Doe v. Fulton-DeKalb Hospital Authority

[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

A.

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 fun 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 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

B.

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.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 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

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 (Ga. Ct. App. 1979); Sims
v. Bryan, 230 S.E.2d 39 (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
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.

1.

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’

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

27
Georgia has codified some features of the common law dealing with negligent hiring.
See O.C.G.A. 34-7-20.

24
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 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

knowledge of incompetency.” O.C.G.A. § 34-7-20.28 “The appellate courts [of

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).

25
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)).

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

26
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 these potential red flags,

the investigators did not find any evidence of criminal activity. Id. at 608.

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

27
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).

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

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.

28
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

2.

Plaintiffs further assert that the defendants were negligent per se because

they failed to “maintain written and verified records” for Kimbrell, including a

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.
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.

29
“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.”

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).

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
 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

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

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.

31
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

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.

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.

32
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

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,

33
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.

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

34
 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

AFFIRMED.

35
In filing the motion, Billips certified that

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).

35