Soloski v. Adams (600 F. Supp. 2d 1276, 2009)

ORDER

MARVIN H. SHOOB, Senior District Judge.

The matter before the Court is the Magistrate Judge’s Report & Recommendation (R & R) and plaintiffs and defendants’ objections to the R & R.

Background

The Court adopts the following undisputed facts as stated in the R & R:

This case arises out of allegations that Plaintiff made comments to a female subordinate that she considered to constitute sexual harassment. While Plaintiff acknowledges having made the alleged comments, he contends that they did not violate the University’s Nondiscrimination and Anti-Harassment (NDAH) Policy and that he should not have been forced to resign from his deanship and formally sanctioned as a result of those comments.

Plaintiff is a current tenured professor at, and former Dean of, the University of Georgia’s Grady College of Journalism and Mass Communications. Plaintiff was hired by the University of Georgia (“UGA” or “the University”) to serve as the Dean of Grady College in the Spring of 2001. During the time period, Defendant Michael F. Adams was the President of UGA. Arnett Mace was the Senior Vice President for Academic Affairs and Provost at UGA....

On May 18, 2005, Janet Jones Kendall (“Kendall”), an employee of Grady College in external affairs, presented Plaintiff with a letter complaining that he had made two comments which she contended (1) were offensive to her and (2) created a hostile work environment. Upon receiving the letter, Plaintiff immediately forwarded it to the UGA Office of Legal Affairs (“OLA”), which then began an investigation of Kendall’s allegations____ The allegations mentioned in Kendall’s letter became the sole basis for an eventual finding by the OLA that Plaintiff violated UGA’s NDAH Policy. The two comments were made, respectively, seven months and one month before Kendall wrote the letter complaining about them, but shortly after her supervisor had complained of Kendall’s work. There is no evidence that Kendall objected to the comments or asked Plaintiff to refrain from such comments prior to writing. There is no evidence of other comments made by Plaintiff to Kendall that she thought constituted acts of sexual harassment during the four years they worked together.

Plaintiff admits making the comments referenced in Kendall’s letter, but claims that they were not intended to be sexual in nature. The first comment was made on October 14, 2004, at an off-campus University dinner function. Plaintiff stated to Kendall: “You have brown eyes. I don’t believe I’ve ever noticed that before. What color are my eyes.” (The Court will refer to this as [the] “eyes” comment.) Plaintiff explained to Washington during the investigation that he made the “eyes” comment in the context of a discussion about his recent Lasik eye surgery, and did not intend it to be a sexual advance.

The second comment was made six months later at a large, off-campus event in Atlanta, the “Capital Campaign Kickoff,” on April 14, 2005. Plaintiff said to Kendall: “That is a nice dress. It really shows off your assets.” (The Court will refer to this as the “assets” comment.) Plaintiff contends that he did not mean the “assets” comment in a sexual way. Just before making the comment, Plaintiff had been talking about assets disputed in his pending divorce.

From May 18, 2005 to June 29, 2005, the UGA OLA conducted a sexual harassment investigation into the allegations made by Kendall against Plaintiff. The complaint was assigned for investigation to Kimberly Ballard-Washington (“Washington”), the former Associate Director for the UGA OLA.... Washington made the finding that Plaintiff violated the NDAH policy by committing sexual harassment as defined by the policy.

The parties have included facts in their filings regarding several other incidents that Washington uncovered in her investigation, even though as noted above, the finding of a violation of the NDAH policy relied only on the “eyes” and “assets” comments. First, it was alleged that Plaintiff made comments to others about Kendall being pictured in a magazine published in Athens, “Athens Magazine,” and that Plaintiff had a copy of the magazine in his office. In the magazine, Kendall wore only a bathing suit. She was working for the UGA College of Journalism at the time she posed for the magazine. Second, Washington was informed that Plaintiff requested that Kendall hand out awards at the Peabody Awards event, an annual function of the Grady School of Journalism. Kendall told Washington that she believed the request that she present the awards was based on her appearance, and that she had refused to do as requested. Third, Kendall told Washington that she had been told that, at a Christmas party, Plaintiff said to a group that, “if [Kendall] was here, all this food would be gone.” According to Kendall, as reported by her to Washington, she had also been told that Plaintiff went on to say, “I don’t know how she does that [eat so much] and keep that figure or keep that body or something of that nature, she must purge.”

On May 12, 2005, six days before she gave Plaintiff the letter containing her sexual harassment complaint, Kendall was reprimanded by her supervisor, Sherrie Whaley, for sending inappropriate emails to various people outside of the University and for her tone in dealing with Plaintiff and Whaley.... It was Washington’s perception that prior to Kendall’s making her complaint, Kendall and other employees in her department had become frustrated because supervision of them had recently increased. According to Whaley, Kendall had a “poor attitude” and was “not doing her job” around the time she made the complaint against Plaintiff. One employee interviewed by Washington, Sandy Mayfield, stated to Washington that Kendall had a “pattern” of filing complaints against employers in response to supervision____

According to Plaintiff, on June 16, 2005, Washington told him in a telephone conversation that “they were going to find him in violation of the sexual harassment policy.” Plaintiff assumed that Washington was referring to Mace and Adams.... Plaintiff claims that this telephone conversation was the first time he had any indication that be would not be exonerated of the charges of sexual harassment.

Also on June 16, 2005, Plaintiff received a call from Kelly Simmons, a reporter for the Atlanta Journal Constitution (“AJC”). Plaintiff contends that Simmons had “a considerable amount of the details” regarding the investigation. On June 17, 2005, during the time that the UGA OLA was still investigating the sexual harassment complaint against Plaintiff, the AJC ran an article that revealed that UGA was investigating Plaintiff for sexual harassment. The article quoted Mace as confirming the existence of the investigation. According to Washington, UGA’s NDAH policy requires that a sexual harassment allegation remain confidential until an official finding is made, and that information about an investigation not be released to the press until ten days after the official finding. It is undisputed that information about the sexual harassment complaint against Plaintiff was leaked to the press before that time, but the source of the information is unknown.

After hearing from Washington and AJC Reporter Kelly Simmons, Plaintiff contacted Mace via email; in that email, he asked whether Mace wanted him to resign his position as Dean.... Plaintiff contends that this email was not an offer to resign, but a means for Plaintiff to try to determine how serious Mace considered the situation. At 11:36 p.m. on June 16, 2005 ... Plaintiff received a voicemail message from Mace, telling Plaintiff that Adams doubted his effectiveness as a dean. Plaintiff called Mace the next morning, June 17, 2005, at which time Mace told Plaintiff that he had to consider the option of resigning.

Washington was in contact with Provost Mace and President Adams during the course of the investigation. Mace’s involvement with the OLA investigation began within a few days following the opening of the investigation, and he was updated on the facts of the investigation when he called Washington. While Plaintiff infers that this contact was improper, he asked Mace to find out what was happening. Further, Defendants contend that this communication conformed with common practice, because Mace served as Plaintiffs immediate supervisor. The NDAH Policy, in fact, requires the NDAH Officer to “keep the supervisor/administrator informed of the status of the complaint and [to] seek input from the appropriate supervisor/administrator when implementing corrective action.” The NDAH Officer is the Executive Director of the OLA, Mr. Stephen Shewmaker, and/or his designee. In this case, Washington was his designee.

Nevertheless, Mace acknowledged that the Provost is not to have any role in the investigation of a potential violation of the NDAH policy; rather, the Provost’s role is to act upon findings made by the OLA. Mace testified that expressing his opinion to the UGA OLA could compromise a sexual harassment investigation, and that if he were to make a statement to the UGA OLA about what should occur in such an investigation, it would put the OLA in a difficult position because he is the number two officer at UGA....

Following a June 20, 2005 meeting involving the matter between Plaintiff, his attorneys, and Mace and OLA attorneys, on or around June 21, 2005, Adams, Mace, Washington, and Steve Shewmaker, the University Director of OLA and Washington’s supervisor, participated in a telephone conversation pertaining to the status of the investigation into Kendall’s complaint about Plaintiff.... Provost Mace told Adams during the investigation that the allegation against Plaintiff was “serious and that there was likely to be a finding of guilt.” ... Adams testified at his deposition that, “[w]hen he made me aware of the language, it sounded to me to be a violation of the policy.”

Between June 20 and 21, 2005, three meetings were held involving Provost Mace, attorneys from the University OLA and Plaintiff and his attorneys. The sexual harassment investigation was not completed at the time of these meetings. Over the course of the meetings, Mace made four points to Plaintiff. The content of Mace’s points is undisputed. His first point was that deans serve at the pleasure of the Provost and President. His second point was that he had already disclosed to President Adams that there was a potential violation of the University’s NDAH Policy. Mace’s third point was that Mace believed that there was a “definite violation” based on witnesses to the “eyes” comment. His fourth point was that, based on his opinion, there had been sexual harassment as defined within UGA’s policy. In these meetings, there was no chance for Plaintiff to discuss the facts related to Kendall or her charge against him.

Present at the first meeting were Provost Mace, Washington, Shewmaker, Plaintiff, and Plaintiffs attorneys Thomas Rogers and Thomas F. Hollingsworth III. Mace began the meeting by stating that it was a preliminary meeting and that there would be a meeting later the same day at 2:30 p.m., at which time Mace would provide Plaintiff with a letter regarding what actions Provost Mace would take in connection with the sexual harassment allegations made against Plaintiff. Mace described his options for disciplining Plaintiff were there to be a finding against him. Mace told Plaintiff that he had determined that the complaint of sexual harassment was valid. Mace then told Plaintiff that if Plaintiff resigned both his faculty position and his deanship, the case would not go forward, and no finding of sexual harassment would be made. Mace asked for Plaintiffs resignation, and Plaintiff responded that he was not guilty of sexual harassment and had no intention of resigning from his position.

A second meeting was held later the same day, at 2:30 p.m. Present were Mace, Washington, Shewmaker, Plaintiff, and Plaintiffs attorney Thomas Rogers. Mace began the meeting by stating that he had met with President Adams about Plaintiff, and that it needed to be clearly understood by everyone in the room that deans serve at the pleasure of the President. Mace told Plaintiff that he had disclosed to President Adams that there was a potential violation of the University’s NDAH policy. Mace told Plaintiff that if he were to resign his Dean position, he would be able to retain his faculty position. Also at the second meeting, Mace read from a letter from former Provost Karen Holbrook to Plaintiff at the time he was hired as Dean. The letter contained an agreement to provide a year of paid time off after Plaintiff resigned from his deanship and before he returned to the classroom. It also addressed Plaintiffs compensation upon return to the faculty after he resigned his deanship. Mace told Plaintiff that the benefits promised in the Holbrook letter were only operative if he resigned as Dean and that the letter had no applicability if he were terminated as Dean. Plaintiff did not agree to resign his deanship at the second meeting. Instead, he asked that he have time to think about his options and to discuss the situation with his attorneys. Mace and Plaintiff agreed that the same group would reconvene the next day at 1:00 p.m.

On June 21, 2005, the third meeting took place in Provost Mace’s office. Present were Mace, Shewmaker, Washington, Plaintiff, and Plaintiffs counsel.... Mace told Plaintiff that if he were to resign immediately as Dean effective June 30, 2005, the provisions of the letter from Dr. Holbrook would be honored.

Plaintiff contends that at this time, because Mace had expressed an opinion on his guilt, because Mace and Adams were involved in the investigation, and because information about the investigation had been released to the media, Plaintiff had concluded that his working conditions had become so intolerable that he had no choice but to resign or be falsely labeled a sexual harasser. Plaintiff further contends that, before he verbally resigned, Mace threatened to fire him as a faculty member without the protection of the tenure process, and that he threatened to ruin Plaintiffs reputation and academic career. On June 21, 2005, Plaintiff agreed to resign his position as Dean, under the condition that the terms of the resignation would be as set out in the Holbrook letter. Plaintiff submitted his letter of resignation on June 27, 2005.

Plaintiff claims that during the third meeting with Mace, it was agreed that the University would not find Plaintiff in violation of the NDAH policy, and that everything OLA was to write about Plaintiff would be positive.

On June 29, 2005, Washington made an official finding that Plaintiff had violated the NDAH policy and issued a letter to Plaintiff to that effect. UGA found that Plaintiffs comments (the “eyes” comment and the “assets” comment) created a hostile work environment for Kendall. In determining that Plaintiff engaged in sexual harassment, Washington applied a subjective test; she asked what effect the comments had on Kendall, and found that the comments made Kendall feel uncomfortable. Defendants point out that in addition to Kendall’s subjective feelings, Washington relied on Plaintiffs admission that he made the statements alleged, and also took into account the magazine statement, the Christmas Party statement, the Peabody Award issue, and the fact that Plaintiff regarded Kendall as attractive. The purpose of referencing this additional information was to give foundation to the finding and to the effect the comments had on Kendall.

While the University’s NDAH policy defines sexual harassment in the same way that Title VII defines sexual harassment, Defendants contend that “sexual harassment” as defined by the NDAH policy is not a legal term of art, and that there can be a finding of sexual harassment under the NDAH policy on facts insufficient to support such a finding under Title VII. Plaintiff disputes this, as do UGA’s in-house lawyers. According to Washington, the University must apply the standards of Title VII; UGA is bound by Supreme Court and Eleventh Circuit precedent in interpreting Title VII as it relates to sexual harassment, and she applied Eleventh Circuit precedent when finding Soloski violated the University’s sexual harassment policy. James Burns Newsome, Vice Chancellor for Legal Affairs at the Board of Regents of the University System of Georgia (“BOR”), “would expect” Eleventh Circuit case law interpreting Title VII to apply in Plaintiffs case. Plaintiff claims that during the three meetings held in Mace’s office, there was no discussion about the law governing whether Plaintiff had committed sexual harassment. Plaintiff contends that the NDAH sexual harassment policy references Title VII and must be applied consistently with Title VII precedents.

On June 29, 2005, Plaintiff was reprimanded and sanctioned by Mace by a formal letter of reprimand and an order for Plaintiff to attend sexual harassment training. This letter went into Plaintiffs permanent personnel file.

On July 13, 2005, pursuant to the NDAH policy ... Plaintiff appealed the finding that he committed sexual harassment to Adams. On July 21, 2005, Adams denied Plaintiffs appeal. It is undisputed that Adams did not examine the OLA’s witness statements or investigative notes when conducting his review of Plaintiffs appeal. He recalled reviewing a letter from Plaintiffs counsel, Thomas Rogers, in which Plaintiff admits to having made the comments at issue. Adams could not specifically remember what else he reviewed, but upon considering the “eyes” and “assets” comments, Adams “saw no basis to set aside the conclusion that had been reached.”

Additionally, Adams had discussed Plaintiffs potential resignation with Mace prior to Plaintiffs appeal, and Adams was under the impression that Plaintiff and Mace had negotiated an arrangement surrounding Plaintiffs resignation. In making his decision on Plaintiffs appeal, Adams believed he was upholding “the agreement that seemed to have been worked out between [Plaintiff] and Dr. Mace.” Because of this belief, Adams only took a “cursory look” at Plaintiffs appeal file. Adams wrote Plaintiff a letter denying his appeal which states, “The record indicates that there were inappropriate comments made by you.” Adams concluded that those comments, the “eyes” and “assets” comments, constituted sexual harassment under UGA’s policy.

On August 19, 2005, Plaintiff filed an application for review with the BOR.... The Office of Legal Affairs at the BOR (“BOR OLA”) is responsible for presenting applications for review in sexual harassment cases to the Organization and Law Committee for the BOR. Upon receipt of an application for review, the committee ... can either grant a hearing or deny the application.

Elizabeth Neely is the former Associate Vice Chancellor for the BOR OLA. Neely testified that within the OLA, there were differences of opinion as to whether Plaintiff should have been granted a name-clearing hearing, and that she “considered very seriously trying to give him a name-clearing hearing.” Other OLA employees believed that Plaintiff was not entitled to a hearing on the basis that he had resigned from his position as Dean rather than being removed, and that a name-clearing hearing would be an unnecessary media circus. Ultimately, the BOR declined to review UGA’s finding and Adams’ decision to deny his appeal, as requested by Plaintiff....

In March 2005, as Dean of Grady College, Plaintiff sent a letter to Leonard Reid, offering him a higher salary in order to keep him at Grady.... The offer to Reid was that should he stay at Grady College, he would [receive his salary over a twelve-month period but only work nine months out of the year]....

Provost Mace set Plaintiffs salary at $130,015 for the 2006-2007 academic year, the year Plaintiff returned to teaching. Professor Reid’s salary for the 2006-2007 academic year was $190,000. Plaintiff argues that his agreement with then-Provost Holbrook did not limit Plaintiffs salary upon return to teaching to professors on academic appointments, but included all professors in the Grady College. Further, Plaintiff contends that he did not choose to be appointed on an academic year basis, but that Provost Mace insisted that Plaintiffs letter of resignation include that language, under threat of a finding of sexual harassment.

Plaintiff also alleges that UGA treated him differently from the manner in which it treated Dwight Keith Parker, another UGA employee who was investigated for sexual harassment. According to Plaintiff, Parker is African-American, and Plaintiff is white. Both Plaintiff and Parker were charged with engaging in sexual harassment pursuant to UGA’s NDAH policy in 2005. Parker, however, was found not to have violated the sexual harassment provision of the NDAH policy.... Both investigations were conducted by Kimberly Ballard-Washington for the UGA OLA. Parker and Plaintiff each have a Ph. D., and each holds the rank of Full Professor. During 2005, Parker was Associate Vice President of Academic Affairs and Associate Provost. Plaintiff was Dean of UGA’s Grady College of Journalism. During Mace’s tenure as Provost, Parker and Plaintiff are the only two administrators at UGA who were ever investigated for sexual harassment under the NDAH policy.

The allegation against Parker involved a trip he took with a female UGA graduate student to attend a conference in Washington, D.C. The student alleged that during the trip, Parker first engaged in “footsies” with her, rubbing his feet against hers. Later, he invited the student to sleep in his hotel suite. It is undisputed that both did sleep in the same suite and that this was a violation of UGA’s travel policy. The student explained to Washington that Parker again physically touched her by massaging her feet with his hand. He told her that she “looked like she was the type of girl who liked to have fun.” On August 23, 2005, Washington concluded that Parker’s conduct did not constitute sexual harassment. Washington explained that she made this finding because Parker denied any sexual misconduct, making this incident a “he-said-she-said” scenario....

Both Parker and Plaintiff were alleged to have made sexually inappropriate comments, and to have made them off-campus. Both Parker and Plaintiff denied any sexual intent toward the respective complainants. The OLA finding for the Parker incident was made on August 23, 2005. The finding for the Soloski incident was made on June 29, 2005. Plaintiff resigned following the OLA investigation against him, and Parker was terminated after tendering, and then withdrawing, his resignation.

Plaintiff complained to Mace and the UGA OLA during his meetings with Mace of June 20, 2005 that he was being treated more harshly than Parker had been because he was not African American. A June 24, 2004 UGA memo alleges that a number of sexual harassment complaints had been made against Parker. ... Parker, however, was not found in violation of UGA’s sexual harassment policy....

On November 3, 2005, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging that he had been discriminated against by his employer, Defendant BOR, because of his race (White) in violation of Title VII. Plaintiff filed an Amended Charge of Discrimination with the EEOC on July 19, 2006, alleging that he had been retaliated against by the BOR for having opposed unlawful employment practices, in violation of Title VII. On August 28, 2006, Plaintiff received a Notice of his right to sue from the EEOC with regard to his Charge and Amended Charge.

According to Plaintiff, Defendants’ finding against Plaintiff caused him intense feelings of embarrassment and humiliation. He testified that in academia, “being found a sexual harasser is akin to being a pedophile.” Plaintiff claims that during the June 20 and 21, 2005 meetings ..., Defendants bullied and intimidated him into resignation with threats to label him a sexual harasser.

Plaintiff also contends that Defendants represented to him that if he resigned, there would not be a finding that he committed sexual harassment, and that upon his resignation they would write a positive letter for him and he would not receive a formal reprimand. Plaintiff claims that he made the decision to resign in reliance on Defendants’ representation that if he did, there would not be a finding of sexual harassment. Subsequently, the OLA made the finding that he had violated the NDAH policy.

R & R, pp. 1324-34 (internal citations and footnotes omitted).

Standard

The District Court conducts a de novo review of the R & R prepared by the Magistrate Judge. Summary judgment is proper when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Resolving all doubts in favor of the nonmoving party, the court must determine “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge....” Id.

Discussion

I. Plaintiffs Mandamus Claim

In Count I of plaintiffs fourth amended complaint, plaintiff asks for a Writ of Mandamus pursuant to O.C.G.A. § 9-6-20 to compel defendants to rescind, recant, and expunge UGA’s official finding that he violated the University’s NDAH policy. “Mandamus provides extraordinary relief to compel the performance of an official duty. It does not issue to direct a public official to do a discretionary act unless such discretion has been grossly abused." Tamaroff v. Cowen, 270 Ga. 415, 511 S.E.2d 159, 160 (1999)(empha-sis added). Under applicable Georgia law, mandamus will issue against a public officer: (1) when there is a clear legal right to the relief sought; or (2) when there has been a gross abuse of discretion. Jackson County v. Earth Res., Inc., 280 Ga. 389, 627 S.E.2d 569, 571 (2006).

The Magistrate Judge made the recommendation to grant plaintiffs request for a writ of mandamus under the “gross abuse of discretion” standard. (R & R, p. 1344.) After finding that defendants’ decision to find plaintiff in violation of the NDAH policy was discretionary, the Magistrate Judge sought to determine whether defendants’ actions should be overturned through mandamus as “arbitrary, capricious, and unreasonable.” Pruitt v. Meeks, 226 Ga. 661, 177 S.E.2d 41, 43 (1970). One such example of a gross abuse of discretion occurs where there has been “[a] clear error in judgment or the application of an incorrect legal standard.” Cotton v. Jackson, 216 F.3d 1328, 1332 (11th Cir.2000). The Magistrate Judge determined that because defendants did not adhere to the legal standard laid out in the NDAH policy, they had committed a gross abuse of discretion and the OLA’s finding was subject to reversal through a writ of mandamus. Specifically, the Magistrate Judge concluded:

While [plaintiff] was told that he was being charged with violating the NDAH policy, which references Title VII, he was in fact investigated and found guilty under a standard completely different from the Title VII standard. The NDAH policy gave Plaintiff notice of the charges against him by defining sexual harassment as it is defined under Title VII. Because OLA (and those who reviewed its decision) did not apply the policy in any way remotely consistent with Title VII, its decision was the result of a gross abuse of discretion leading to a defect of legal justice under O.C.G.A. § 9-6-20 and authorizing the issuance of a writ of mandamus to correct it.

R & R, p. 1338.

In response to the Magistrate Judge’s findings, defendants argue that there was neither a clear error in judgment nor an incorrect application of the applicable legal standard by the NDAH Officer. Specifically, defendants argue that the NDAH policy includes both the definition of sexual harassment found within Title VII as well as further specific examples enumerated within the policy. Defendants argue that because the NDAH Officer made her determination consistent with the examples included within the policy, she did not apply an incorrect legal standard or abuse her discretion.

After reviewing the University’s NDAH policy and the UGA OLA’s application of the policy during its investigation of plaintiff, the Court agrees with the Magistrate Judge that the University applied the incorrect standard for evaluating whether plaintiff had engaged in sexual harassment. Defendants claim that plaintiff engaged in sexual harassment based on one of the “[ejxamples of sexual harassment” listed within the NDAH policy. (Def.’s Ex. 12, p. 2.) The specific example cited by defendants includes “remarks of a sexual nature about one’s clothing and/or body” as one possible instance of “[sjexual advances, physical or implied, or direct propositions of a sexual nature.” (Id.) Even though plaintiffs conduct arguably falls within this example, the Court agrees with the Magistrate Judge that the example cannot be read independently of the policy’s entire definition of sexual harassment. The policy’s definition of sexual harassment is defined “[pjursuant to Title VII of the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972.” (Id.) Under a plain reading of the first sentence of the policy’s definition of “sexual harassment” and because defendants fail to present another explanation for the policy’s reference to Title VII and Title XI, the Court finds that the only reasonable conclusion to reach is that the NDAH policy intended to incorporate the definition of “sexual harassment” under Title VII of the Civil Rights Act of 1964, including any interpretations applied by the United States Supreme Court and the Eleventh Circuit Court of Appeals. Further, because the policy does not suggest that its definition of “sexual harassment” extends beyond the definition under Title VII, the provided examples of sexual harassment cannot be considered independent of the way in which “sexual harassment” is defined under Title VII. Rather, the examples only provide a clarification of the types of behaviors that would be prohibited so long as they violate Title VII.

The Court’s and the Magistrate Judge’s conclusion is supported by the testimony of lawyers at the OLA and the BOR. In his deposition, James Burns Newsome, Vice Chancellor for Legal Affairs with the BOR, agreed with the statements that he “would expect Eleventh Circuit case law to apply to any interpretations of sexual harassment in the context of a sexual harassment case in Georgia,” (Newsome Depo. p. 58), that all sexual harassment cases at Georgia universities “have to be considered against the backdrop of Title VII and the federal case law, (Id. p. 98), and that “the University of Georgia has to apply Title VII to any allegation of sexual harassment.” (Id. p. 99.) Similarly, Kimberly Ballard-Washington, the attorney who conducted the investigation of plaintiff at the OLA, agreed with the statement that “the University has to apply the standards of Title VII,” (Ballard-Washington Depo. p. 118), and that she needed “to be aware of how the 11th Circuit construes Title VII in applying the University’s policy.” (Id. at 120.) Thus, the testimony of Newsome and Ballard-Washington establishes that it was reasonable for members of the University’s legal team as well as employees of the University acting in reliance on the NDAH policy to believe that under the policy, “sexual harassment” was defined consistent with its interpretation under Title VII.

Even though the Court recognizes the role of the NDAH policy in “placfing] individuals on notice that harassment of any sort, by any person whether employee, student, or visitor will not be tolerated on the campus and will be met with disciplinary action where found and when appropriate” (Def.’s Objections to R & R, p. 10), the Court also recognizes the necessity of providing those who rely on the policy with guidance as to what constitutes “harassment.” As such, the Court agrees with the Magistrate Judge that “those charged under the [NDAH] policy have a right to notice of the standard under which they will be judged.” (R & R, p. 1339.) Therefore, were the Court to accept defendants’ argument and permit the University to use its own uninhibited discretion, the NDAH policy, as currently written, would allow for a wide range of behavior that is not actionable under Title VII to be classified as sexual harassment. By punishing anything the University considers to be “remarks of a sexual nature about one’s clothing and/or body” without any further limitation or any requirement that a complaint be objectively reasonable, the University would effectively be operating without any limiting standard on its discretion and “those subject to the policy would be unable to govern their conduct in accordance with the expectations set by it, and would be subject to arbitrary enforcement.” (R & R, p. 1340.)

While wide discretion would not necessarily be prohibited and, based on the policy reasons laid out by defendants in their objections to the R & R, may even be advantageous in many circumstances, the Court finds that the current NDAH policy must be read according to its plain meaning, which limits disciplinary conduct to that which would impose liability under Title VII. If defendants desire to encompass more behavior under their definition of sexual harassment, they must not explicitly state that their definition is derived from Title VII. Accordingly, in determining whether defendants abused their discretion in the course of their investigation, the Court will apply a definition of sexual harassment consistent with Supreme Court and Eleventh Circuit Title VII jurisprudence.

In order to establish a prima facie case of a Title VII claim for a hostile work environment based on sexual harassment, an employee must show: “(1) the employee belongs to a protected group ...; (2) the employee was subject to unwelcome sexual harassment ...; (3) the harassment complained of was based upon sex ...; [and] (4) the harassment complained of affected a ‘term, condition, or privilege’ of employment.” Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir.1982)(quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1972)).

Under the fourth element, a plaintiff in a Title VII action must show that his or her work environment was “permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367,126 L.Ed.2d 295 (1993)(quot-ing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). Whether discrimination has rendered a work environment hostile or abusive is determined by the totality of the circumstances, including factors such as “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23, 114 S.Ct. 367. Finally, when determining whether the harassing conduct was sufficiently severe or pervasive, courts must review the factors enumerated in Harris from a subjective and an objective perspective. Under the latter analysis, the court must find that the work environment was hostile or abusive from the perspective of a reasonable person. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.1999).

In his analysis of whether plaintiffs conduct was sufficiently severe or pervasive to affect a term, condition, or privilege of employment, the Magistrate Judge concluded:

[T]here is no judicial authority that this Court is aware of that would suggest that Plaintiffs conduct came anywhere near creating a hostile work environment for Kendall. In fact, Defendants cited no evidence in their finding of sexual harassment or in Adams’ letter denying Plaintiffs appeal that could possibly amount to sexual harassment under any legal standard.

R & R, p. 1341. The Magistrate Judge added that the UGA OLA incorrectly omitted any analysis of whether Kendall’s complaints were objectively reasonable.

Defendants counter by asserting that under factors established by the U.S. EEOC Policy Guidance on Current Issues of Sexual Harassment, it was not unreasonable for the OLA to determine that the comments by plaintiff resulted in a hostile or offensive work environment.

In determining whether the OLA’s determination constituted an abuse of discretion, this Court uses the factors laid out by the Supreme Court in Harris. Defendants’ reliance on the factors established by the EEOC in its 1990 policy guide are not persuasive for several reasons. First, the EEOC Manual itself acknowledges the limits of a hostile environment Title VII claim. The EEOC Manual notes that “[i]n determining whether unwelcome sexual conduct rises to the level of a ‘hostile environment’ in violation of Title VII, the central inquiry is whether the conduct ‘unreasonably interfer[es] with an individual’s work performance’ or creates ‘an intimidating, hostile, or offensive working environment.’ ” The manual goes on to note that “sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.” Finally, in discussing the standard for evaluating harassment, the manual notes that “if the challenged conduct would not substantially affect the work environment of a reasonable person, no violation should be found.”

Aside from the language within the EEOC Manual, the version of the manual quoted by defendants was written three years before the Supreme Court elaborated on hostile work environment claims under Title VII in Harris. Thus, the Supreme Court’s decision in Harris would supercede any agency interpretation of existing Title VII law created prior to the Supreme Court’s decision. However, as in the EEOC Manual, the Court in Harris noted the difficulty of establishing a hostile work environment claim, stating that the “ ‘mere utterance of an ... epithet which engenders offensive feelings in a employee’ does not sufficiently affect the conditions of employment to implicate Title VII.” Harris, 510 U.S. at 21, 114 S.Ct. 367 (quoting Vinson, 477 U.S. at 67, 106 S.Ct. 2399).

Applying the Harris factors, this Court finds that the OLA abused its discretion by finding that plaintiff had engaged in sexual harassment. Under the first factor, “frequency of the discriminatory conduct,” id. at 23, 114 S.Ct. 367, Kendall’s complaint was based on two separate comments that occurred six months apart from each other. As such, the Court agrees that “the paucity of the comments here precludes a finding that the workplace was ‘permeated with discriminatory intimidation, ridicule, and insult.’ ” (R & R, p. 1341.) Under the second factor, the severity of the discriminatory conduct, plaintiffs actions do not appear to be severe under an objective analysis. Even though the “assets” comment could conceivably be in reference to Kendall’s physical appearance under an objective analysis, plaintiffs “eyes” comment would not be characterized as severe by any objectively reasonable person.

Even though the OLA also considered plaintiffs possession of a magazine with Kendall posing in a swimsuit and plaintiffs accompanying statement that “that is why we hired her,” plaintiffs comments about Kendall’s body at a holiday function insinuating that she was bulimic, and plaintiffs request for Kendall to be a presenter at the Peabody Awards, the first two additional incidents cannot be characterized as severe because they did not involve direct confrontations between plaintiff and Kendall, but rather were comments supposedly made by plaintiff to third parties. Further, even Ballard-Washington agreed with the statement that “it would be reasonable for people to comment on” plaintiffs picture in a swimsuit, (Ballard-Washington Depo., p. 74). Similarly, the third additional incident, in which Kendall was requested to be a presenter at the Peabody Awards, was only subjectively interpreted by Kendall to reference her appearance, was actually made to Kendall by an individual other than plaintiff, and would not, in itself, be considered “severe” under any objectively reasonable analysis. Further, the subjective “severity” of these additional incidents is called into question by the fact that Kendall did not even reference them in her complaint regarding plaintiffs behavior.

Under the third Harris factor, “whether [plaintiffs conduct] is physically threatening or humiliating, or a mere offensive utterance,” id., all of plaintiffs alleged behavior would be properly classified as, at most, “offensive utterances.” At no time did plaintiff act in a manner that was physically threatening or humiliating.

Finally, under the fourth Harris factor, “whether [plaintiffs conduct] unreasonably interferes with an employee’s work performance,” id., the OLA presented no evidence that Kendall’s work performance was impaired by plaintiffs conduct.

Based on a review of these factors, the Court concludes that an objectively reasonable person would not conclude that plaintiffs conduct created a hostile work environment for Kendall. OLA’s finding to the contrary is explained by the fact that it is not clear that the Office conducted a full objective inquiry. Even though in its Letter of Determination the OLA stated “it was reasonable ... for the complainant to believe that sexual advances were being directed towards her,” (P. Appx. C.66), the OLA reached this determination in a conclusory manner, merely stating that “the evidence suggested]” (Id.) such a finding without any further analysis. Moreover, Ballard-Washington’s use of any objective analysis is called into question by the fact that she “believe[d] that the determination of whether a sexual advance was being made or not made should be viewed from the perspective of the complainant.” (Ballard-Washington Depo., p. 46.)

In the final portion of its discussion regarding plaintiffs request for a writ of mandamus, the R & R determines that the OLA’s failure to apply the appropriate legal standard during its investigation was arbitrary, capricious and unreasonable and, accordingly, constituted an abuse of discretion. Specifically, the Magistrate Judge notes that “it is a gross abuse of discretion to find one guilty of sexual harassment under a policy that incorporates Title VII without at least going through the motions of applying the facts of a case to the well understood Title VII law.” (R & R, p. 1341.) Citing Campbell v. Fulton County Bd. of Regist. & Elec., 249 Ga. 845, 295 S.E.2d 80 (1982), the Magistrate Judge determined that the OLA’s failure to comply with the NDAH standard justified granting plaintiffs request for a writ of mandamus requiring defendants to rescind their findings and to expunge their records of all findings that plaintiff violated defendants’ sexual harassment policy.

In response, defendants list a series of reasons why the OLA’s interpretation of the NDAH policy was not an abuse of discretion, none of which this Court finds persuasive. Defendants first argue that “the [Magistrate] Judge does not provide any law or authority which would establish or address what language is required to [put] Plaintiff on notice that UGA intends to and would find Plaintiffs admitted actions violative of the policy.” (Def.’s Resp. to R & R, p. 11.) However, the Court need not instruct defendant on how to rewrite their policy to cover the conduct at issue. It is only necessary for the Court to determine whether it was an abuse of discretion to find that the conduct was covered by the current policy as written by the University.

Defendants next argue that it is impossible to find a gross abuse of discretion where “there is no case law cited which explains what might be required [within the policy] beyond the inclusion of specific examples of conduct.” (Def.’s Resp. to R & R, p. 12.) However, defendants’ claimed lack of guidance concerning the appropriate standard to follow is undermined by the fact that Ballard-Washington believed that, as an investigator for the OLA, she was required to apply interpretations of Title VII from the Supreme Court and the Eleventh Circuit Court of Appeals. See supra pp. 1299-1300. These self-imposed guidelines provided a limit to the OLA’s discretion.

Defendants next contend that the R & R, if upheld, would require the University to find behavior that was sufficiently severe and pervasive to establish liability under Title VII before the University could subject any employee to discipline for sexual harassment. Defendants argue that this undermines the preventative purpose of sexual harassment policies, as understood by the Supreme Court and the EEOC. (Def.’s Resp. to R & R, pp. 12-13.) Once again, the Magistrate Judge correctly reached his conclusion based on a reasonable reading of the language of the University’s policy that was chosen by the University. The University is under no legal obligation to define sexual harassment consistent with Title VII. However, the University must clearly express the scope of behavior that would subject an individual to discipline or else it risks violating that individual’s right to procedural due process. Accordingly, the Magistrate Judge’s ruling is merely a determination that once the University sets a standard for its sexual harassment policy, whatever that may be, the University is then required to abide by that standard.

Lastly, defendants argue that the Court should not solely base its decision on the NDAH policy’s one-sentence reference to Title VII and Title IX because that decision runs contrary to the rationale behind the NDAH policy. However, it would be fundamentally unfair to permit the University to discipline an employee for behavior that falls outside the scope of the University’s written sexual harassment policy. Because a plain reading of the policy would only put employees on notice that they were subject to discipline for behaviors that would result in liability “[pjursuant to Title VII” (Def.’s Ex. No. 12, p. 2), disciplinary action for any behavior that would not result in Title VII liability is beyond the scope of the University’s discretion under the current policy.

Because the NDAH Officer conducted its review of plaintiffs sexual harassment allegation using an improper standard and UGA subsequently disciplined plaintiff based upon that improper investigation, this Court adopts the R & R’s finding that defendants have abused their discretion. Accordingly, this Court adopts the R & R’s recommendation to grant plaintiffs request for a writ of mandamus rescinding defendants’ findings and expunging from defendants’ records any indication that plaintiff violated the University’s sexual harassment policy. However, the Court also adopts the R & R’s recommendation that affirmative publicity of the writ of mandamus should not be ordered at this time.

II. Breach of Contract

In Count II of plaintiffs fourth amended complaint, plaintiff alleges that defendants deprived him of his rights to procedural due process by terminating his deanship and by finding that he was in violation of the University’s NDAH policy without granting him a name-clearing hearing. Plaintiff alleges that his right to procedural due process arises under both the United States Constitution and under the contractual terms of his “Contract for Faculty Ranked Administrators.” In his R & R, the Magistrate Judge recommended that summary judgment be granted for defendants on Count II because plaintiffs contractual right to due process was terminated at the time he resigned from his position as Dean of Grady College, because he lacked a protected property interest in his deanship position, and because there was no “deprivation” of a property interest where he resigned from his position as dean.

A. Contractual Due Process

The Magistrate Judge first addressed plaintiffs claim for denial of contractual due process. In his claim, plaintiff asserts that his deanship contract “is made expressly subject to the applicable ... bylaws and policies of the Board of Regents.” (Def.’s Ex. 1.) In turn, § 802.17 of the BOR Policy Manual provides that “[sjexual harassment of employees or students in the University System is prohibited and shall subject the offender to dismissal or other sanctions after compliance with procedural due process requirements.” (PL’s Br. in Supp. of PL’s First Mot. for Summ. J., App. C.5.) Plaintiff contends that when defendants threatened him with termination as dean, placed a formal letter of reprimand in his personnel file, and required him to attend sexual harassment training, they violated the procedural due process requirements guaranteed to him by the BOR Policy Manual.

The Magistrate Judge’s R & R recommended against finding a breach of contract or a deprivation of due process because plaintiff had resigned his position as dean prior to the imposition of any sanction. The Magistrate Judge determined that, because plaintiff had made the decision to resign as dean in order to retain his position as a faculty member at Grady College and to receive financial benefits promised to him by former Provost Karen Holbrook, plaintiff had made a voluntary decision to terminate his rights under the terms of his deanship contract with the University. Therefore, the Magistrate Judge determined that all of his remaining “contractual rights were as agreed upon in his settlement, not his deanship contract.” (R & R, p. 1345.)

Plaintiff objects to the Magistrate Judge’s findings by asserting that jury questions exist regarding (1) whether defendants breached their contract by denying plaintiff due process prior to his resignation; (2) whether plaintiffs resignation was involuntary and, as a consequence, whether plaintiffs contractual guarantee of due process remained operative; 'and (3) whether a voluntary resignation would necessarily terminate plaintiffs contractual right to due process.

Under plaintiffs first objection, plaintiff claims that the decision to sanction plaintiff and dismiss him from his deanship position occurred prior to his resignation as dean. Plaintiff specifically alleges that Ballard-Washington, the investigator of plaintiffs alleged violation of the NDAH policy, commented to plaintiff while the investigation was ongoing that she would likely find him in violation of the policy. Further, plaintiff alleges that on June 20, 2005, seven days prior to plaintiffs formal resignation as dean, Mace told plaintiff that he would provide him with a letter that day “finding that Plaintiff had committed sexual harassment and setting forth the disciplinary action to which Plaintiff would be subject.” (PL’s Second Statement of Material Facts Not in Genuine Dispute, ¶ 103.) As a result of this premature determination, plaintiff claims that the purpose of the meetings with Mace and members of the OLA on June 20-21, 2005, concerned the terms of his possible resignation or termination as dean. Based on these facts, plaintiff asserts that the decision to sanction and dismiss him preceded his resignation as dean and, therefore, he should have been afforded all of the procedural due process protections guaranteed to him under his deanship contract.

This Court does not find plaintiffs objection persuasive. According to the BOR Policy Manual, plaintiff, as dean, was afforded the requirements of due process for “dismissal” or “other sanctions.” (Pl.’s Br. in Supp. of Pl.’s First Mot. for Summ. J., App. C.5.) Accordingly, plaintiff would only be entitled to due process if he were dismissed or sanctioned prior to his resignation.

None of plaintiffs allegations establishes that he was subject to either dismissal or sanction prior to his June 27, 2005 resignation as Dean of Grady College. Ballard-Washington’s early statement that plaintiff likely would be found in violation of the NDAH policy can not be reasonably construed as either a dismissal or a sanction, but rather as a prediction. Similarly, Mace’s letter on June 20, 2005, detailing likely punishments for plaintiff in connection with the sexual harassment allegations was still conditioned on a final finding by the OLA. Such a prediction of possible punishments pending a final report is neither a dismissal nor a sanction. Rather, Mace’s statements were made as part of a process of negotiation in which plaintiff was enticed to resign so that a dismissal or other serious sanction could be avoided, alleviating the need to provide plaintiff with his contractually guaranteed rights to procedural due process. Plaintiff even admitted during his deposition to the non-conclusive status of the investigation against him at the time of his resignation, noting that “the investigation wasn’t complete.” (Soloski Depo., pp. 63-64.)

Because no official finding had been made regarding whether plaintiff had violated the NDAH policy and because plaintiff had not yet been subject to dismissal or sanction, it is irrelevant that “it was a certainty that Plaintiff would be terminated for sexual harassment if he did not resign his deanship.” (Pl.’s Objections to R & R, p. 7.) Without any formal dismissal or sanction, plaintiff cannot establish that he was deprived of a property interest on June 20 and June 21, 2005. Accordingly, it was impossible for defendants to have any liability for breaching plaintiffs contractual rights during that time period. Rather, it was the mere fact that plaintiff resigned prior to any dismissal or sanction, not the reason behind the resignation, that is determinative of the fact that plaintiff waived any due process protections to which he would have otherwise been entitled under his deanship contract.

Because plaintiffs resignation occurred prior to his sanction by the University, plaintiff would have to establish that the resignation was somehow involuntary in order to show that his contractual rights to procedural due process were not waived. Plaintiff has attempted to do this by claiming that his resignation was, in fact, a “constructive discharge” from his position as dean.

To prove constructive discharge in the context of Title VII, a plaintiff must show that his “working conditions were so intolerable that a reasonable person in [his] position would be compelled to resign.” Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754 (11th Cir.1996)(quoting Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1317 (11th Cir.1989)). For a constructive discharge to be shown, there must be a “high degree of deterioration in an employee’s working conditions, approaching the level of ‘intolerable.’ ” Hill v. Winn-Dixie Stores, Inc., 934 F.2d 1518, 1527 (11th Cir.1991). In the Eleventh Circuit it is extremely difficult to establish a constructive discharge. A resignation will be considered voluntary even where the only alternative to resignation is possible termination for cause, criminal charges, or other unpleasant alternatives “because the fact remains that [the] plaintiff had a choice ... [to] stand pat and fight.” Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir.1995)(quoting Christie v. U.S., Ct. Cl. 333, 518 F.2d 584, 587 (1975)).

When assessing whether a constructive discharge has occurred, the Court must determine whether a reasonable person in the plaintiffs position would feel compelled to resign under the circumstances. Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1450 (11th Cir.1998)(quoting Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1317 (11th Cir.1989)). In Hargray, the Eleventh Circuit established five factors to consider when determining whether a resignation was obtained by coercion or duress. These factors are:

(1) whether the employee was given some alternative to resignation;

(2) whether the employee understood the nature of the choice he was given;

(3) whether the employee was given a reasonable time in which to choose;

(4) whether the employee was permitted to select the effective date of the resignation; and

(5) whether the employee had the advice of counsel.

Hargray, 57 F.3d at 1568. When assessing these factors, courts are instructed to consider the totality of the circumstances. Id.

In the Magistrate Judge’s R & R, he failed to find a constructive discharge of plaintiff from his position as Dean of Grady College. The Magistrate Judge determined that plaintiff resigned his position by choice and that “[h]is available alternative was to wait until the investigation findings were made, contest them with the Provost if adverse, and invoke his contractual due process rights if sanctions were imposed.” (R & R, p. 1346.) The Magistrate Judge noted that by resigning, plaintiff benefitted by guaranteeing his continued employment as a faculty member at Grady College and by receiving certain salary guarantees promised to him by former Provost Karen Holbrook in the event he stepped down from his administrative position.

Applying the Hargray factors, the Magistrate Judge determined that plaintiffs resignation was voluntary because of his alternative option to remain in his position and contest the charges against him under his contractual due process protections, the fact that he understood the nature of the choice before him, the one day period plaintiff was granted to consider his available options, his ability to make the effective date of the resignation several days after the agreement was reached, and his ability to receive the advice of counsel concerning his resignation decision. In tandem, the Magistrate Judge found, these factors established that plaintiff “was not ‘constructively discharged’ as a matter of law, and his resignation terminated his deanship contract.” (R & R, p. 1347.)

Plaintiff objected to the R & R’s recommendation by putting forth evidence that plaintiff believes establishes that he was coerced into resigning by Provost Mace. This Court finds that none of plaintiffs objections support a finding that a genuine issue of material fact exists concerning whether plaintiffs resignation was voluntary.

Plaintiff first argues that it was an absolute certainty that he would be terminated and would not receive the salary benefits promised to him in the letter from Provost Holbrook if he did not resign as dean. This Court, however, agrees with the Magistrate Judge that any finding by the University that would result in plaintiffs sanction or termination would trigger his contractual due process rights in the event he did not resign as dean. As such, his ability to “stand pat and fight,” Hargray, 57 F.3d at 1568 (quoting Christie, 518 F.2d at 587), provided an alternative to his resignation, making his resignation a choice. Further, the fact that the University would not award him the salary benefits promised by former Provost Holbrook if plaintiff was terminated did not constitute an intimidation tactic by the University, but rather was consistent with the language within Holbook’s letter, which only promised plaintiff certain salary concessions in the event he “wishfed] to step out of [his] administrative role and return to [his faculty position].” (Def.’s Ex. 7.) Holbrook’s use of the term “step out” implies a voluntary recusal and does not contemplate plaintiffs forced removal from his position.

Plaintiff next argues that