotes a corrupt
or malevolent disposition.” Harvey v. Nichols, 581 S.E.2d 272, 277 (Ga. Ct. App.
2003) (quoting Partain v. Maddox, 206 S.E.2d 618, 622 (Ga. Ct. App. 1974)); see
also Vickers v. Motte, 137 S.E.2d 77, 80 (Ga. Ct. App. 1964).
The complaint contains no allegation that any of the individual defendants
acted maliciously or with such recklessness “as denotes a corrupt or malevolent
disposition.” Nor does the complaint allege that any of the individual defendants
procured Kimbell with the intent to injure the plaintiffs, such that any individual
22 defendant would become a joint tortfeasor with Kimbrell. Accordingly, the
district court did not err in rejecting plaintiffs’ theory of joint tortfeasor liability.25
Counts 4 and 5 alleged that plaintiffs’ injuries were the result of the
“negligent hire” “negligence per se,” and “negligent supervision and retention” of
Kimbrell as well as “negligence per se” committed by Grady and his staff.26 The
district court disagreed, concluding that the evidence in the record failed to
support the allegations. In their opening brief on appeal, plaintiffs did not
challenge the district court’s rejection of their claim of negligent supervision and
retention. What remains, therefore, are plaintiffs’ challenges to the district court’s
25 In an effort to circumvent the high bar of O.C.G.A. § 51-12-30, plaintiffs argue on appeal that it “has long been Georgia law that where ‘the alleged negligent acts of two or more tortfeasors result in a single and indivisible injury . . . the alleged tortfeasors may be sued jointly.’” Appellant’s Br. 46 (citing Parks v. Palmer, 260 S.E.2d 493, 495 (Ga. Ct. App. 1979); Sims v. Bryan, 230 S.E.2d 39, 42 (Ga. Ct. App. 1976)). In other words, plaintiffs contend that negligence in the hiring of an employee should expose individuals in the human resources department of an employer to joint liability for any tort committed by the hired employee. While negligence of an employee may expose an employer to liability under the theory of respondeat superior, as discussed in part II.A.1, supra, we have seen no indication that the Georgia courts would adopt plaintiffs’ proposition for such far-reaching vicarious individual liability, and thus dispatch the proposition here. Even if this were an incorrect reading of Georgia law, it is of no import to the disposition of this case, as we find, in part II.C, infra, that the actions of the individual defendants relating to the hiring of Kimbrell were reasonable as a matter of Georgia law. 26 As discussed in note 17, supra, the district court treated Count 3’s allegation of “professional negligence” as a mislabeled claim for ordinary negligence and considered it alongside Count 4.
23 rejection of their Count 4 claims of negligent hiring and negligence per se.
Plaintiffs assert that the individual defendants and Grady must be held to answer
for the hiring of Kimbrell under these two related theories. First, plaintiffs urge
that, under Georgia tort law, the defendants owed plaintiffs a duty of due care not
to recommend the hiring of a substance abuse counselor they knew, or should have
known, would likely to subject them to the sort of inappropriate acts Kimbrell
committed, and that they breached this duty.27 Second, plaintiffs purport that the
individual defendants, and therefore Grady, breached a standard of care prescribed
by Georgia statute and regulations promulgated thereunder, and further that such
breach constituted negligence per se. We consider the alleged negligence at
common law and under the per se doctrine in turn.
Upshaw, DDU’s clinical director, interviewed Kimbrell and recommended
that DHR consider hiring him for the substance abuse counselor position after
checking his background according to the protocols outlined in part I.A, supra.
Stovall, the head of DHR, assigned Kim Clark, one of his assistants, to perform
the background check. There is nothing in the record to support plaintiffs’
27 Georgia has codified some features of the common law dealing with negligent hiring. See O.C.G.A. 34-7-20.
24 argument that, in so doing, Stovall breached the duty of care plaintiffs assert.
Stovall, like Reed and Rohr, the heads of DMHS and DER, respectively, had no
involvement in determining Kimbrell’s qualification or fitness for the counselor
position. Thus, their liability, if any, for Upshaw’s or Clark’s conduct would have
to be vicarious. And there is nothing in the record that makes out a case of
vicarious liability against any of them. Accordingly, the district court did not err
in granting Stovall, Reed, and Rohr summary judgment on Count 4.
Plaintiffs’ hiring claims therefore center on whether Upshaw and Clark, who
was not sued, had a duty to plaintiffs to exercise ordinary care in recommending
for employment a candidate for the substance abuse counselor position who was
qualified and fit for the job—specifically, a person not likely to engage in the
sexual misconduct complained of. We assume for sake of argument that Upshaw
and Clark owed plaintiffs such a duty of care and that if either Upshaw or Clark
breached it by recommending someone she knew, or should have known,
presented a risk of sexual misconduct, Grady would be liable. If Upshaw
committed the breach, she would be liable, too.
We begin our analysis by observing that, in Georgia, an employer “is bound
to exercise ordinary care in the selection of employees and not to retain them after
25 knowledge of incompetency.” O.C.G.A. § 34-7-20.28 “The appellate courts [of
Georgia] have recognized that an employer may be liable for hiring or retaining an
employee the employer knows or in the course of ordinary care should have
known was not suited for the particular employment.” Munroe v. Universal
Health Servs., Inc., 596 S.E.2d 604, 605 (Ga. 2004) (citations omitted); see also
Stewart, 472 S.E.2d at 536 (“An employer may not be held liable for negligent
hiring or retention unless the plaintiff shows the employer knew or should have
known of the employee’s violent and criminal propensities.” (citing Thurmond v.
Richmond Cnty. Bd. of Ed., 428 S.E.2d 392, 395 (Ga. Ct. App. 1993); Odom v.
Hubeny, Inc., 345 S.E.2d 886, 888 (Ga. Ct. App. 1986))).
It is undisputed that neither Upshaw nor Clark had actual knowledge of
Kimbrell’s tendency to harass patients, as evidenced by his behavior in previous
employments. For liability to attach, then, plaintiffs had to show that Upshaw or
Clark, through the exercise of ordinary care, should have known of these
tendencies, i.e., Kimbrell’s “propensity for sexual misconduct.” See Stewart, 472
S.E.2d at 536 (citing Slaton v. B & B Gulf Serv. Ctr., 344 S.E.2d 512 (Ga. Ct.
App. 1986)).
28 O.C.G.A. § 34-7-20 is a codification of common law. See e.g., Cherry v. Kelly Servs., Inc., 319 S.E.2d 463, 464 (Ga. Ct. App. 1984).
26 We find that the screening protocols Upshaw and Clark followed, while less
than ideal, were sufficient to satisfy the standard of care Georgia law prescribes in
the hiring context. Instructive for our analysis is Munroe. In Munroe, a mental
health assistant at a residential treatment facility administered incapacitating
medication to a patient and raped her. 596 S.E.2d at 605. In concluding that the
employer was entitled to summary judgment on negligent hiring claims, the
Supreme Court of Georgia noted that the employee provided dishonest
information in his employment application. Id. In exercising what the supreme
court deemed to be ordinary care as a matter of Georgia law, the employer hired a
private investigation company, which found, among other things,
that [the employee] had misrepresented to his own benefit the reason why he had been fired by a previous employer; and that [the private investigation company] had been unable to confirm the existence of two prior employers listed by [the employee] or any details of [his] alleged employment at these businesses, one of which had operated the facility where [the employee] gained the personal care experience [the employer] considered critical to his employment as a mental health assistant.
Id. at 607. The supreme court emphasized that, despite uncovering these potential
red flags, the investigators did not find any evidence of criminal activity. Id. at
608.
27 Further, the evidence in Munroe showed that the person tasked with
interviewing the employee prior to the employment decision could not remember
doing so and that the employee in charge of hiring did “not obtain the independent
confirmation she felt was needed” regarding the employee’s previous employment.
Id. at 607–08. “Nor d[id] it appear that anyone at [the employer] required [the
employee] to explain the mistakes found in his application form.” Id. at 608.
Thus, while the Munroe investigation had unveiled “problems,” “there [was] no
question of fact that these problems did not involve any accusations of criminal
activities or violent behavior or any other indication that [the employee] posed any
risk of personal harm to others.” Id. As a result, “the evidence uncontrovertedly
establishe[d] that [the employer] did not disregard indications of a propensity to
inflict physical harm which ought to arouse suspicion and investigation.” Id.
(citations and punctuation omitted); see also Bunn-Penn v. S. Reg’l Med. Corp.,
488 S.E.2d 747, 749–50 (Ga. Ct. App. 1997) (holding that a hospital was entitled
to summary judgment on negligent hiring and retention claims based on a sexual
assault committed by an emergency room nurse, despite reports from other nurses
about potentially “inappropriate” tendencies around female patients).
28 Upshaw and Clark clearly met the standard of care set forth in Munroe.29 It
is uncontested that Kimbrell’s criminal background check—conducted by an
outside firm—produced no evidence of convictions or criminal activity. His drug
screen showed no evidence of drug use. Employees of Grady successfully
contacted a representative of at least one former employer and received no
negative information or any indication that Kimbrell had any tendency to commit
acts of sexual misconduct.30 This evidence is “plain, palpable and undisputable”
that neither Upshaw nor Grady are liable to plaintiffs under a negligent hiring
theory for the injuries they sustained because of Kimbrell’s actions. See Munroe,
596 S.E.2d at 608. We affirm the district court’s grant of summary judgment to
Upshaw, and therefore to Grady, on plaintiffs’ common law negligence claims.31
29 Plaintiffs point to Underberg v. Southern Alarm, Inc., 643 S.E.2d 374 (Ga. Ct. App. 2007), to argue that Clark’s failure to contact employers leaves an issue for the jury as to their negligent hiring claim. We do not find Underberg to counsel such a holding. In Underberg, a convicted violent felon was hired by a home security system company to market its services door-to-door. Id. at 375. The employee then kidnaped a customer at gunpoint. Id. The company did not conduct a criminal background check, and the court held that granting summary judgment on the negligent hiring claim was error. Id. We find the facts in the case at hand more analogous to Munroe v. Universal Health Services, Inc., 596 S.E.2d 604 (Ga. 2004), and therefore follow its holding. 30 Plaintiffs attack the district court’s reliance on Clark’s deposition testimony regarding her contact with Kimbrell’s past employers, claiming the testimony to be unreliable and inadmissible. We need not address these concerns, as the efforts made by Grady were reasonable as a matter of law—regardless of the exact number of phone calls made by Clark—under Munroe. 31 We share plaintiffs’ concern that an easily satisfied standard of care in negligent hiring cases may provide insufficient incentive for Georgia employers to ensure safety in the workplace.
29 2.
Plaintiffs further assert that the defendants were negligent per se because
they failed to “maintain written and verified records” for Kimbrell, including a
“five-year employment history or a complete employment history if [Kimbrell]
ha[d] not worked five years.” See Ga. Comp. R. & Regs. 290-9-12-.09(8).32
In plaintiffs’ view, the defendants’ failure to comply with this regulation led
directly to Kimbrell’s mistreatment of plaintiffs and therefore exposes the
defendants to liability for negligence per se.
As articulated by the Court of Appeals of Georgia,
Georgia law allows the adoption of a statute as a standard of conduct so that its violation becomes negligence per se. “In determining whether the violation of a statute or ordinance is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against.”
We fear, however, that placing undue emphasis on the contacting of previous employers would greatly burden employers with little added benefit to workplace safety. As noted in part I.A, supra, hospital employers are generally hesitant to share much information about past employees for fear of legal consequences; as a result, requiring more diligence in this area could merely send future human resources personnel on fools’ errands. In any event, it is our duty in this case to follow Georgia law, not alter it as we see fit. 32 This regulatory prescription was adopted pursuant to O.C.G.A. § 26-5-2 et seq. Ga. Comp. R. & Regs. 290-9-12-.01.
30 Brown v. Belinfante, 557 S.E.2d 399, 403 (Ga. Ct. App. 2001) (citations and
punctuation omitted). In addition to the violation of a statute or ordinance, “[t]he
violation of a regulation . . . can likewise establish that a defendant breached a
duty owed to a plaintiff as a matter of law” and, thus, be negligence per se.
McLain v. Mariner Health Care, Inc., 631 S.E.2d 435, 437 (Ga. Ct. App. 2006)
(citations omitted).
An examination of the purpose of the regulation found in 290-9-12-.09(8)
leads us to conclude that the regulation was intended for licensing and inspection
purposes and not for the creation of a standard of conduct to protect individuals,
like plaintiffs, in a narcotic treatment program. The regulation is found in Chapter
290-9-12 of the Georgia Administrative Code, which is titled “Rules and
Regulations for Narcotic Treatment Programs.” We need not look beyond the
plain language of that chapter to decipher its purpose: “The purpose of these rules
is to provide for the licensing and inspection of narcotic treatment programs.” Ga.
Comp. R. & Regs. 290-9-12-.02. We decline to accept plaintiffs’ invitation to
impute another purpose for the regulation. We conclude that the regulation did
not prescribe the standard of conduct Grady had to adhere to in determining
31 whether Kimbrell was qualified for the substance abuse counselor position and
thus eligible for employment.33
Our conclusion is similar to that drawn by the court in Brown. In Brown, a
patient attempted to charge a dentist with negligence per se for violation of a
regulation promulgated by the Georgia Board of Dentistry concerning licensing
and discipline for engagement in “unprofessional conduct.” 557 S.E.2d at 403.
The court concluded that while the actions of the dentist may have been
unprofessional, “that is a question for the Board, not the courts.” Id. The court
continued, “[a]lthough the rule serves to regulate the dental profession, it does not
establish a standard of conduct, the violation of which creates civil liability against
the dentist in favor of a patient.” Id.
We need not address whether the defendants breached the prescriptions
found in 290-9-12-.09(8), nor need we consider the issue of causation—whether
the breach caused the injuries plaintiffs sustained. The regulation provides a
standard to guide the Georgia licensing authority and not a standard of conduct the
breach of which would render an employer negligent per se. Accordingly, the
33 Appellants also contend that regulatory prescriptions found in Chapter 290-4-12, titled “Narcotic Treatment Programs,” provide a relevant standard of conduct for a negligence per se analysis. But as with Chapter 290-9-12, the purpose of Chapter 290-4-12 is “to provide for the licensing and inspection of narcotic treatment programs.” Ga. Comp. R. & Regs. 290-4-12-.02. We thus reject the adoption of such regulations as a standard of conduct in this scenario.
32 district court did not err in rejecting plaintiffs’ claim that Kimbrell’s hiring
constituted negligence per se.
III.
On June 22, 2006, after the district court had entered its May 3, 2006 order
dismissing several claims from the complaint,34 plaintiffs’ counsel, Matthew C.
Billips of Miller, Billips & Ates, moved the district court for an order requiring
Hollowell, Foster & Gepp, counsel for Grady and the individual defendants
(except Kimbrell), to show cause why they should not be disqualified from
simultaneous representation of Grady and the individual defendants. Billips
represented that there existed “an ‘extraordinary’ conflict of interest between some
of the individual defendants and Grady.” Order 2, Oct. 19, 2006. Billips proposed
that the court disqualify the law firm from simultaneously representing Grady and
the individual defendants unless Grady “provided separate and independent
counsel to advise the individual . . . defendants on the potential conflict.” Id. at 4.
On July 18, 2006, four days after the court, acting on defense counsel’s
motions for reconsideration of the May 3 order, entered an order dismissing all
34 On May 3, the court dismissed Count 1 as to Reed, Rohr and Upshaw, Count 3 in its entirety, Count 2 as to Grady and Rohr, and Count 6 as to Grady, Reed, Upshaw, and Rohr. The claims remaining (aside from those against Kimbrell) were against Stovall in Count 1, Reed, Upshaw, and Stovall in Count 2, Grady and the individual defendants in Counts 4 and 5, and Stovall in Count 6. See supra part I.C.
33 claims against except those pending against Grady and the individual defendants
in Counts 4 and 5, Randy C. Gepp, on behalf of Hollowell, Foster & Gepp, sent
Billips a letter notifying him that his June 22 motion was frivolous and that
sanctions would be sought under Federal Rule of Civil Procedure 11 if he did not
withdraw the motion within 21 days. Id. at 3. Billips did not withdraw the
motion. On August 17, the court heard the motion, and on August 21, entered an
order denying it. The court found “the Motion to be totally without merit and
unsupported by any current case law or the extension of any case law.” Order 2,
Aug. 21, 2006. In addition, the court found “the Motion to be . . . filed for the
purpose of harassment.” Id. Based on those findings, the court ordered that
“Plaintiffs respond to Defendants’ Motion for Sanctions so that the Court may
consider further action in this matter.” Id.
On October 19, 2006, the district court considered plaintiffs’ response to the
motion for sanctions, adhered to its August 21 ruling that the motion was frivolous
and filed for the purpose of harassment, and ordered Billips and his law firm to
pay Grady the attorney’s fees it incurred, $8,240, in defending against Billips’s
motion. Order 7–8, 11, Oct. 19, 2006. Billips and his firm now appeal the court’s
decision. We review the decision for abuse of discretion. Cooter & Gell v.
34 Hartmarx Corp., 496 U.S. 384, 404, 110 S. Ct. 2447, 2460, 110 L. Ed. 2d 359
(1990).
We find no abuse of discretion here. As the district court correctly
observed, Billips, in prosecuting his motion, provided no legal authority for the
position he was taking. The court further observed that
a reasonable and responsible attorney in Mr. Billips’ position would have known that: (1) his demand that Grady provide at its expense independent counsel to advise each of the individual Defendants on the potential for a conflict of interest was not supported by the clear standards of the Georgia Rules of Professional Conduct; (2) Mr. Gepp had complied with the Georgia Rules of Professional Conduct by appropriately advising his clients and obtaining conflict waiver letters; (3) the Plaintiffs had no standing to seek Hollowell, Foster & Gepp’s disqualification unless they could show a violation of the rules sufficiently severe to call in question the fair and efficient administration of justice. The possibility of delay or a later claim of inadequate representation due to a conflict do not come close to meeting this standard. At this point, Mr. Billips should have withdrawn the motion. If he had done so, the matter would have ended right there for everyone concerned. By not doing so, and by stubbornly and recklessly refusing to back down . . . Billips continued his campaign of vilification against the Grady defendants.
Order 7–8, Oct. 19, 2006. The court’s finding that a reasonable attorney would
not have represented, as Billips did, that the motion he filed satisfied the
requirements of Rule 11(b)(1), (2) and (3) is unassailable.35
35 In filing the motion, Billips certified that
35 AFFIRMED.
to the best of [his] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the . . . legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishment of new law; (3) the factual contentions have evidentiary support . . . .
Fed. R. Civ. P. 11(b)(1), (2), (3). In assessing an attorney’s compliance with the rule, we employ an objective standard. Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir. 1996).