MCCLENDON v. HARPER Et Al.

THIRD DIVISION
GOBEIL, J.,
COOMER and HODGES, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

March 15, 2019

In the Court of Appeals of Georgia
A18A2075. MCCLENDON v. HARPER et al.

HODGES, Judge.

Glen McClendon sued his former employer, the Metropolitan Atlanta Rapid

Transit Authority, and four MARTA employees (the “Individual Defendants”) based

on their alleged involvement in events leading to his arrest for theft by taking of a

company van and his subsequent termination. McClendon asserts claims for false

imprisonment, malicious arrest, and intentional infliction of emotional distress against

the Individual Defendants. He also asserts a claim against MARTA for negligent

hiring, training, and supervision as well as for vicarious liability for the torts of the

Individual Defendants. He seeks punitive damages from all defendants. The trial court

granted summary judgment in favor of all defendants as to all of McClendon’s claims.

McClendon appeals, and, for the reasons explained below, we affirm.
 Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law[.]” OCGA § 9-11-56 (c).

[A] defendant who will not bear the burden of proof at trial need not
affirmatively disprove the nonmoving party’s case, but may point out by
reference to the evidence in the record that there is an absence of
evidence to support any essential element of the nonmoving party’s
case.

(Citation and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (697

SE2d 779) (2010).

Viewed in this light, the record shows that, in January 2014, McClendon was

a MARTA communications technician with over 20 years of service who was

assigned to work on projects on the east line. Calvin Harper was another technician,

and Anthony Pines, Derek Terry, and Arnold Campbell were supervisors in

McClendon’s department. In connection with his work on the east line, McClendon

regularly drove MARTA vehicle 15652 (“the van”). Under MARTA official policy,

department vehicles must be checked into a facility called “the annex” when not in

use for department business.

2
 On January 22, McClendon worked on the east line inspecting emergency

phone lines until about 4:00 p.m. and then checked the van into the annex. He drove

his personal vehicle to the Candler Park station, where he worked several hours

overtime on a special project. Harper, who was then assigned to the south line, had

previously been assigned to the east line, and he also had a key to the east line van.

After McClendon checked the van into the annex on January 22, Harper took the van

from the annex and parked it at the Kensington station on the east line, planning to

retrieve it the next morning. McClendon deposed that, against regulations, Harper

often used the van after hours for personal purposes and left it parked at a station,

rather than at the annex. In his deposition, Harper conceded that he was written up

many times for leaving a department van overnight at a location other than the annex

in violation of department policies.

After working at the Candler Park station on the evening of January 22,

McClendon drove his personal vehicle to the Kensington station to clock out, arriving

at approximately 9:45 p.m., and found the van in the parking lot there. Due to the late

hour, McClendon did not call his supervisor about the location of the van. He drove

the van from the Kensington station to the Maintenance of Way (“MOW”) facility

near the Avondale station on the east line in preparation for a project scheduled there

3
for the next day. He rode the train back to the Kensington station and went home in

his personal vehicle.

Early on the morning of January 23, Harper went to the Kensington station to

get the van, where he had left it the evening before, unaware that McClendon had

moved it to the MOW facility. Harper called Pines about the missing van. Harper also

called several other technicians to ask if anyone had moved the van, but, because of

personal hostility between him and McClendon, he did not call McClendon to ask

about the van.

After hearing from Harper, Pines testified that he also called the technicians,

asking each, “do you have the van?” According to McClendon, Pines asked him, “Do

you have [the van] at Candler Park?” Since McClendon left the van at the Avondale

station and did not have it at the Candler Park station, he answered, “No.” According

to McClendon, he tried to tell Pines that he left the van at Avondale the night before,

but Pines hung up on him.

Meanwhile, Harper went to the office to meet with Pines, who told him that all

of the technicians had been called and no one seemed to know the location of the van.

Pines deposed that Harper told him that he was going to report the van missing to the

MARTA police although, according to Pines, that was not the ordinary practice.

4
Harper called the MARTA police at about 9:00 a.m. on January 23. According to the

MARTA detective who first interviewed Harper at about 9:45 a.m., McClendon

became the focus of the investigation because Harper told the detective that he

suspected McClendon had taken the van. Detectives reviewed station video, the use

logs of McClendon’s employee Breeze card, which he used to travel on the train, and

his employee proximity card, which he used to enter employees-only areas of the

stations.

The station video and card data showed that at about 9:45 p.m. on January 22,

McClendon left the Kensington station in the van and parked it at the MOW facility

near the Avondale station and then rode the train from there back to the Kensington

station and left in his personal vehicle.

A few hours after Harper’s initial report, Pines called McClendon and asked

him to come in to the office to speak to a detective. McClendon did so after moving

the van from the MOW facility back to the Kensington station. Pines deposed that he

knew where the van was before lunchtime, that he had no evidence that McClendon

stole anything, and that he does not know why the police continued their involvement

after the van was located. According to Harper, he never thought that the van had

5
been stolen but believed, based on what co-workers told him about McClendon’s

tasks the day before, that McClendon had moved the van to the Candler Park station.

After arriving at his office, McClendon went with Pines and Harper to the

MARTA police office, and detectives began questioning him. Fearing that he was

being falsely accused of theft, McClendon stated that he did not want to talk without

a union representative or a lawyer present. A union representative was summoned,

but pursuant to MARTA police rules the detectives did not allow him into the

interrogation room. Harper was also interviewed again.

Based in part on reports from McClendon’s supervisors that his duty shift on

January 22 ended at 6:00 p.m., hours before he moved the van from the Kensington

station to the Avondale station, and that he lacked authority to use MARTA vehicles

when not on duty, a MARTA detective determined that there was probable cause to

arrest McClendon and placed him under arrest, without a warrant, for theft by taking

6
a motor vehicle.1 The detective deposed that the decision to arrest McClendon was

his decision, along with the detective’s supervisor.

According to McClendon, Pines told him privately that he reported the van

missing as a prank or joke on him (McClendon) but that he would not admit that to

the officers because he was not “going to jail for this prank that went bad.”

McClendon’s wife deposed that Pines called her on the day McClendon was arrested

and told her the incident was “a prank gone really bad.” In an affidavit, Pines stated

that he told McClendon’s wife that it appeared that the incident was “a prank that had

gone bad” and that, by saying this, he meant that it appeared that McClendon had

played a prank on Harper by moving the van.

The day after McClendon was arrested, a detective obtained an arrest warrant

for McClendon. As a result of the arrest, McClendon spent several nights in jail

1
Pines, Terry, and Campbell deposed that McClendon was not authorized for
overtime work on January 22 and was therefore not authorized to use the van after his
shift ended at 6:00 that day. McClendon testified that he had clocked out at about
11:00 p.m. and that Terry changed the record to show that McClendon clocked out
at 6:00 p.m. to falsify evidence that he was off duty when he moved the van from the
Kensington station to the MOW facility. McClendon has not produced evidence to
corroborate this accusation and we “will not cull the record in search of error” on his
behalf. (Citation omitted.) Vitner v. Miller, 223 Ga. App. 692, 693 (1) (479 SE2d 1)
(1996). Even if McClendon was not authorized to use the van, the facts do not
establish that he committed a theft of the van simply by moving it from one MARTA
property to another.

7
before he was released on bond. The DeKalb County District Attorney’s office

reviewed the case and decided not to prosecute McClendon and dismissed the charge.

MARTA decided to terminate McClendon for stealing MARTA property, lying

to management, and otherwise violating MARTA’s code of ethics and standards of

conduct. His union negotiated with MARTA, which agreed to allow him to retire in

lieu of termination, conditioned on his agreement to present his notice of retirement

by November 18, 2014 and to refrain from initiating any grievance or legal

proceeding concerning severance of his employment with MARTA. McClendon

submitted his notice to MARTA on that date. He then contacted the benefits provider,

Zenith American Solutions, Inc., and an agent told him that he could take early

retirement immediately or get full retirement with increased benefits if he waited until

2016 to retire. McClendon chose to delay his pension, and, according to him, he

submitted all required documents. Months later, MARTA changed the end of his

employment to termination for cause, because he did not timely apply for retirement

as required by their agreement. According to McClendon, his pension benefit was

greatly reduced as a result.

8
 1. McClendon contends that the trial court erred in granting the defendants’

motion for summary judgment on his claims for false imprisonment and malicious

arrest. We disagree.

Under Georgia law, there are

three different related torts in this area, although the distinctions among
the three are not always clear in our case law: (1) false imprisonment,
which is “unlawful” detention without judicial process, or without the
involvement of a judge at any point (OCGA § 51-7-20[2]); (2) false or
malicious arrest, which is detention “under process of law” (OCGA §
51-7-1[3]); and (3) malicious prosecution, which is detention with
judicial process followed by prosecution (OCGA § 51-7-40). An arrest
“under process of law” is an arrest made pursuant to a warrant and the
key distinction between malicious arrest and false imprisonment under

2
OCGA § 51-7-20 (“False imprisonment is the unlawful detention of the
person of another, for any length of time, whereby such person is deprived of his
personal liberty.”). See also Smith v. Wal-Mart Stores E., 330 Ga. App. 340, 343 (2)
(a) (765 SE2d 518) (2014) (“The essential elements of the cause of action for false
imprisonment are a detention of the person of another for any length of time, and the
unlawfulness of that detention.”) (citation and punctuation omitted).
3
OCGA § 51-7-1 (“An arrest under process of law, without probable cause,
when made maliciously, shall give a right of action to the party arrested.”). See
Garner v. Heilig-Meyers Furniture Co., 240 Ga. App. 780, 781-782 (1) (525 SE2d
145) (1999) (Where there has been an arrest pursuant to a warrant and “after the arrest
the warrant is dismissed or not followed up, the remedy is for malicious arrest.”)
(citation and punctuation omitted).

9
 OCGA §§ 51-7-20 and 51-7-1 is whether the person was detained using
a warrant or not.

Ferrell v. Mikula, 295 Ga. App. 326, 329 (2) (672 SE2d 7) (2008).

(a) False imprisonment.

Where the alleged unlawful detention is premised upon an arrest by
officers acting without a warrant, the following legal principles are
applicable: Whoever arrests or imprisons a person without a warrant is
guilty of a tort, unless he can justify under some of the exceptions in
which arrest and imprisonment without a warrant are permitted by law;
and the burden of proving the existence of the facts raising the exception
is upon the person making the arrest or inflicting the imprisonment.

(Citations, punctuation, and emphasis omitted.) Collins v. Sadlo, 167 Ga. App. 317,

318 (306 SE2d 390) (1983).

(1) Individual Defendants

With regard to the element of an unlawful detention, there is no evidence that

McClendon was confined by anyone before the MARTA detective placed him under

arrest without a warrant.4

4
Smith, supra, 330 Ga. App. at 343-344 (2) (a) (“A detention need not consist
of physical restraint, but may arise out of words, acts, gestures, or the like, which

10
 Because none of the Individual Defendants personally detained McClendon,

as to them, this case presents the question of whether there is evidence that any of

them wrongfully procured McClendon’s warrantless arrest by the detective.

[Georgia] law draws a fine line of demarcation between cases where a
party directly or indirectly urges a law enforcement official to begin
criminal proceedings and cases where a party merely relays facts to an
official who then makes an independent decision to arrest or prosecute.
In the former case there is potential liability; in the latter case there is
not.

(Citation, punctuation, and emphasis omitted.) Smith, supra, 330 Ga. App. at 343 (2)

(b) (i).5 In this case, there is evidence that Harper told the MARTA detective that he

induce a reasonable apprehension that force will be used if plaintiff does not submit;
and it is sufficient if they operate upon the will of the person threatened, and result
in a reasonable fear of personal difficulty or personal injuries. However, there is no
issue for the jury where there is no detention.”) (citations and punctuation omitted);
see also OCGA §§ 51-7-21 (“If imprisonment is by virtue of a warrant, neither the
party who procured the warrant in good faith nor the officer who executed the warrant
in good faith shall be liable for false imprisonment even if the warrant is defective in
form or is void for lack of jurisdiction. In such cases, good faith must be determined
from the circumstances.”), 51-7-22 (“If false imprisonment is the act of several
persons, they may be subject to an action jointly or separately. If jointly, all shall be
responsible for the entire recovery.”).
5
See also Turnage v. Kasper, 307 Ga. App. 172, 180 (1) (b) (i) (704 SE2d 842)
(2010) (“A distinction must be drawn . . . between actually instigating or procuring
the institution of criminal proceedings, and merely providing information to a law
enforcement official without in any way attempting to influence his judgment. A

11
suspected McClendon of taking the van. McClendon has not identified any evidence,

however, that any of the Individual Defendants directed or urged the detective to

arrest him. Rather, the evidence shows the Individual Defendants merely conveyed

factual information to the detective. Indeed, the detective testified the decision to

arrest McClendon was made solely by him and his supervisor, and at the time that

decision was made the detective had conducted an investigation through which he

became aware of both the location of the van and how it came to be there.

Consequently, the trial court correctly granted the Individual Defendants’ motion for

summary judgment as to his claim for false imprisonment.

(2) MARTA

As for MARTA, McClendon argues that it is vicariously liable for the actions

of its employees. As discussed above, the Individual Defendants are not liable for

person may be held liable for malicious prosecution when he provides information
to an investigating officer that he knows to be false, and in doing so unduly
influences the authorities to take the complained of actions.”) (footnotes omitted);
Ferrell, supra, 295 Ga. App. at 330 (2) (Where the plaintiff establishes an unlawful
detention, “the next issue to consider is whether [the defendant] caused the arrest.
Whether a party is potentially liable for false imprisonment by directly or indirectly
urging a law enforcement official to begin criminal proceedings or is not liable
because he merely relates facts to an official who then makes an independent decision
to arrest is a factual question for the jury. The party need not expressly request an
arrest, but may be liable if his conduct and acts procured and directed the arrest.”)
(citations and punctuation omitted).

12
false arrest, therefore, summary judgment was proper as to MARTA on McClendon’s

claims based on the actions of the Individual Defendants. See PN Express, Inc. v.

Zegel, 304 Ga. App. 672, 680 (5) (697 SE2d 226) (2010) (“Generally, where a party’s

liability is solely vicarious, that party and the actively-negligent tortfeasor are

regarded as a single tortfeasor. Thus . . . a verdict exonerating the employee also

exonerates the employer.”)

The same result is proper as to McClendon’s claims based on the actions of the

detective. Under Georgia law, “official immunity, also known as qualified immunity,

affords limited protection to public officers and employees sued in their personal

capacity.” Reed v. DeKalb County, 264 Ga. App. 83, 86 (589 SE2d 584) (2003).6

“The rationale for this immunity is to preserve the public employee’s independence

of action without fear of lawsuits and to prevent a review of his or her judgment in

hindsight.” (Citation omitted.) Id. “Although official immunity does not apply to

6
The MARTA detective who arrested McClendon is a peace officer under
Georgia law and thus has the “authority and immunities equivalent to those of a peace
officer of the municipality or county in which [he was] discharging the duties as a
member of such force.” Ga. L. 1994, Vol. 2, pp. 4959-4961 (¶ 3) (amending Ga. L.
1965, Vol. 2, p. 2243 et seq. (the Metropolitan Atlanta Rapid Transit Authority Act
of 1965) (§ 8 (o))). The undisputed evidence shows that the detective was certified
by the Georgia Peace Officer Standards and Training Council and had the same
authority as any DeKalb County police officer.

13
purely ministerial duties, public officials are immune from individual liability for

discretionary acts undertaken in the course of their duties and performed without

wilfulness, malice, or corruption.” (Citation omitted.) Id.

The detective’s decision to arrest McClendon was a discretionary act

undertaken in the course of his official duties. See Mercado v. Swoope, 340 Ga. App.

647, 650 (798 SE2d 291) (2017) (“The decision to make a warrantless arrest, such as

the one at issue here, is considered a discretionary act within the scope of the officer’s

official functions.”) (citation omitted). We must therefore determine if a fact issue

exists about whether the detective acted “without wilfulness, malice, or corruption.”

(Citation omitted.) Reed, supra, 264 Ga. App. at 86.

To be sure, the detective’s decision to arrest McClendon was, at best,

misguided. But “[e]ven when an arresting officer operates on a mistaken belief that

an arrest is appropriate, official immunity still applies.” Id. Indeed, absent “actual

malice” — that is, “a deliberate intent to do wrong” — or “deliberate intent to injure,”

“no liability attaches to the officer’s exercise of his lawful discretion even when the

decision to effectuate the arrest is flawed.” Id. Nothing in the record shows that the

detective intended to do wrong or intended to injure McClendon. Given that the

detective would have been immune from McClendon’s claims, MARTA cannot be

14
held vicariously liable for McClendon’s false imprisonment claim based on his

actions. See PN Express, Inc., supra, 304 Ga. App. at 680 (5).

(b) Malicious arrest. It is undisputed that none of the Individual Defendants

were involved in obtaining the warrant for McClendon’s arrest. Consequently,

summary judgment was proper as to the Individual Defendants and as to MARTA for

vicarious liability based on their actions. See PN Express, Inc., 304 Ga. App. at 680

(5).

As for vicarious liability for MARTA due to the actions of the detective,

because he would be entitled to official immunity, there can be no liability absent

proof of actual malice in the sense of a deliberate intent to cause McClendon the harm

he suffered.7 Everson v. Dekalb County School Dist., 344 Ga. App. 665, 668 (2) (811

SE2d 9) (2018); Tuggle v. Rose, 333 Ga. App. 431, 434-435 (3) (773 SE2d 485)

(2015); Griswold v. Collins, 318 Ga. App. 556, 558 (2) (a) (734 SE2d 425) (2012);

Selvy v. Morrison, 292 Ga. App. 702, 704 (665 SE2d 401) (2008); see Charles R.

Adams, Ga. Law of Torts § 29.5 (updated December 2017). As explained above, there

7
Peace officers employed as part of MARTA’s security force “shall be
personally liable to one who sustains special damages as a result of any official act
of such officers if done oppressively, maliciously, corruptly, or without authority of
law.” Ga. L. 1994, Vol. 2, pp. 4959-4961 (¶ 3).

15
is no such evidence here. Consequently, MARTA cannot be held vicariously liable

for malicious arrest based on the actions of the detective, and summary judgment was

proper as to this claim. See PN Express, Inc., 304 Ga. App. at 680 (5).

2. McClendon contends that the trial court erred in granting the motion for

summary judgment on his claim for intentional infliction of emotional distress. We

find no error.

“Georgia has long recognized a cause of action for intentional infliction of

emotional distress.” (Citation omitted.) Steed v. Fed. Nat. Mortgage Corp., 301 Ga.

App. 801, 810 (2) (b) (689 SE2d 843) (2009).

However, the burden which the plaintiff must meet in order to prevail in
this cause of action is a stringent one. To prevail, a plaintiff must
demonstrate that: (1) the conduct giving rise to the claim was intentional
or reckless; (2) the conduct was extreme and outrageous; (3) the conduct
caused emotional distress; and (4) the emotional distress was severe.

(Citation and punctuation omitted.) Id. Under the second element,

[i]t has not been enough that the defendant has acted with an intent
which is tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been characterized by
malice, or a degree of aggravation which would entitle the plaintiff to
punitive damages for another tort. Liability has been found only where
the conduct . . . is so outrageous in character, and so extreme in degree,

16
 as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community. Whether
actions rise to the level of extreme and outrageous conduct necessary to
support a claim of intentional infliction of emotional distress is generally
a question of law.”

(Punctuation and footnotes omitted.) Abdul-Malik v. AirTran Airways, 297 Ga. App.

852, 856 (1) (678 SE2d 555) (2009). “[C]omments made within the context of one’s

employment,” including false accusations of dishonesty in the workplace, “may be

horrifying or traumatizing, but they are generally considered a common vicissitude

of ordinary life.” Southland Propane, Inc. v. McWhorter, 312 Ga. App. 812, 819 (3)

(720 SE2d 270) (2011). Such comments and accusations do not “exceed the bounds

usually tolerated by society” and thus do not constitute the extreme and outrageous

conduct needed for an intentional infliction of emotional distress claim. Id. See also

Lively v. McDaniel, 240 Ga. App. 132, 134 (2) (522 SE2d 711) (1999) (“Defamatory

or derogatory remarks regarding one’s employment generally do not rise to [the]

level” of extreme and outrageous conduct that is the threshold for an intentional

infliction of emotional distress claim.) (citations omitted).

(a) The Individual Defendants

17
 Viewed in the light most favorable to McClendon, the record could support a

finding that Harper, having no reason to believe that the van had been stolen,

vindictively led his supervisors and the investigators to suspect that McClendon had

done so. The record could also authorize a finding that the supervisors cravenly

allowed the prank to unfold to its harmful conclusion, even though Harper’s own

report showed that he himself had wrongfully taken the van out after hours, and even

after learning that McClendon had simply moved the van to a more secure location

(MARTA’s MOW facility). Nevertheless, we conclude that the Individual

Defendants’ conduct was not so outrageous and extreme as to support a claim for

intentional infliction of emotional distress under Georgia law. Southland Propane,

supra, 312 Ga. App. at 819 (3) (accusing an employee and minority shareholder of

misappropriating corporate funds and forgery, terminating his employment, and

ordering him to leave the premises did not exceed bounds usually tolerated by

society); Kramer v. Kroger Co., 243 Ga. App. 883, 888 (3) (a) (534 SE2d 446) (2000)

(suspending and investigating employee over missing cash, and employer’s

conditioning of employee’s return on a demotion and liability release, was not so

outrageous as to permit employee’s recovery for intentional infliction of emotional

distress); Lively, supra, 240 Ga. App. at 134 (2) (employer’s statements regarding a

18
former employee’s conduct, including statements that implied the employee had

stolen and retained important documents belonging to the insurance company, were

not sufficiently outrageous to give rise to claim for intentional infliction of emotional

distress).8

(b) MARTA

Given that summary judgment was proper as to the conduct of the Individual

Defendants as to McClendon’s intentional infliction of emotional distress claim,

8
See also Garcia v. Shaw Indus., Inc., 321 Ga. App. 48, 52-53 (1) (b) 741
SE2d 285 (2013) (employer’s filing of an administrative fraud complaint with the
State Board of Workers’ Compensation that accurately reported that former employee
had obtained employment under an alias was not sufficiently extreme and outrageous
conduct to support former employee’s claim for intentional infliction of emotional
distress); Abdul-Malik, supra, 297 Ga. App. at 857 (1) (employer’s question, during
the course of an investigation into an alleged workplace crime by employee, whether
employee was a Muslim and a police detective’s statement that employee was a
terrorist and a liar and was guilty of making terroristic threats did not rise to the level
of extreme and outrageous conduct as to permit employee’s recovery for intentional
infliction of emotional distress); Phillips v. Pacific & S. Co., 215 Ga. App. 513, 516
(451 SE2d 100) (1994) (television station’s publicly broadcasting false statement that
it terminated reporter because, without the station’s knowledge, he had signed a
movie deal regarding a murder case, did not rise to the requisite level of
outrageousness and egregiousness necessary to support a claim for intentional
infliction of emotional distress); Peoples v. Guthrie, 199 Ga. App. 119, 121 (404
SE2d 442) (1991) (employer falsely accusing an employee, in the presence of her
co-workers, of cheating on an employment-related proficiency test was not
sufficiently extreme or outrageous to sustain a claim for intentional infliction of
emotional distress).

19
summary judgment was also proper as to MARTA’s vicarious liability on this claim.

See PN Express, Inc., 304 Ga. App. at 680 (5).

3. McClendon contends that the trial court erred in failing to reach the issues

of damages relating to his termination and punitive damages. Again, we disagree.

If McClendon has any recourse for wrongful termination, it is through the

Labor Agreement between MARTA and his union.9 Pretermitting whether

McClendon was entitled to pursue the Labor Agreement’s grievance procedures, he

has not shown any basis for recovering damages for wrongful termination in the

framework of this litigation.10

9
See Fink v. Dodd, 286 Ga. App. 363, 365 (1) (a) (649 SE2d 359) (2007) (“In
Georgia, the general rule is that an employee, employed at will and not by contract,
cannot bring an action against his employer for wrongful discharge from employment
or wrongful interference with the employment contract when and where he is an at
will employee with no definite and certain contract of employment. The employer
with or without cause and regardless of its motives may discharge the employee
without liability.”) (citation and punctuation omitted); Mr. B’s Oil Co. v. Register,
181 Ga. App. 166, 167 (351 SE2d 533) (1986) (“Wrongful termination is a tortious
act growing out of the breach of the employment contract. . . . [I]n the absence of a
controlling written contract of employment, there is no cause of action against the
employer for alleged wrongful termination.”) (citation omitted).
10
Even if McClendon’s argument had been properly presented, punitive
damages are not available absent liability on an underlying cause of action. See
Bartenfeld v. Chic-Fil-A, 346 Ga. App. 759, 769 (5) (815 SE2d 273) (2018) (“Under
Georgia law, a plaintiff cannot recover punitive damages when the underlying claim
fails.”) (citation omitted). Because McClendon failed to demonstrate any liability by

20
 4. McClendon contends that the trial court erred by granting summary

judgement on his claims against MARTA for negligent hiring, training, and

supervision. We disagree. Because MARTA has “admit[ted] the applicability of

respondeat superior, it is entitled to summary judgment on claims for negligent

entrustment, hiring, and retention.” Durben v. American Materials, Inc., 232 Ga. App.

750, 751 (1) (503 SE2d 618) (1998). McClendon seeks to invoke an exception to that

rule, which applies if he has a valid claim for punitive damages against MARTA. See

id. But he does not have a valid claim for punitive damages against MARTA. See

Metropolitan Atlanta Transit Auth. v. Boswell, 261 Ga. 427, 427 (405 SE2d 869)

(1991) (“[A]n award of punitive damages against MARTA would violate the public

policy of Georgia, and therefore is impermissible as a matter of law.”). Accordingly,

the trial court did not err by granting MARTA summary judgment on these grounds.

Judgment affirmed. Gobeil and Coomer, JJ., concur.

the defendants, his claim for punitive damages also fails.

21