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					                               COURT OF APPEALS
                               S'L'ATE OF GEORGIA


CLARK 1~TLANTA
  UNIVERSITY,INC.,

                 Applicant

v.                                             Application No.

DR.JOHNNY WILSON,DR.FRANK
SI~YA,DR.LISA 1VIKOL 1VEALY,
DIZ. HENRY IVEAL, and DR.LONZ~C
L,EWIS,

                 Respondents

                     APPLICATION FOR INTERLOCUTORY ~.PPEAL

          Applicant Clark Atlanta University, Inc. "CAU")respectfully requests
                                                 (

 that this Court grant it leave to appeal the order partially denying its motion for

 summary judgment entered in Civil Action No. 2011CV196090,in the Superior

 Court of Fulton County.

                                 Il\TTRODUCTIOl~

          The Honorable Shawn Ellen LaGrua partially denied CAU's motion for

 summary judgment in an August 15, 2012 order. (Exhibit A). Judge LaGrua

 certified her order for immediate review on August 24, 2012. (Exhibit B). This



 Atlanta 1606924.1
Court should grant leave to appeal Judge LaGrua's order because CAU meets the

requirements set forth in Court of Appeals Rule 30. Specifically, the order is

erroneous as a matter of law and if not reversed will lead to substantial error at

trial that will severely and could permanently prejudice CAU.

        The court's ruling directly contradicts long-standing precedent of this

Court that the covenant of good faith in the fulfilling of contractual obligations

does not exist independently of any breach of the contract. Here, the court ruled

correctly that no contract existed as alleged by plaintiffs, which means there was

no contract that could be breached; yet, the court denied CAU's motion for

summary judgment based on a supposed material fact in dispute as to CAU's

good faith in administering its non-contractual policies. Under this Court's

cases, there is no independent cause of action in contract for breach of the

covenant of good faith, and there is no contractual good faith obligation at all in

the administration of non-contractual employment policies. Thus, unless this

Court reverses the trial court and grants judgment for CAU,the institution will

be forced to defend this case before a jury under a law of the case based upon a

mistaken interpretation and application of this Court's unbroken precedent,

leading to substantial error at trial.

                                           2
Atlanta 1606924.1
                         TURISDICTIONAL STATEMENT

        CAU seeks approval to appeal from an interlocutory order for which the

Superior Court issued a Certificate of Immediate Review pursuant to O.C.G.A. ~

5-6-34(b) on Friday, August 24, 2012. CAU files this petition within ten days o£

the granting and filing of the Certificate of Immediate Review. The Court of

Appeals has jurisdiction pursuant to Article VI,Section V,Paragraph III of the

Constitution of the State of Georgia. This is not a case exclusively reserved to the

Supreme Court of Georgia or conferred on other courts of law.

                              STATEMEl\tT OF ISSUES

        In denying summary judgment, the trial court committed plain legal error

by imposing a contractual good faith obligation in administering non-contractual

employment policies and by finding a genuine issue of material fact as to the

existence of good faith in declaring an enrollment emergency.

         This holding is erroneous for two reasons. First, as the court found, there

is no contract to enforce; thus, there can be no corresponding legal obligation to

exercise good faith. Second, there is no independent cause of action for breach of

the implied covenant of good faith. If there is no contract to enforce, there can be




                                           3
Atlanta 1606924.1
no breach of the contract and no breach of the covenant of good faith, as a matter

of law.

                             STATEMENT OF FACT

        CAU is a comprehensive, private, coeducational institution of higher

education with a predominantly African-American heritage. This case originates

in CAU's steady, decade-long decline in enrollment and related operating

revenue and in its subsequent attempt for institutional survival.

        In 2008, when this nations economy collapsed, CAU already was

financially strained from the statistically-proven decline in student enrollment

over many years, and the institutions resulting loss of additional enrollment and

revenue in the recession exacerbated the already unstable financial situation. By

late in the Fa112008 semester, CAU had to consider priority decisions about its

current faculty and staff size, and about its size in the future and whether it

could even continue its very existence beyond the Spring 2009 semester. CAU

chose to make the hard but only realistic decision for institutional survival. It

laid off and dismissed fifty-four faculty members,letting go those who like the

plaintiffs were judged not critical to its academic programs and keeping those

without whom its academic programs would suffer and decline.


Atlanta 1606924.1
        Due to the proven decline in enrollment and in related revenue, CAU's

President, Carlton Brown, declared an "enrollment emergency" pursuant to

section 2.8.5.2 of the CAU Faculty Handbook and initiated the process that

resulted in plaintiffs' layoffs and in the layoffs of other faculty members. Section

2.8.5.2 defines enrollment emergency as "either a sudden or unexplained

progressive decline in student enrollment the detrimental effects of which are too

great or too rapid to be offset by normal procedures outlined in the Handbook."

        Dr. Brown concluded that, without taking action in declaring an

enrollment emergency, CAU would be out of money and unable to pay its bills

sometime in the Summer 2009. Unable to meet its financial obligations, the

CAU's Board of Trustees (not the President) would then have had to declare a

"financial exigency" under section 2.8.5.3 of the CAU Faculty Handbook and

most likely CAU would have closed its doors and ceased functioning. Section

2.8.5.3 provides: "Financial exigency is a rare and serious institutional crisis

which is defined as the critical, urgent need of the university to reorder its

current fund monetary expenditures in such a way as to remedy and relieve its

inability to meet the projected annual monetary expenditures with sufficient

revenue."

                                          5
Atlanta 1606924.1
        It is important to set out these provisions because the court misunderstood

them as alternative, remedial choices that CAU supposedly had and made when

addressing the enrollment decline, when in reality they address far different

economic challenges. Plaintiffs have never claimed that financial exigency

existed, or that CAU breached a contract by not declaring financial exigency. It is

not and has never been an issue in this case, and thus any disputed fact as to a

choice between declaring an enrollment emergency or. a financial exigency is

both illusory and immaterial.

        The plaintiffs challenged CAU's life-saving decisions, and they filed suit in

the Superior Court of Fulton County alleging breach of contract. The plaintiffs'

sole contract claim is that CAU substantively breached section 2.8.5.2 of the CAU

Faculty Handbook when it declared an enrollment emergency when,as they

contend, no enrollment emergency existed. Because they claimed that no facts

supported CAU's declaration of an enrollment emergency,the plaintiffs also

asserted that CAU acted in bad faith in declaring an eruollment emergency,

entitling them to an award of attorney's fees under O.C.G.A. ~ 13-6-11.

         The plaintiffs never asserted that CAU breached a contract by not

declaring a financial exigency, or that CAU breached a contract by choosing to


Atlanta 1606924.1
declare an enrollment emergency rather than a financial exigency. Indeed, the

plaintiffs claimed that no circumstances would have justified a declaration of

financial exigency under section 2.8.5.3 of the CAU Faculty Handbook, which

also would have resulted in their layoffs. (Complaint ¶26). Thus, plaintiffs claim

that no set of circumstances justified their layoffs, whether enrollment emergency

under section 2.8.5.2 or financial exigency under section 2.8.5.3.1

        CAU moved for summary judgment on the grounds that the CAU Faculty

Handbook, including section 2.8.5.2 regarding layoffs due to an enrollment

emergency, is not a contract as a matter of law. The court agreed, relying on

Jones v. Chatham County, 223 Ga. App. 455,477 S.E.2d 889(1996), and holding that

"faculty handbooks do not constitute ... contract[s]."

        Since the CAU Faculty Handbook - including section 2.8.5.2 - is not a

contract, there can be no breach of contract for not following section 2.8.5.2, as




1In addition, the plaintiffs alleged that CAU breached the CAU Faculty
Handbook by hiring replacements for them,and plaintiff Lisa Nealy alleged
conversion and negligent maintenance of certain personal property. The trial
court properly granted summary judgment to CAU on the replacement hiring
claim, but the court denied summary judgment on the individual, singular
conversion claim, which is unrelated to the interlocutory issue.
                                          7
Atlanta 1606924.1
plaintiffs allege. Likewise, since there can be no breach of contract as a matter of

law, there can be no breach of the covenant of good faith and fair dealing.

        Even so, on August 15, 2012, the trial court partially denied CAU's motion

for summary judgment. The trial court correctly concluded that the CAU Faculty

Handbook is not a contract; however, the trial court mistakenly held that there

existed a contractual obligation for CAU to make a good faith decision between

declaring either an enrollment emergency or a financial exigency. None of the

parties argued that the Board of Trustees should have declared a financial

exigency; yet, the trial court imposed the obligation of making a good faith

choice on CAU as a prelude to finding a good faith requirement and a fact in

dispute as to that good faith choice, when in truth there was no choice at all.

Likewise, because the court discerned "the issue of whether CAU conducted the

layoffs in good faith," it denied summary judgment on the collateral claim for

attorney's fees for bad faith.

                                     ARGUMENT

A.       CAtJ Satisfies the Standard for Interlocutory A~~eal

         This Court should grant an application for leave to file an interlocutory

appeal where "(1) The issue to be decided appears to be dispositive of the case;



Atlanta 1606924.1
or (2) The order appears erroneous and will probably cause a substantial error at

trial or will adversely affect the rights of the appealing party until entry of final

judgment in which case the appeal will be expedited; or (3) The establishment of

precedent is desirable." Ga. Ct. App. R. 30(a).

        Here,the trial court's order is clearly erroneous in that it mistakenly

imposes on CAU a legal obligation to show contractual good faith in its decision-

making based upon non-contractual employment policies. The trial court's order

will lead to substantial error at trial and will prejudice CAU by requiring it to

prove legal justification for anon-contractual, non-actionable decision, and then

by requiring CAU to convince a jury that it had a good faith basis for declaring

an enrollment emergency instead of a financial exigency, even though that has

never been an issue in the case and is therefore not material.

         The trial court has certified that "the issues involved in said decision are of

such importance that immediate review should be had to the Georgia Court of

Appeals." CAU therefore respectfully requests that the Court grant it leave to

appeal the trial court's order.




                                             D
Atlanta 1606924.1
B.      The CAU Faculty Handbook is not a Contract and Cannot Support
        Plaintiffs' Claims for Breach of Contract

        "[T]he party claiming the existence of a contract has the burden of proving

its existence and terms, and this proof must be clear and convincing." Georgia

Farm Bureau Mutual Ins. Co. v. Croley, 263 Ga. App.659,661,588 S.E.2d 840 (2003).

Plaintiffs' contract claim is rooted singularly on section 2.8.5.2 of the CAU

Faculty Handbook, addressing the declaration of an enrollment emergency. As

the court found,the CAU Faculty Handbook,including section 2.8.5.2, is not a

contract, and plaintiffs' claim for breach of contract should have failed and the

case should have been resolved for that simple, yet controlling, conclusion.

Plaintiffs thus as a matter of law failed to meet their initial burden to prove the

existence of the contract they claim CAU breached, which the court recognized.

This is the correct holding and is consistent with this Court's precedent. Jones v.

Chatham County, 223 Ga. App.455,477 S.E.2d 889(1996); Lane v. K-Mart Corp.,

190 Ga. App. 113,378 S.E.2d 136 (1989); Garmon v. Health Group ofAtlanta, Inc.,

183 Ga. App.587,359 S.E.2d 450 (1987); Swanson v. Lockhead Aircraft Corp.,181

Ga. App. 876,354 S.E.2d 204, 210 (1987); Burgess v. Decatur Federal Savings ~ Loan




                                          QI]
Atlanta 1606924.1
Assoc., 178 Ga. App. 787,345 S.E.2d 45 (1986); Anderberg v. Georgia Electric

Membership Corp., 175 Ga. App. 14, 332 S.E.2d 326 (1985).

C.      CAU is not otherwise Contractually Obligated to
        Comply with Section 2.8.5.2 of the CAU Faculty Handbook

        Since the CAU Faculty Handbook is not a contract, in order to avoid

summary judgment plaintiffs had to prove that CAU's compliance with section

2.8.5.2 is otherwise contractually obligated, which is a legal issue for the court.

Dan J. Sheehan Co. v. Ceramic Technics, Ltd., 269 Ga. App. 773, 777,605 S.E.2d 375

(2004). If compliance with section 2.8.5.2 is not otherwise contractually

obligated, there remains no contract at all that can be breached; plaintiffs have

failed in their burden of proof; and summary judgment was required.

        The court did not find that section 2.8.5.2 regarding enrollment

emergencies amounts to an "additional compensation plan" warranting

contractual respect, and that clearly is the correct result since section 2.8.5.2 does

not provide plaintiffs with any financial remuneration at all. Thus, section 2.8.5.2

remains without contractual significance and cannot be legally breached or

legally enforced. Since plaintiffs' sole claim was that CAU breached a contract

by declaring an enrollment emergency when none existed, this should have been



                                          11
Atlanta 1606924.1
the end of the case, which would be consistent with this Court's cases. See, e.g.,

Shannon v. Huntley's Jiffy Stores, 174 Ga. App. 125,329 S.E.2d 208 (1985).

        Instead, the court focused on section 2.8.5.3 and held that it was an

additional compensation plan because it provided for payments in the nature of

severance in the event of layoffs occasioned by the declaration by the Board of

Trustees of a financial exigency. Whether section 2.8.5.3 is an additional

compensation plan is beside the point because plaintiffs never have asserted that

a financial exigency rather than an enrollment emergency existed, or that CAU

denied or failed to pay them severance benefits under that provision.

        The court mistakenly assumed that an enrollment emergency and a

financial exigency were alternative responses at CAU's whim to the same

financial threat. They are vastly different. Indeed,President Brown declared an

enrollment emergency in an effort to stabilize CAU's financial condition and to

avoid having to suffer financial exigency later, when the money ran out. In

financial exigency, the institution closes its doors and abandons its academic

mission, much like Morris Brown College did several years ago.

         The federal district court already has concluded that President Brown

appropriately declared an enrollment emergency. In Carter v. Clark Atlanta

                                           12
Atlanta 1606924.1
University, No.1:10-CV-00247-WCO (N.D. Ga. Sept. 23, 2011), U.S. Magistrate

Judge Linda Walker and U.S. District Judge William O'Kelley held that

"[President] Browns declaration of an enrollment emergency was not

unreasonable," and that "there is no evidence to indicate that Brown did not

honestly believe that there was a need to declare an enrollment emergency."

There was no suggestion that President Brown had to choose, in good faith or

otherwise, between declaring an enrollment emergency or submitting the issue

of financial exigency to the Board of Trustees. It is simply not an issue and has

no materiality to this case.

        Since compliance with section 2.8.5.2 is not otherwise contractually

obligated, there is no contract at all that could have been breached, plaintiffs

have failed in their burden of proof, and summary judgment was required.

D.       There i~ No Covenant of Good Faith and Fair
         I3ealing where there is No Contractual Obli a~ tion

         Under Georgia law,the covenant of good faith and fair dealing only

applies to the performance of the terms of a contract. WirelessMD, Inc. v.

Healthcare.com Corp., 271 Ga.App. 461,468,610 S.E.2d 352(2005); Camp v. Peetlulc,

262 Ga.App. 345, 350, 585 S.E.2d 704(2003). If, like here, there is no contractual



                                          13
Atlanta 1606924.1
duty, there can be nn failure to actin good faith in performing a contract. Id.

Thus, there is no separate and independent cause of action for breach of the

implied covenant of good faith and fair dealing. Absent a viable claim for breach

of contract, there is no claim as a matter of law for breach of this implied

covenant. Stuart Enterprises Intl, Inc. v. Peykan, Inc., 252 Ga. App. 231, 233-34, 555

S.E.2d 881 (2001). The court's ruling is inconsistent with the many cases of this

Court refusing to recognize an independent cause of action in contract for breach

of the duty of good faith and refusing to apply any contractual obligation of

good faith in the normal administration of employment policies.

        Here,for the reasons set forth above, there is no legally viable claim for

breach of contract. As such, there also can be no breach of the covenant of good

faith and fair dealing.

E.      The Court is Authorized to Entex Judgment for CAU

         The trial court's decision as to the existence of a contract vel non was a

question of law for the court, and the court decided correctly that neither the

CAU Faculty handbook nor its section 2.8.5.2 constitutes a contract. The court's

error was in appending a contractual good faith obligation on the administration

of non-contractual employment policies. This Court reviews that decision de

                                            14
Atlanta 1606924.1
novo. Salton Motorhomes v.Southtrust Bank of Georgia, 225 Ga. App. 348,484 S.E.2d

21 (1997). Likewise, the Court reviews the evidence de novo in determining

whether the trial court erred in measuring the existence of a genuine issue of

material fact. See Rubin v. Cello Corp., 235 Ga. App. 250,510 S.E.2d 541 (1998). In

view of this Court's cases, it is clear that the trial court made an error of law on

undisputed material facts, and that CAU was entitled to summary judgment on

plaintiffs' claims for breach of contract and for attorney's fees.

         This Court's independent review should confirm a "plain legal error"

warranting reversal and entry of judgment for CAU. Suarez v. Hulbert, 246 Ga.

App. 822,543 S.E.2d 733(2000).

                                   COIiTCLtJSION

           CAU's application for interlocutory appeal meets multiple requirements

under Court of Appeals Rule 30. The trial court's order will lead to substantial

error at trial and will prejudice CAU by requiring it to prove legal justification

for anon-contractual, non-actionable decision, and then require CAU to convince

a jury that it had a good faith basis for declaring an enrollment emergency

instead of a financial exigency, even though that was never an issue in the case.




                                           15
 Atlanta 1606924.1
        For the foregoing reasons, CAU respectfully requests that this Court grant

its Application for Interlocutory Appeal.

                                      CLARK ATLANTA
                                      UNIVERSITY,INC.




                                      Burton F. Dodd
                                      Georgia Bar No. 223880
                                      bdodd@laborlazuUers.com

                                      Matthew R. Simpson
                                      Georgia Bar No. 540260
                                      msim~son@labof~lawi~ers,com

                                      FISHER &PHILLIPS LLP
                                      1075 Peachtree Street, NE
                                      Suite 3500
                                      Atlanta, Georgia 30309

                                      (404)231-1400(Voice)
                                      (404) 240-4249(Facsimile)




                                          16
Atlanta 1606924.1
                                  COURT OF APPEAL
                                  STATE OF GEORGIP~

CLARK ATLANTA
  UNIVERSITY,INC.,

                 Applicant

v.                                               Application No.

DR.JOHNNY WILSON,DR. FRANK
~ISYA,DR.LISA NIKOL I~TEALY,
DR.HENRY NEAL,and DR.LONZY
LEWIS,

                 Respondents


                               CERTIFICATE OF ~EIZVICE

         I certify that, on September 4, 2012, I served a copy of CAU's Application

 for Interlocutory Appeal on counsel of record by depositing a copy of the

 Application in the United States Mail, postage prepaid, addressed as follows

 (with an additional copy also delivered simultaneously by electronic mail):

                               Mitchell D. Benjamin, Esquire
                               Billies &Benjamin LLP
                               One Tower Creek
                               3101 Towercreek Parkway,Suite 190
                               Atlanta, Georgia 30339


                                                 ~-.~. ~•          ~~~r__.

                                            17
 Atlanta 1606924.1
EXHIBIT A
LGR


                              IN THE SUPERIOR COURT OF FULTON COUNTY
                                                                                       ~{LED IN OFFICE
                                             STATE OF GEORGIA

      DR. JOHNNY WILSON,DR. FRANK
                                                                                            AUG 15 2012
      SISYA, DR. LISA NIKOL,DR. HENRY                                                  DEPUI`!CLERK SUPERIO
                                                                                                           R COURT
      NEAL and DR. LONZY L~WIS,
                 Plaintiffs,
                                                                  CIVIL ACTION FILE NO:

                                                                        2011 CV 196090
      CLARK ATLANTA UNIVERSITY,
              Defendant(s).



                                                    t1 •

                                                                                   zy Judgment. The
             This matter comes before the Court for Defendant's Motion for Summa
                                                                              applicable law,
      Court, having heard the argument of parties and reviewed the record and
                                                                         Motion.
      HEREBY GRANTS IN PART and DENIES IN PART Defendant's
                                                                            (        ")faculty as part of
              This case stems from the layoff of Clark Atlanta University "CAU
                                                                               ency." Plaintiffs have sued
      cost cutting measures taken pursuant to a declared "enrollment emerg
                                                                                  litigation, conversion,
      for breach of contract for the actual layoffs, attorney's fees and costs of
                                                                                  t faculty. The Court will
      negligence and breach of contract for the alleged rehiring of replacemen
      address each in turn.

                                          Count 1 — Breach of Contract
                                                                             ook (the "Handbook")
              Plaintiffs claim that certain aspects of the CAU Faculty Handb
                                                                                do not constitute a
      constitute part oftheir contracts with CAU. Typically, faculty handbooks
                                                                               exceptions have been
      contract. Jones v. Chatham County, 223 Ga. App. 455 (1996). However,
                                                                                 or detail certain rights
      found where handbook provisions create "additional compensation plans"
                                                                                    p. 595 (1992);
      having to do with tenure. Fulton-DeKalb Hosp. Auth. v. Metzler, 203 Ga.Ap
      Moffie v. O lg etliorpe Univ. Inc., 186 Ga. App. 328, 329, 367 (1988).
                                                                                        an enforceable
              The Court therefore finds that subsection 2.8.5.5(a)(2)(b) creates such
                                                                               of a "financial exigency,"
      additional compensation plan. This section provides that, in the event
                                                                               and non-tenured faculty
      tenured faculty who are being laid off are entitled to one year's notice
                                                                                  this guarantees a faculty
      are entitled to complete the then current academic semester. Essentially,
                                                                            ed a financial exigency, it
      member a certain salary in the event of a layoff and, if CAU declar
                                                                                 ment emergency, to
      would be bound by this provision. In this case, CAU declared an enroll
                                                                            rights bestowed by
      which 2.8.5.5(a)(2)(b) does not apply. However, the compensation
                                                                          decision between a financial
      2.8.5.5(a)(2)(b) necessarily requires that CAU make a good faith
                                                        not the case, then CAU could avoid its
exigency and an enrollment emergency. If this were                                          cial
                                                     llment emergency rather than a finan
obligations by always choosing to declare an enro                                             s that
                                                    provision meaningless. T'he Court find
 exigency, rendering the additional compensation                                             aring an
                                                         a good faith basis existed for decl
there is a genuine issue of material fact as to whether
                                                      mary judgment on this issue.
 enrollment emergency and therefore DENIES sum
                                                          contractual obligation under the Faculty
         Defendants assert that CAU is relieved of any                                         l not be
                                                    contains a provision stating that it "shal
:Handbook because Section 2.0 ofthe Handbook                                                    CAU is
                                                      t finds this argument unpersuasive. If
 construed as a legally binding contract." The Cotu                                         CAU is
                                                   ision ofthe Handbook then tenure at
 exempted from any responsibility under the prov
                                                     er any additional compensation plans
 essentially meaningless. In addition, it would rend
                                                     App. 692,691981).
 meaning~ess. See Fletcher v. Amax,Inc., 160 Ga.
                                                                                                      are
                                                             which faculty members were laid off
         However, the Court finds that the decisions as to                                       its
                                                   of CAU and the Court will not substitute
.academic decisions falling within the discretion                                           5).
                                                   igan v. Ewing, 474 U.S. 214, 225 (198
judgment for CAU's. Relents of Univ. of Mich
                                                           issue. See also Ellison v. DeKa1b County,
 Summary Judgment is therefore GRANTED as to this
236 Ga. App. 185, 186 (1999).
                                                                          gation
                          Count 2 — Attorney's Fees and Costs of Liti
                                                                                                     for
                                                            ffs in good faith is a question offact
         As the issue of whether CAU conducted the layo                                         neys's
                                                      tion of material fact as to whether attor
a jury, the Court finds that there still exists a ques                                           to the
                                                       efore, sununary judgment is DENIED
fees are warranted under O.C.G.A. § 13-6-11. Ther                                             § 13-6-
                                                     upon the "bad faith" prong of O.C.G.A.
extent the claim fox 1ztigation expenses is based                                                ).
                                                       F. Supp. 2d 1373, 1382(N.D. Ga. 2007
11. APAC-Se., Inc. v. Coastal Caisson Corp., 514
                                                                 igence
                            Counts 3 and 4 — Conversion and Negl
                                                                                                   The
                                                            rding property left on CAU property.
        Dr. Lisa Nikol has brought ~vo tort claims rega                                     Dr.
                                                   erial fact as to whether CAU converted
Court finds that there is a genuine issue of zn.at
                                                       possession of such items and summary
Nikol's physical possessions ox was negligent its
judgment is DENIED as to those issues.
                                                                  computer, the Court finds that,
        However, as to any information stored on any CAU                                     Staff and
                                                      ns Police and Procedures for Faculty,
pursuant to the CAU Technology Communicatio                                                is
                                                    is CAU property. Summary judgment
Students, all information on CAU's computez•s                                                 Nikol that
                                                        ersion as to any data claimed by Dr.
GRA   NTED as to any claim for negligence or conv
is stored on a CAU computer.
                                                                     ged Rehire
                          Count 5 — Breach of Contract for Alle
                                                       employment contracts by hiring
         Plaintiffs allege that CAU has breached their                                      that
                                                     Handbook. However, the default rule is
 repl acements in violation of section 2.8.5.2 ofthe
                                                           in a personnel manual is not actionable
"[a]n employer's failure to follow termination procedures
                                                         CN.A.1:97-CV3786CAM, 1999 WL
under Georgia Law." Shah v. Clark Atlanta Univ„ Inc.,
                                                        not fall under the specific rights relating
1042979(N.D. Ga. July 2U, 1999). This provision does
                                                          plan. Therefore, this provision is not
to tenure, nor does it lay out an additional compensation
                                                              fact remaining on this issue,. The
binding upon CAU and there is no genuine issue of material
motion for szm~maxy judgment is GRANTED as to this issue.
                                                                        the Court finds that there is
        Even if the replacement provision were binding upon CAU,
                                                               sion has been implicated by CAU's
not a genuine issue of material fact as to whether this provi
                                                                were previously taught by Plaintiffs.
actions. CAU has hired adjunct faculty to teach classes that
                                                             responsibilities branched out well
As full time faculty, Plaintiffs received benefits and their
                                                                book states that if a ranked faculty
beyond simply teaching classes. Section 2.8.5.4 ofthe Hand
                                                               his/her position will be hired within a
member is laid offfor certain reasons,"no replacement for
                                                               has been offered reappointment under
period of three years unless the terminated faculty member
                                                             ." A ranked faculty position includes
conditions comparable to those held at the time of layoff.,
                                                          benefits. The use of an adjunct professor
responsibilities other than just teaching and also incurs
                                                              because the responsibilities and
to teach a class does not replace a ranked faculty position
                                                                 those of a ranked faculty member.
benefits to the adjunct faculty member are not comparable to

                                                       on for Summary Judgment is
     The Court HEREBY ORDERS that the Defendant's Moti
                                                 above.
DENIED IN PART and GRANTED IN PART,as set forth

                              -~1 '~
SO ORDERED this the -       1~ day of              ti~~_,2012.



                                                       SHAWN ELLEN LaGRUA,~
                                                       Fulton County Superior Court
                                                       Atlanta Judicial District


Distributed via electronic mail only to:

Mitchell D. Benjamin Benjamin(a~bandblauryers.com

Burton F. Dodd          bdodd(a,laborlawyers.com

Matthew R. Simpson msimpson(a~laborlawYers.com
                                                                         f
                                                                        hrl   ~' ~ ;~r   tl~3 tP
                                                                                                   -,




                        SUPERIOR COURT OF FULTON COU1~tTY
                                STATE OF GEORGIA

                                                                                AUG2~2012
DR.JOHNNY WILSON,DR. FRANK
                                                                                                   COURT
SISYA,DR. LISA NIKOL NEALY,                                              UEPU7Y CLERK SUPERIOR

DR.HENRY NEAL,and DR. LONZY
LEWIS,

                 Plaintiffs

                                                Civil Action No. 2011-CV-196090
                                                   Judge Shawn Ellen LaGrua
CLARK ATLANTA
  UNIVERSITY,INC.,

                 Defendant

                        CERTIFICATE FOR IMMEDIATE REVIEW
                                                                      d August 15,
         Having denied in parf and granted in paxt, by Order date

                                                        t Clar        k Atlanta
2012, the motion for summary judgment filed by defendan

                                                             of the entxy o~ said
University, Inc., the Courf now certifies, within ten days
                                                               importance that
Order, that the issues involved in said decision are of such
                                                              Appeals.
immediate review should be had to the Georgia Couxt of
                                                                   y of said Order that
          The Court therefore certifies within ten days of the entr
                                                              defe     ndant is
 the issues and decision involved are of such importance that

                                                         review this          case
 authorized to ask that the Court of Appeals immediately

 pursuant to O.C.G.A. ~ 5-6-34(b),




 Atlanta 1604400.1
                       i
        Dated: Auguste 2012.



                               Shawn Ellen LaGrua,Ju
                               Fulton County Superior Court
                               Atlanta Judicial Disfxict




Atlanta 16044D0.1

				
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