[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11184 MAY 17, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 06-01328-CV-CAP-1
H&R BLOCK EASTERN ENTERPRISES, INC.,
Plaintiff
Counter-Defendant
Appellant
Cross-Appellee,
versus
VICKI D. MORRIS,
Defendant
Counter-Claimant
Appellee
Cross-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(May 17, 2010)
Before BLACK, MARCUS and HIGGINBOTHAM,* Circuit Judges.
PER CURIAM:
*
Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
This case arises from an employment agreement entered into between Vicki
D. Morris, a tax professional, and H&R Block Eastern Enterprises, Inc. (Block),
her former employer. The employment agreement included a non-competition
covenant and a non-solicitation covenant. After Block informed her she was
ineligible for rehire, Morris started Dreams Tax Service, Inc. (Dreams) and
personally prepared returns for 47 former Block clients. Block filed suit against
Morris, claiming she violated the terms of her employment agreement by soliciting
Block’s clients, providing tax-preparation services to Block’s former clients, and
soliciting and hiring Block’s employees.
The district court denied Block’s motion for summary judgment for breach
of the employment agreement and held the non-competition covenant in the
agreement was unenforceable under Georgia public policy, thus rendering the
entire agreement unenforceable. Because there were no further issues to resolve
with regard to Block’s breach of contract claim, the district court entered judgment
in favor of Morris. The district court granted Block’s motion for summary
judgment on Morris’s counterclaims, which alleged (1) Block wrongfully
terminated her, (2) Block interfered with her business relations, (3) Block breached
its implied contract to hire her, (4) Block discriminated against her in violation of
Title VII, and (5) Block defamed her. On appeal, Block contends the district court
2
erred by concluding the restrictive covenants in the employment agreement were
unenforceable under Georgia law. Morris, proceeding pro se, cross-appeals the
district court’s grant of summary judgment in favor of Block on her
counterclaims.1
I. BACKGROUND
Block provides tax preparation and related services for individuals and
companies nationwide. Block employed Morris as a seasonal tax preparer in its
office at 5195 Old National Highway, College Park, Georgia, for the 2000-2005
tax seasons. Each of Morris’s periods of employment was governed by a separate
employment agreement. On or about November 15, 2004, Morris entered into an
employment agreement (Agreement) with Block for the 2005 tax season. The
Agreement contained restrictive covenants, including a non-competition covenant
and a non-solicitation covenant.
Section 11(a) of the Agreement sets out the non-competition covenant,
which states, for a period of two years following the expiration of the Agreement,
or the resignation or termination of the employee:
Associate shall not, directly or indirectly, provide any of the following
services to any of the Company’s Clients: (i) prepare tax returns,
(ii) file tax returns electronically, or (iii) provide any alternative or
1
We construe pro se pleadings liberally. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th
Cir. 2007).
3
additional service or product that Associate provided or offered as an
employee of the Company. . . . The restrictions contained in Section
11(a) are limited to (i) Associate’s district of employment, and (ii) a
twenty-five (25) mile radius as measured from the office to which
Associate is assigned . . . .
Agreement, § 11(a). The Agreement defines “Company Clients” as “(i) every
person or entity with whom Associate had contact because Associate prepared or
electronically transmitted their federal or state tax return during the term of this
Agreement, and (ii) every person or entity with whom Associate had contact
because Associate provided or offered additional or alternative services or products
to such person or entity as an employee of the Company during the term of this
Agreement.” Agreement, § 11(a).
Section 11(b) of the Agreement sets out the non-solicitation covenant, which
states, for a period of two years following the expiration of the Agreement, or the
resignation or termination of the employee:
Associate shall not, directly or indirectly, solicit or attempt to solicit
any of the Company’s clients for the purpose of providing (i) tax
return preparation, (ii) electronic filing of tax returns, or (iii) any
alternative or additional service or product that Associate provided or
offered as an employee of Company.
Agreement, § 11(b).
On or after October 31, 2005, Morris received a generic letter from Block
addressed “Dear Associate.” The letter welcomed Morris back to Block and
4
invited her to attend an orientation for the 2006 tax season. On November 16,
2005, Morris attempted to attend the orientation but was prevented from doing so
by Brenda Shirley, one of Block’s office managers. Morris claims Shirley loudly
berated her before escorting Morris out of the building. The next day, Morris
received a phone call from KaSondra Smith, the Block manager in charge of the
district in which Morris had worked. Smith informed Morris that Block was
performing an internal audit of tax returns prepared by Morris. Morris
subsequently received a letter from Smith notifying Morris she was not eligible for
rehire until the audit process was complete. Finally, in December of 2005, Block
informed Morris she was ineligible for rehire.
In January of 2006, Morris started Dreams. Dreams’ office was located
approximately 13.3 miles from the Block office. During the 2006 tax season,
Morris’s family members, friends, and former Block clients came to Dreams to
have their tax returns prepared. Dreams prepared tax returns for 87 former Block
clients, although Morris personally prepared only 47 of those returns. Morris
claims she did not solicit the business of the former Block clients, directly or
indirectly.
On June 2, 2006, Block filed suit against Morris, claiming, inter alia, she
violated the terms of her employment agreement by (1) soliciting Block’s clients
5
for the purpose of providing tax-preparation services, (2) providing tax-preparation
services for former Block clients, and (3) soliciting and hiring Block’s employees.
Block sought damages, injunctive relief, interest, costs, and fees.
In response, Morris filed an answer and a counterclaim. In her counterclaim,
Morris alleged (1) Block wrongfully terminated her, (2) Block interfered with her
business relations, (3) Block breached its implied contract to hire her, (4) Block
discriminated against her in violation of Title VII, and (5) Block defamed her.
On November 7, 2006, Block filed a motion for a preliminary injunction.
After a hearing on December 22, the district court granted in part and denied in
part Block’s motion for a preliminary injunction. Ruling the non-competition and
non-solicitation covenants in Morris’s employment contract were reasonably
limited, the district court enjoined Morris from violating them.
On July 7, 2008, Block filed motions for summary judgment on its claims
and on Morris’s counterclaims. On January 6, 2009, the district court granted
summary judgment in favor of Block on Morris’s counterclaims, but denied
Block’s motion for summary judgment on its breach of contract claim. The district
court decided the non-competition covenant was unenforceable because it
prevented Morris from accepting unsolicited business from former clients, and thus
invalidated the non-solicitation covenant as well. In light of those rulings, the
6
district court entered summary judgment in favor of Morris, but granted summary
judgment to Block on all of Morris’s counterclaims. This appeal and cross-appeal
ensued.
II. STANDARD OF REVIEW
The denial of a motion for summary judgment by a district court is reviewed
de novo, applying the same standards the district court used. Ortega v. Bibb
County Sch. Dist., 397 F.3d 1321, 1324 (11th Cir. 2005). Summary judgment is
proper when “the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).
The moving party bears the initial burden of showing there is no genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 320-323, 106 S. Ct.
2548, 2553 (1986). Once the moving party has met its burden, the burden shifts to
the non-moving party to “designate specific facts showing that there is a genuine
issue for trial.” Id. at 324 (quotations omitted).
III. DISCUSSION
A. The Restrictive Covenants
A restrictive covenant in an employment contract, whether a non-solicitation
covenant or a non-competition covenant, is considered to be in partial restraint of
7
trade and will be enforced only if it (1) is reasonable, (2) is supported by
consideration, (3) is reasonably necessary to protect the restraining party’s interest,
and (4) does not unduly prejudice the interests of the public. W.R. Grace & Co. v.
Mouyal, 422 S.E.2d 529, 531 (Ga. 1992). Georgia courts apply strict scrutiny to
restrictive covenants in employment contracts, and the reasonableness of the
restraint is a question of law for determination by the court, “which considers the
nature and extent of the trade or business, the situation of the parties, and all other
circumstances.” Habif, Arogeti &Wynne, P.C. v. Baggett, 498 S.E.2d 346, 349-50
(Ga. Ct. App. 1998) (quotations omitted). “A three-element test of duration,
territorial coverage, and scope of activity has evolved as a helpful tool in
examining the reasonableness of the particular factual setting to which it is
applied.” Id. at 351 (quotations omitted).
A restrictive covenant in an employment contract cannot be “blue-penciled”
if it is found to be too broad. Id. at 349. Thus, if one non-competition or non-
solicitation covenant in an employment agreement is too broad, any other
covenants restricting competition or solicitation in the agreement will not be
enforced either. Advance Tech. Consultants, Inc. v. Roadtrac, LLC, 551 S.E.2d
735, 737 (Ga. Ct. App. 2001).2
2
This rule does not apply to non-solicitation of employees provisions. See, e.g., Mathis
v. Orkin Exterminating Co., 562 S.E.2d 213, 214 (Ga. Ct. App. 2002).
8
1. The Non-Competition Covenant
The district court determined the non-competition covenant was
unenforceable because it prevented Morris from accepting unsolicited business
from her former Block clients. In reaching this decision, the district court applied
rulings involving non-solicitation covenants rather than non-competition
covenants.3
On appeal, Block argues the district court erroneously concluded the non-
competition covenant was invalid. Block contends the non-competition covenant
is enforceable when evaluated under the proper standard and considering the
interplay of provisions in the Agreement. In response, Morris argues the provision
is unreasonable in geographic scope because it has two geographic restrictions–a
district restriction and a 25-mile radius restriction. Morris also asserts the non-
competition covenant contravenes public policy by limiting the number of
businesses providing tax preparation and filing services.
3
The district court relied on Palmer & Cay, Inc. v. Marsh & McLennan Cos., 404 F.3d
1297, 1306 (11th Cir. 2005), for the proposition that non-competition agreements that prohibit
the employee from accepting unsolicited business from former clients are unreasonable. Palmer
& Cay concerned a non-solicitation covenant, not a non-competition covenant, and thus applied
Georgia non-solicitation law to the provision at issue. Moreover, Palmer & Cay relied on two
Georgia cases, Waldeck v. Curtis 1000, Inc., 583 S.E.2d 266 (Ga. Ct. App. 2003), and Singer v.
Habif, Arogeti, and Wynne, P.C., 297 S.E.2d 473 (Ga. 1982), both of which concerned non-
solicitation covenants, not non-competition covenants.
9
A non-competition covenant, “which is designed primarily to protect the
employer’s ‘investment of time and money in developing the employee’s skills,’
prohibits the employee from performing competitive activities in a certain
geographic area for a limited time.” Baggett, 498 S.E.2d at 353 (quoting Pierce v.
Indus. Boiler Co., 315 S.E.2d 423, 24 (Ga. 1984)). A non-competition covenant
“may preclude the employee from accepting related business (whether solicited or
not) from any clients (whether previously contacted by him or not) if the employee
is officed in, or is to perform the restricted activities in, the forbidden territory.”4
Id.5
A restrictive covenant subject to strict scrutiny may apply to the territory in
which the employee served. Id. at 352. A non-competition covenant must also
4
The covenant at issue in Baggett was not part of an employment contract, and was
given intermediate scrutiny. Baggett, 498 S.E.2d at 350. However, Baggett’s description of a
covenant not to compete concerned restrictive covenants in general and was not affected by the
lesser degree of scrutiny.
5
Likewise, in Chaichimansour v. Pets Are People Too, No. 2, Inc., 485 S.E.2d 248, 250
(Ga. Ct. App. 1997), the Georgia Court of Appeals held valid a covenant not to compete
precluding the employee from working as a veterinarian in a limited territory, even though such
a restriction necessarily prevented the employee from accepting unsolicited business. In
Marcoin, Inc. v. Waldron, the Georgia Supreme Court stated in dicta, “[i]f an employer wishes
to prevent a former employee from [a]ccepting business from former clients of the employer
such language can be made part of the covenant.” 259 S.E.2d 433, 434 (Ga. 1979). In
Dougherty, McKinnon & Luby, P.C. v. Greenwald, Denzik & Davis, P.C., 447 S.E.2d 94, 96
(Ga. Ct. App. 1994), however, the Georgia Court of Appeals ruled a provision in an employment
agreement was unenforceable because it prohibited “acceptance of any work from [former]
clients regardless of who initiated the contact.” (emphasis omitted). This case is distinguishable
because the agreement at issue in Dougherty did not contain any geographic limitation, and it
applied to all of the employer’s clients, regardless of whether they had a business relationship
with the employee. Id. at 96-97.
10
“contain a territorial limitation sufficient to ‘give the employee notice of what
constitutes a violation of the restrictive covenant [by] specify[ing] with
particularity the territory in which the employee[s’ conduct] is restricted.’”
Paramount Tax & Accounting, LLC v. H & R Block Eastern Enters., Inc., 683
S.E.2d 141, 146 (Ga. Ct. App. 2009) (emphasis omitted) (alterations in original).
To determine whether a non-competition covenant satisfies this requirement, “a
court must examine the ‘interplay between the scope of the prohibited behavior and
the territorial restriction.’” Id. For example, “[a] broad territorial limitation may be
reasonable if the scope of the prohibited behavior is sufficiently narrow.” Beacon
Sec. Tech. Inc. v. Beasley, 648 S.E.2d 440, 442 (Ga. Ct. App. 2007).
Applying the three-element test of duration, territorial coverage, and scope,
we conclude the Agreement’s non-competition covenant is reasonable, considering
the nature and extent of the business, the situation of the parties, and other relevant
circumstances. Baggett, 498 S.E.2d at 350-51. With respect to duration, the two-
year duration of the non-competition clause is within the time frame permitted by
law. See id. at 351 (“A two-year duration is often considered reasonable even
under the strict scrutiny for employment covenants not to compete.”); see also
Smith v. HBT, Inc., 445 S.E.2d 315, 318 (Ga. Ct. App. 1994) (concluding a five-
year covenant not to compete was reasonable with respect to duration).
11
With regard to territorial coverage, the non-competition covenant was
geographically limited to (1) Morris’s district of employment and (2) a 25-mile
radius from the Block office where Morris worked. Agreement, § 11(a). The
restricted geographic area was illustrated by a map accompanying the Agreement,
and was thus identified and disclosed to Morris at the time she signed the contract.
Paramount, 683 S.E.2d at 146 (requiring a sufficiently specific territorial limitation
to give the employee notice of what constitutes a violation of the restrictive
covenant). Although Morris contends the geographic restrictions are unreasonable,
the district court found “Block [] presented evidence showing that Morris serviced
clients from communities in the extreme outer-edges of the twenty-five mile
territor[y].” Moreover, the geographic restrictions are reasonable considering the
“interplay” between the territorial restriction and the scope of prohibited
behavior–the covenant applies only to clients served by Morris, and only covers
territory in which she actually worked.6 Accordingly, in these circumstances, the
non-competition covenant’s territorial limitation is reasonable.
6
This situation is distinguishable from Paramount, where the Georgia Court of Appeals
concluded the non-competition covenant in the employment contract was unenforceable as a
matter of law. 683 S.E.2d at 147. In Paramount, the restriction was not limited to clients served
by the employee, and it failed to limit the conduct to a specific geographic area. See id. at 146
(noting the language prevented the employee from accepting employment anywhere in the
United States “if her prospective employer engages in the preparation and electronic filing of tax
returns and also either has an office or advertises in, or within ten miles of, Block’s Gainesville
District”).
12
Finally, the scope of prohibited activities is sufficiently narrow. A non-
competition covenant “must balance an employee’s right to earn a living without
unreasonable restrictions, and an employer’s right to protection from the former
employee’s possible unfair appropriation of contacts developed while working for
the employer.” Augusta Eye Ctr., P.C. v. Duplessie, 506 S.E.2d 242, 245 (Ga. Ct.
App. 1998). Here, the non-competition covenant prohibited Morris from preparing
tax returns or providing any other service Morris “provided or offered as an
employee of the Company” to any of the Company’s Clients. Agreement, § 11(a).
The Agreement limited Company Clients to those persons or entities “with whom
[Morris] had contact” by providing services as an employee of the Company. Id.
This covenant does not prohibit Morris from preparing taxes or providing a related
service to the general public, or Block clients generally. Morris is only prohibited
from serving those clients she serviced while employed at Block during the 2005
tax season. The covenant appropriately balances Morris’s right to earn a living
with Block’s right to protect its customer relationships and Block’s investment in
developing Morris’s skills.
The non-competition covenant is limited to a specific geographic area, the
types of activities performed by Morris at Block, the customers serviced by Morris
at Block, and a two-year duration. After considering the nature of the tax
13
preparation business, the situation of the parties, and after applying the three-
element analysis, we conclude this non-competition covenant is reasonable under
Georgia law.7 The district court erred by relying on non-solicitation case law to
conclude otherwise.
2. The Non-Solicitation Covenant
In light of its ruling invalidating the non-competition covenant, the district
court refused to enforce the non-solicitation provision. See Advance Tech.
Consultants, Inc., 551 S.E.2d at 737 (stating if one non-competition or non-
solicitation of clients covenant in an employment agreement is too broad, any other
covenants restricting competition or solicitation in the agreement will not be
enforced either). Because the non-competition covenant is enforceable, however,
the non-solicitation covenant must be evaluated on its own merits. See Baggett,
498 S.E.2d at 354.
On appeal, Block argues the non-solicitation clause is enforceable because it
is reasonably limited with respect to duration, territory, and activity covered.
7
Moreover, the Agreement’s non-competition covenant does not contravene Georgia
public policy. See, e.g., Waldeck, 583 S.E.2d at 268 (concluding a non-solicitation covenant was
unreasonable because it overprotects the employer’s interests and “unreasonably impacts on [the
employee] and on the public’s ability to choose the business it prefers”). The covenant at issue
will limit Block’s clients (that Morris served in 2005) from choosing to use Morris’s services
within her old district or a 25-mile radius from her old office. However, Georgia courts
specifically permit non-competition covenants that prohibit an employee from accepting
unsolicited business from her former employer’s clients if the restriction is limited to the
territory in which the employee served. Baggett, 489 S.E.2d at 351-52.
14
Morris contends Block has not produced any evidence she violated the non-
solicitation clause. We only address the validity of the non-solicitation clause to
determine whether paragraph 11 of the Agreement is enforceable.8
A non-solicitation covenant, “which is designed primarily to protect the
employer’s investment of time and money in developing customer relationships,
prohibits an employee from soliciting the employer’s clients for a limited time and
only requires a territorial restriction if the forbidden clients include the clients with
whom the employee did not have a relationship prior to his departure.” Baggett,
498 S.E.2d at 353. A non-solicitation covenant “may not preclude the employee
from accepting unsolicited business” from the employer’s clients. Id.
The Agreement included a non-solicitation covenant with a two-year
duration which prevented Morris from “directly or indirectly” soliciting or
attempting to solicit any Company Clients for the purpose of offering, among other
things, tax preparation services. Agreement, § 11(b). Company Clients are limited
to those persons or entities “with whom [Morris] had contact” by providing
services as an employee of the Company. Agreement, § 11(a).
This non-solicitation clause is enforceable because it is reasonable with
respect to duration and activity covered, and it does not prohibit Morris from
8
The issue of whether Morris breached the non-solicitation clause is not before this
Court.
15
accepting unsolicited business. First, the two-year duration is reasonable under
Georgia law. See Palmer & Cay of Ga., Inc. v. Lockton Cos., 629 S.E.2d 800, 804
(Ga. 2006) (ruling a two-year restriction was reasonable). Second, the covenant at
issue only applies to Block’s clients whom Morris served during the 2005 tax
season, so a geographic restriction is unnecessary. See W.R. Grace & Co., 422
S.E.2d at 533 (if a non-solicitation covenant covers only the employer’s customers
“which the employee contacted during h[er] tenure with the employer, there is no
need for a territorial restriction expressed in geographic terms”). Finally, the non-
solicitation covenant is enforceable because it only prohibits Morris from initiating
contact with the employer’s clients for the purpose of providing the services that
the employee performed for the employer. Baggett, 231 S.E.2d at 354-55.
Accordingly, we conclude this non-solicitation covenant is reasonable under
Georgia law.
In light of its ruling invalidating the non-competition covenant, the district
court refused to enforce the non-solicitation provision and entered judgment in
favor of Morris. This was error. Because both the non-competition and non-
solicitation covenants are reasonable, the restrictive covenants in paragraph 11 of
the Agreement are enforceable.
16
The district court found that Morris personally prepared tax returns for 47
former “Block clients” during the 2006 tax season. Morris concedes she accepted
business from between 40 and 50 “Block clients.” Morris provided tax services to
those clients at Dreams, which is located less than 25 miles from Morris’s former
Block office. Thus, no genuine issues of material fact exist regarding Morris’s
violation of the non-competition covenant.
B. Morris’s Counter-claims
1. Wrongful Termination
On cross appeal, Morris argues the district court erred in ruling Morris was
not wrongfully terminated. She points to an October 31, 2005, letter from Block
welcoming her back as evidence of an employment contract, and claims she
suffered damages from Block’s wrongful termination of her when a Block
employee, Brenda Shirley, prevented her from attending a required orientation. In
response, Block argues it never hired Morris for the 2006 tax season, and even if
Block did hire Morris, her employment would have been at-will, permitting Block
to terminate her employment for any reason.
Employment contracts are enforceable under Georgia law only if they
include “[t]he nature and character of the services to be performed, the place of
employment[,] and the amount of compensation to be paid.” Farr v. Barnes
17
Freight Lines, Inc., 101 S.E.2d 906, 907 (Ga. Ct. App. 1958). If any of these
“essential elements” are omitted, “there is no agreement.” Id. In the absence of an
agreement, Georgia follows an “at-will” employment doctrine, which permits the
employer to discharge the employee for any reason whatsoever, “without acquiring
a cause of action for wrongful termination.” Nida v. Echols, 31 F. Supp. 2d 1358,
1376 (N.D. Ga. 1998) (citing O.C.G.A. § 34-7-1).
The district court did not err by granting summary judgment because, even if
Morris was hired for the 2006 tax season, no enforceable employment agreement
governed the relationship. The October 31 letter does not include all of the required
terms; specifically, the letter does not include the place of employment, the amount
of compensation to be paid (or a method of calculating compensation), or the
services to be performed, except very generally. See 10/31/05 Letter, R2-76-8,
Ex.2. Moreover, the letter does not even address Morris by name—rather, it states
“Dear Associate.” Id. Accordingly, the letter did not create an enforceable
contract, and because Georgia is an “at-will” state, Morris cannot assert a claim for
wrongful termination.
2. Breach of an Implied Contract
As an alternative to her wrongful termination claim, Morris argues Block
breached its implied contract to hire her by failing to employ her for the 2006 tax
18
season. She points to the October 31 letter as evidence of the implied contract. In
response, Block argues because the October 31 letter does not contain the required
elements, it cannot create an implied contract.
Implied contracts are not exempt from the rule requiring the identification of
the services to be performed, the place of employment, and compensation. See,
e.g., Burgess v. Decatur Fed. Sav. Assoc., 345 S.E.2d 45, 46 (Ga. Ct. App. 1986)
(ruling, even if an implied contract had been created based on an employment
manual, “it was clearly terminable at will because it failed to specify a period of
employment”). Assuming, arguendo, the October 31 letter created an implied
contract, “it was clearly terminable at will because it failed to specify a period of
employment.” Id. Accordingly, Morris was terminable at will and has no cause of
action for Block’s decision to no longer employ her.
3. Tortious Interference with Business Relations
Morris next argues Block employee Brenda Shirley prevented her from
attending the orientation, and thus tortiously interfered with Morris and Block’s
business relations. The district court correctly granted summary judgment on this
claim because it is well-established under Georgia law a party cannot tortiously
interfere with its own business relationships. See Taylor v. Calvary Baptist
Temple, 630 S.E.2d 604, 606 (Ga. Ct. App. 2006).
19
4. Title VII
Morris contends her Title VII claim is not time-barred because she filed her
charge of discrimination with the EEOC within 180 days of the last employment
action. She points to the “Dates Discrimination Took Place” in her right to sue
letter, which listed June 14, 2006, as the last date of discriminatory conduct
committed by Block.
Before suing under Title VII, a plaintiff must first exhaust her administrative
remedies. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001). To
do so, a plaintiff must file a timely charge of discrimination with the EEOC within
180 days of the last discriminatory act. Id. Morris last worked in Block’s offices
in April or May of 2005, and she did not file an EEOC charge until November 16,
2006. Although Morris herself listed June 14, 2006, as the latest date of
discrimination, she offers no evidence she was in a position to suffer
discrimination by Block on that date. Accordingly, Morris failed to timely exhaust
her administrative remedies.
5. Defamation
Finally, Morris asserts the district court erred by ruling Block did not defame
her because Block employees Brenda Shirley and KaSondra Smith communicated
defamatory statements about Morris to third parties that harmed her professional
20
reputation. Morris alleges the following statements were defamatory: (1) Shirley’s
oral statement to new tax preparers that Morris was an “evil witch who didn’t
know how to do taxes,” (2) Shirley’s insulting statement(s) when Morris attempted
to attend Block’s orientation on November 16, 2005, and (3) a written statement in
a letter sent to Catherine Watson, a Block employee, “accusing Morris of taking
improper tax deductions.” In response, Block argues none of these statements
support a claim for defamation because Morris has not produced any evidence
showing Block directly or expressly authorized any of its employees to slander
Morris, and the written statement was not published and was privileged.
In Georgia, a statement generally may support a claim for defamation only if
it is false, published, and unprivileged, among other requirements. See Saye v.
Deloitte & Touche, LLP, 670 S.E.2d 818, 821 (Ga. Ct. App. 2008). Statements
about employees are afforded additional protection. First, an employer is not liable
for a slanderous statement made by its employee unless the employee “was
expressly directed or authorized to slander the plaintiff.” Lepard v. Robb, 410
S.E.2d 160, 162 (Ga. Ct. App. 1991). An employer, can, however, be held liable if
an agent libels another while acting within the scope of his employment. Garren v.
Southland Corp., 228 S.E.2d 870, 871 (Ga. 1976). Second, a statement made “in
good faith in the performance of a legal or moral private duty” is privileged. See
21
O.C.G.A. § 51-5-7; see also Lewis v. Meredith Corp., 667 S.E.2d 716, 719 (Ga. Ct.
App. 2008) (“[S]tatements made during private, intra-corporate investigations
conducted in good faith performance of a private duty are privileged and are not
‘published’ for purposes of a defamation claim.”). Third, “a communication made
by one corporate agent to another is not publication in the legal sense.” Kitchen
Hardware, Ltd. v. Kuehne & Nagel, Inc., 421 S.E.2d 550, 553 (Ga. Ct. App. 1992).
Block cannot be held liable for the allegedly slanderous statements of its
employees unless it affirmatively appears Block expressly directed or authorized
its employees to slander Morris. See Lepard, 410 S.E.2d at 162. Morris has
offered no evidence suggesting Block directed Shirley or any other employee to
slander Morris, so no vicarious liability can be assigned to Block for the alleged
oral statements. See Fuhrman v. EDS Nanston, Inc., 483 S.E.2d 648, 649 (Ga. Ct.
App. 1997). With regard to the alleged defamatory written statement, the letter
was not “published” because it was not sent to a third party, and an intra-corporate
communication to someone who clearly has reason to receive the information does
not constitute a publication. See Kitchen Hardware, 421 S.E.2d at 553.
IV. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s grant of
summary judgment in favor of Block on Morris’s counterclaims. We REVERSE
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the district court’s entry of judgment in favor of Morris and REMAND with
instructions to enter summary judgment in favor of Block on the breach of contract
claim.
AFFIRMED in part, REVERSED and REMANDED in part.
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