Opinion
C. A. 4:21-cv-1879-RBH-KDW
05-21-2024
Yan Lyansky, Plaintiff, v. Coastal Carolina University, and Dr. Michael H. Roberts, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
This employment-related matter is before the courtfor consideration of Defendants' Motion for Summary Judgment. ECF No. 157. Plaintiff, appearing pro se, began this litigation by filing a Complaint on June 21, 2021. ECF No. 1. Because Plaintiff is proceeding without representation the undersigned reviewed Plaintiff's initial pleading and determined additional information was required to bring his case into proper form. The court authorized service of the Complaint. ECF No. 13. After service had been effected, Defendants Coastal Carolina University (“CCU”) and Dr. Michael H. Roberts (“Roberts”) (collectively “Defendants”) made a Motion for a More Definite Statement, ECF No. 34, which Plaintiff conceded was appropriate, ECF No. 35. The court granted the Motion for a More Definite Statement and instructed Plaintiff to file an Amended Complaint. ECF No. 38. On February 4, 2022, Plaintiff filed his Amended Complaint, in which he includes various federal- and state-law-based causes of action arising out of his prior employment as an educator employed by Defendant CCU. Am. Compl., ECF No. 41. After briefing the court granted Defendants' Motion for Partial Dismissal, dismissing the Title VII and Americans with Disabilities Act (“ADA”) claims for failure to exhaust administrative remedies. R&R, ECF No. 66; Order, ECF No. 75.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(g) (D.S.C.). Because the Motion is dispositive, this report and recommendation (“R&R”) is entered for the district judge's consideration.
I. Standard of review
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is “material” if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Id. at 248. An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 248. A litigant “cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
As the Fourth Circuit has noted, “[a]s a general rule, when one party files a motion for summary judgment, the non-movant cannot merely rely on matters pleaded in the complaint, but must, by factual affidavit or the like, respond to the motion.” Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Kipps v. Ewell, 538 F.2d 564, 566 (4th Cir. 1976); Fed.R.Civ.P. 56(e)). However, “a verified complaint is the equivalent of an opposing affidavit for summary judgment purposes, when the allegations contained therein are based on personal knowledge.” Williams, 952 F.2d at 823 (citing Davis v. Zahradnick, 600 F.2d 458, 459-60 (4th Cir. 1979)).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson, 477 U.S. at 255. However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass 'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
II. Overview
A. Procedural overview
The court first issued a scheduling order in this matter in March 2022. ECF No. 49. On Defendants' Motion the court issued an Amended Scheduling Order in September 2022, subsequent to the court's order granting Defendants' Motion for Partial Dismissal. ECF No. 86. Numerous discovery-related motions followed: Plaintiff filed several motions seeking responses to discovery requests, ECF Nos. 89, 91, 93; and Defendants filed a motion seeking to compel Plaintiff's attendance at his scheduled deposition, ECF No. 95. The court again extended scheduling deadlines and conducted an informal discovery conference on January 19, 2023. ECF Nos. 98, 103. During that conference the parties clarified their positions as to several discovery-related issues. Defendants clarified that they had provided certain documents requested by Plaintiff, agreed to provide other documents he identified if such existed, and explained that certain information might be obtainable through deposition. See, e.g., ECF No. 106. After considering the parties' positions, the court issued its February 22, 2023 order denying Plaintiff's motions and finding Defendants adequately had responded to Plaintiff's discovery requests. ECF No. 109. The court reiterated to Plaintiff that certain information he seemed to seek might best be obtained through his deposing certain witnesses. Id. The court also discussed the need for Plaintiff to appear for his own deposition or decline to schedule other depositions, explaining that he could not continue to refuse to appear based on his argument he had not received the documents he sought. Plaintiff was reminded that the Federal Rules of Civil Procedure contemplated he would appear in person for his deposition at the place designated by Defendants. Id. at 4. The parties were instructed to confer regarding a proposed revised scheduling order.
Defendants moved for the entry of a Confidentiality Order, ECF No. 114; Plaintiff opposed that Motion, ECF No. 119. Further, Defendants made a motion for a revised scheduling order, advising the court that Plaintiff's refusal to agree to a standard Confidentiality Order had delayed production of certain documents and that Plaintiff had indicated to them that “he [would] not participate in any depositions until he ha[d] those records.” ECF No. 115 at 1. On April 18, 2023, the court granted the Motion for a Confidentiality Order, advising Plaintiff that such orders were regularly issued in employment matters such as this one. ECF No. 120. The court then entered the Confidentiality Order, ECF No. 121, and a revised scheduling order setting May 31, 2023 as the discovery deadline, ECF No. 123. The court specifically advised Plaintiff that his “continued refusal to participate in depositions is at his own peril.” ECF No. 122.
On April 27, 2023, Defendants filed a Motion to Dismiss pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure, seeking dismissal with prejudice based on Plaintiff's failure to comply with or obey a court order to provide or permit discovery. ECF No. 125. Defendants explained that they had noticed Plaintiff's deposition for April 26, 2023. Defendants noted Plaintiff's continued pushback on depositions until he obtained certain evaluation documents he sought. Subsequent to the entry of the Confidentiality Order, Defendants advised they served the requested documents on Plaintiff. ECF No. 125-1 at 4-6. As Plaintiff did not appear at his noticed deposition and did not further communicate with defense counsel regarding his failure to appear, Defendants sought dismissal pursuant to Rules 37 and 41. The court advised Plaintiff that his failure to respond to the Motion to Dismiss could result in his case being ended. ECF No. 126 (citing Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975)). After the May 30, 2023 deadline passed with no communication from Plaintiff the court again reminded Plaintiff of the need for him to respond to the pending Motion to Dismiss, giving him until June 23, 2023 to do so. ECF 131. Plaintiff did not respond. Accordingly, on June 29, 2023, the undersigned issued an R&R recommending Defendants' Motion to be granted and the matter be ended pursuant to Rule 41(b). ECF No. 133.
Plaintiff then filed several responses to the pending Motion to Dismiss, ECF Nos. 135, 137. He also filed another Motion to Compel Discovery. ECF No. 138. The gist of Plaintiff's filings are that he was unaware of the Motion to Dismiss, noting his receipt of mail at his address of record was sometimes delayed. Plaintiff indicated the address of record was a correct address for him but noted he also had an address in Missouri. ECF No. 140. Plaintiff's Motion to Compel again indicated he had not received the information sought from Defendants, particularly focusing on his need for evaluations for all courses taught by other professors, Dr. Bulka and Dr. Subash. ECF No. 138 at 1.
On November 8, 2023, Chief United States District Judge R. Bryan Harwell denied the Motion to Compel, noting it was untimely and discovery had ended on May 31, 2023. ECF No. 145. Chief Judge Harwell noted that the record “include[d] some questionable conduct by Plaintiff regarding his cooperation during the discovery process,” but found the drastic measure of dismissal one he was unwilling to entertain at that time. ECF No. 146. Chief Judge Harwell further ordered, “Defendants are entitled to take Plaintiff's properly noticed deposition and he shall cooperate and attend his properly noticed deposition no later than December 31, 2023.” ECF No. 146. In its Third Amended Scheduling Order, the court further found, “Discovery is closed except for Plaintiff's deposition which shall be completed no later than December 31, 2023.” ECF No. 146. Dispositive motions were due by March 1, 2024. ECF No. 146. After receiving a short extension, Defendants filed the instant Motion for Summary Judgment on March 7, 2024, ECF No. 157, to which Plaintiff has filed opposition, ECF No. 162.
The undersigned has considered the Motion and opposition, including Plaintiff's “Memorandum for the Court” in which he lists various alleged “breaches of the rules of civil procedure” during the discovery phase of this case. Pl. Mem. 5-7. This case has been pending for years, and the undersigned has addressed numerous discovery-related matters, many of which were raised by Plaintiff. Discovery has been closed for months. See ECF No. 146 (Chief Judge Harwell's November 8, 2023 Order noting discovery was closed except for Plaintiff's deposition, which was to take place no later than December 31, 2023). Further consideration of discovery-related issues is inappropriate at this juncture and would not change the undersigned's recommendation that Defendants are entitled to summary judgment.
B. Factual overview
When possible the court derives its factual overview from the facts set forth by the nonmoving party to the extent they have record support. Here, the nonmoving Plaintiff has responded to Defendants' Motion by including several pages in response to what he characterizes as Defendants' incorrect statement of facts. Pl. Mem. at 1-3. Rather than set out a version of facts that is supported by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” as contemplated by Rule 56(c)(1), however, Plaintiff offers his counterpoint to Defendants' facts by painting Defendants' statements as “illogical” or “false” and indicating Defendants “ignore the facts and focus on irrelevant distractions.” Id. At the summary-judgment stage the court considers facts that are undisputed or, if disputed, the court considers the facts in the light most favorable to the nonmoving Plaintiff. This is not to say, though, that the court is to accept Plaintiff's cries of falsehoods or illogic without supporting facts. The court notes that Plaintiff's Amended Complaint has been verified. ECF No. 41 at 55. Plaintiff has sworn that he has “read and understood” the pleading and that he “know[s] the content to be true of [his] own personal knowledge, except for those matters and things set forth upon information and belief, and as to those matters and things, [he] believe[s] them to be true.” Id. Accordingly, as to allegations in the Amended Complaint that are plainly matters as to which Plaintiff has “personal knowledge,” the court will consider them in ruling on the summary-judgment motion. However, to the extent it is unclear that matters pleaded are based on Plaintiff's personal knowledge, they must be regarded “as mere pleading allegations.” Walker v. Tyler Cnty. Comm'n, 11 Fed.Appx. 270, 274 (4th Cir. 2001) (finding it appropriate to consider complaint's factual allegations at summary-judgment stage to the extent they are made on “personal knowledge” but finding allegations as to which it is unclear whether they are made on personal knowledge will be regarded only as pleading allegations).
With this in mind the court sets out the relevant factual background, citing to appropriate portions of the record when possible. This factual overview is not intended to exhaustively catalog every anecdote or argument made by the parties. The undersigned has reviewed all arguments and evidence presented. To the extent appropriate, additional facts are set out in the context of the analysis of Plaintiff's specific causes of action.
In the Spring of 2019, Defendant CCU initiated a job search for a visiting assistant professor to teach in its Department of Mathematics. Plaintiff applied for the position. As part of his application, he submitted a Teaching Letter, see ECF No. 157-2, as well as a cover letter and Curriculum Vitae (“CV”) see Am. Compl. ¶ 26; ECF No. 41-1 at 8-15 (attached to Am. Compl. as Ex. 3). The CV contained information about Plaintiff's academic credentials as well as information about his employment history, including information that he had been a visiting assistant professor at Eastern Oregon University from September 2017 through August 2018 and since January 2019 through the present, he was on the full time faculty at Guilford Technical Community College in Jamestown, North Carolina. ECF No. 41-1 at 9-12. In setting out his employment history, he did not list employment for the period of September through December 2018. Rather, Plaintiff explained, “I became very ill living in the mountains of Oregon. I spent this term recovering from breathing issues.” Id. at 11. In the cover letter he sent CCU Plaintiff also notes, “I have experienced sinus issues for most of my adult life, my breathing is much better near the ocean. Hence Coastal would be an ideal situation for my family.” Cover Letter, ECF No. 41-1 at 8.
Plaintiff testified that the application process was handled online and, as part of the interview process, he gave a teaching lecture. Pl. Dep. 75-76, ECF No. 157-11. In a letter dated June 11, 2019, Defendant Michael Roberts, then-Dean of CCU's College of Science, wrote Plaintiff concerning the position. June 11, 2019 Ltr., ECF No. 41-1 at 4. The letter began as follows:
I am writing to outline our understanding of the conditions of your employment offer from the Department of Mathematics and Statistics at [CCU]. Upon your acceptance of these terms you will receive a letter from the University Provost that will constitute the formal agreement between you and the University.ECF No. 41-1 at 4. After outlining ten conditions, including a notation that the position “is subject to the terms and conditions of the Faculty Manual,” the letter concluded by indicating, “We look forward to your positive response on or before June 18, 2019.” Id. See also Am. Compl. ¶ 32 (indicating the letter is attached as Exhibit 4, although it appears to be included as Exhibit 2).
On August 16, 2019, CCU Interim Provost Daniel Ennis, PhD wrote Plaintiff. That letter provided in part as follows:
Upon the recommendation of Dr. Michael Roberts, Dean, Gupta College of Science, I am pleased to present to you an appointment at [CCU] as a Visiting Assistant Professor of Mathematics.... This offer supersedes any previous offers of employment for academic year 2019/2020.Aug. 16, 2019 Ltr., ECF No. 41-1 at 5. The letter also states, “All appointments are subject to the terms and conditions set forth in the University Policies and Procedures Manual and certain provisions in the Faculty Manual.” Id. Further, the letter explains that “CCU reserves the right to terminate your employment at any time, with or without cause, and with or without notice.” Id. The letter includes detail about salary, benefits, and the teaching load. It also referenced a reimbursement of $1,000 for documented moving expenses that had also been contained in the June 11, 2019 Roberts letter. Id. The letter concludes, “Please sign this letter acknowledging the terms of your employment.” Id. at 6. In addition to Provost Ennis' signature, the letter was signed by Plaintiff on August 19, 2019, under the heading “EMPLOYEE ACKNOWLEDGEMENT,” and “Offer Accepted.” Id. Below the signatures is the statement “NOT A CONTRACT.” Id.
Plaintiff has averred that the “most disturbing condition” regarding CCU's right to terminate at any time had not been included in the “first contract” and such condition “was not discussed and agreed to by both parties.” Am. Compl. ¶ 32. This is discussed, infra.
Plaintiff began teaching at CCU in the Fall 2019 semester. Fall 2019 Math Department Chair Hoffman stated there had been “an unprecedented number of student complaints coming from [Plaintiff's] classes.” Aff. of Dr. Thomas Hoffman (“Hoffman Aff.”) ¶ 3, ECF No. 157-10. Defendants provided several examples of these complaints. See ECF No. 157-3 (student request for makeup exam); ECF No. 157-4 (regarding student having been removed from Plaintiff's class although student had not requested removal); ECF No. 157-5 (regarding student's having been advised by Plaintiff that student would have to “figure it out” when he requested a makeup exam because he was attending his brother's military graduation); ECF No. 157-6 (regarding complaints by a group of students as to issues with assignment due-dates). Hoffman sent several emails to Plaintiff with suggestions regarding his class presentations and instructions about various matters. E.g., ECF No. 157-7 (email advising that Plaintiff should reconsider his offer to permit his students to redo assignments for which the answers already were available to them; also offering specific suggestions of how to “encourage students without giving away grades”). Hoffman also met with Plaintiff. E.g., ECF No. 157-7 at 2 (arranging meeting for September 26, 2019). On October 1, 2019, Hoffman advised Plaintiff he had met with two more of his students regarding Plaintiff's class. Accordingly, Hoffman told Plaintiff he planned to observe Plaintiff's class the following day. ECF No. 157-8.
On October 19, 2019, Roberts and Hoffman met with Plaintiff after Hoffman “had witnessed what can be best described as a disturbing class presentation” from Plaintiff. Hoffman Aff. ¶ 4; Aff. of Def. Roberts ¶ 5, ECF No. 157-9. Roberts and Hoffman said the meeting was intended to “discuss [their] concerns and to offer [Plaintiff] examples of teaching techniques which [they knew had] been successful with other professors willing to improve their classroom presentation techniques.” The meeting lasted about an hour. Roberts and Hoffman indicated it was apparent to both of them that Plaintiff “did not believe that his teaching techniques were the problem. He felt the students were overreacting or incapable of performing the work.” Further, they indicated Plaintiff “made it clear that he had no interest in altering his classroom presentations.” Hoffman Aff. ¶ 4; Roberts Aff. ¶ 5.
In his Amended Complaint Plaintiff noted that Hoffman had “audited” Plaintiff's class and “concluded he had given a poor lecture.” Am. Compl. ¶ 37. Plaintiff indicated that during the evaluation by Hoffman, Plaintiff “was obviously tense and thus performed dismally. This was due to the constant harassment the Plaintiff had experienced. He was then asked to attend a meeting to discuss his performance.” Am. Compl. ¶ 37.
Plaintiff averred that Roberts asked at that meeting why Plaintiff “seemed demotivated.” Am. Compl. ¶ 38. Plaintiff says he “explained that his symptoms were getting worse and his blood pressure had been 190/110 for over a year. He further explained that the last time this happened, he almost died.” Id. Plaintiff indicated that he “promised to do his best,” and he gave remedial classes to his students. He refused, however, to “engage in the harmful [teaching] practice of drilling students.” Id. (referencing student evaluations that indicated his efforts with the students had “paid off”).
Both Hoffman and Roberts testified that at no time during the meeting with Plaintiff did Plaintiff “indicate that he was having any disability related difficulties which may have been affecting his job performance.” Hoffman Aff. ¶ 6; Roberts Aff. ¶ 7. Roberts noted that Plaintiff had “indicated he had moved from the Northwest U.S. due to allergies, at no time during the hiring process or while he was an employee of [CCU] did [Plaintiff] ever indicate that he was physically incapable of performing his job. He never indicated that he was disabled nor did he ever request an accommodation in order to perform the essential functions of his job.” Roberts Aff. ¶ 8; see also Hoffman Aff. ¶ 7. Roberts noted Plaintiff “never sought such accommodations from Human Resources-the office at CCU that would develop any required accommodations for disability related issues with employees[.]” Roberts Aff. ¶ 9. Both Roberts and Hoffman stated they “never considered [Plaintiff] disabled in any form or fashion.” Roberts Aff. ¶ 9; Hoffman Aff. ¶ 8.
At the conclusion of the first semester, Roberts, in consultation with Hoffman, determined it was in CCU's best interest to terminate Plaintiff after only one semester, “[g]iven the magnitude of student discontent with his classes, the high withdrawal rates in his classes, [their] own observation of his teaching techniques and his stated unwillingness to change[.]” Roberts Aff. ¶ 11; see also Hoffman Aff. ¶ 10. Both indicated the termination would require the remaining instructors to assume classes that Plaintiff would have been teaching in the Spring semester. Roberts Aff. ¶ 10; Hoffman Aff. ¶ 9.
In a December 17, 2019 letter signed for CCU by Roberts, Plaintiff was advised that his position would end on December 31, 2019. Termination Ltr., ECF No. 41-1 at 2. The letter advised Plaintiff, “While no reason is required, you are being terminated due to your performance.” Id.
III. Analysis
A. Plaintiff's remaining claims in Amended Complaint
Plaintiff's 56-page Amended Complaint includes 255 numbered paragraphs, 12 numbered paragraphs as a “Prayer for Relief,” and attaches 64 pages of supporting exhibits. Am. Compl., ECF Nos. 41, 41-1. The first page of his Amended Complaint indicates it includes claims for violation of the following federal statutory schemes:
1. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e;
2. Title II of the Americans with Disabilities Act [of] 1990, 42 U.S.C. § 12101;
3. Title VI of the Civil Rights Act of 1964;
4. § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 790.Am. Compl. 1; see also id. ¶ 1 (listing the same statutes). As the Title VII and ADA claims have been dismissed the remaining federal claims appear to be claims made pursuant to “Title VI of the Civil Rights Act of 1964,” and claims pursuant to “Section 504 of the Rehabilitation Act of 1973, 29, U.S.C. § 790.” As an initial matter Title VI of the Civil Rights Act, found at 42 U.S.C. § 2000d, provides in full that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance[,]” and does not seem to apply to the claims set forth by Plaintiff. Nothing in Plaintiff's Amended Complaint specifically explains what he claims would be a Title VI violation, nor does he address Title VI in his opposition to the pending Motion for Summary Judgment. As such, to the extent Plaintiff purports to bring a claim for violation of Title VI of the Civil Rights Act, such claim is subject to the entry of summary judgment in favor of Defendants. The court also notes that Plaintiff's reference to “Title VI” may be intended as a reference to the Family Medical Leave Act (“FMLA”). See Am. Compl. ¶ 136 (quoting a portion of “the Family Medical Leaves [sic] Act, Title VI-SENSE OF CONGRESS Sec. 601. Sense of Congress. SEC 2 o29 U.S.C. 2601”). However, Plaintiff indicates he “did not seek medical leave,” Am. Compl. ¶ 132, and he does not discuss the FMLA in his filings or in opposing summary judgment. To the extent, then, that the Amended Complaint purports to include a claim under “Title VI of the Civil Rights Act of 1964” or the FMLA, such claim or claims are subject to summary judgment in favor of Defendants.
This leaves only Plaintiff's federal claim brought pursuant to Section 504 of the Rehabilitation Act (Am. Compl. ¶¶ 211-23); and his state-law-based claims, which include claims of “misrepresentation, economic duress, and unjust enrichment,” id. ¶¶ 162-85; “employment under contract, at-will employment, breach of contract, legitimate expectation, and wrongful dismissal,” id. ¶¶ 186-210; “libel-defamation of character, negligence, pain and suffering,” Id. ¶¶ 225-39; “intentional infliction of emotional distress,” id. ¶¶ 240-46; and “breach of privacy,” id. ¶¶ 247-52. The court considers these in turn.
B. Rehabilitation Act
The court first considers Plaintiff's only remaining federal-law-based claim: one for wrongful termination in violation of Section 504 of the Rehabilitation Act. Am. Compl. ¶¶ 211-23.Defendants first argue this cause of action is time-barred and thus subject to dismissal. Defs. Mem. 6. Plaintiff's opposition to the Motion for Summary Judgment does not discuss the substance of Defendants' timeliness argument. The undersigned agrees with Defendants that, in this employmentdiscrimination matter, the one-year statute of limitation found in SCHAL is the appropriate limitations period. Plaintiff was terminated at the end of December 2019. He initially filed this litigation on June 21, 2021, more than one year later.
Technically, the Rehabilitation Act claim is included as a subpart of Plaintiff's “Eighth Claim for Relief,” which he entitles “Employment under Contract, At-will Employment, Breach of Contract, Legitimate Expectation, and Wrongful Dismissal.” Am. Compl. p. 40.
On page 4 of his memorandum Plaintiff states, “Defendant [sic] also refers to S.C. statutes in his [sic] filing, however his [sic] claim is mute [sic] as these do not apply in this matter.” Pl. Mem. 4. To the extent this is a reference to Defendants' legal argument that the South Carolina Human Affairs Law (SCHAL) statute of limitations applies to the Rehabilitation Act claims, Plaintiff's argument that they “do not apply” is legally incorrect.
Because the Rehabilitation Act does not contain its own statute of limitations, the court must borrow the statute of limitations that applies to the most analogous state-law claim. See Ott v. Md. Dep't of Pub. Safety & Corr. Servs., 909 F.3d 655, 659 (4th Cir. 2018); Wolsky v. Med. Coll. Of Hampton Roads, 1 F.3d 222, 223 (4th Cir. 1993). Defendants submit that SCHAL's one-year statute of limitations, SC Code Ann. § 1-13-90, applies. Defs. Mem. 6. Courts in this district have found that the SCHAL is the most analogous state-law claim and have thus applied its one-year statute of limitations to Rehabilitation Act claims in employment matters. See, e.g., Summerell v. Clemson Univ., No. 8:22-CV-913-TMC, 2023 WL 6457781, at *3 (D.S.C. Oct. 4, 2023) (adopting recommendation of dismissal of disability-related employment claims brought pursuant to the Rehabilitation Act, finding that one-year SCHAL limitations period applied because “‘SCHAL provides substantially the same rights and remedies as the Rehabilitation Act with respect to employment discrimination claims and is therefore the most analogous state statute in this case'” (quoting R&R)); see also Woods v. S.C. Dep't of Health & Human Servs., No. 3:18-834-MGL, 2020 WL 614076, at *3 (D.S.C. Feb. 10, 2020) (collecting cases).
Here, it is undisputed that Plaintiff was terminated effective December 31, 2019, nearly 18 months before this litigation began. Defendants' Motion for Summary Judgment should be granted as to Plaintiff's claim for Wrongful Termination in violation of Section 504 of the Rehabilitation Act.
In the event the district court were to consider Plaintiff's Rehabilitation Act claim on its merits, the undersigned remains of the opinion that summary judgment is appropriate. Construing all allegations in the Verified Amended Complaint in his favor, Plaintiff asserts he “has been experiencing symptoms of an ailment often presenting with blocked sinuses that would often cause breathing problems and high blood pressure. The Plaintiff is also severely cross-eyed and often had vision impairment when his symptoms became aggravated.” Am. Compl. ¶ 25. He also avers that, when he met with Roberts and Hoffman about his teaching style he advised them that “his symptoms were getting worse and his blood pressure had been 190/110 for over a year.” Id. ¶ 38.
Absent direct evidence of discrimination, Rehabilitation Act claims for discrimination are reviewed under the McDonnell Douglas burden-shifting framework. See Laber v. Harvey, 438 F.3d 404, 430 (4th Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); Perry v. Comput. Scis. Corp., 429 Fed.Appx. 218, 219-20 (4th Cir. 2011). No direct evidence is discussed in this case. Accordingly, to establish discrimination, Plaintiff has the initial burden of establishing a prima facie case. See Perry, 429 Fed.Appx. at 220. To establish this prima facie case, Plaintiff must show that: (1) he is disabled; (2) he was otherwise qualified; and (3) he suffered an adverse employment action solely on the basis of his disability. Hannah P. v. Coats, 916 F.3d 327, 342 (4th Cir. 2019) (citations omitted). If Plaintiff establishes a prima facie case, the burden shifts to Defendants to provide a legitimate, nondiscriminatory reason for their conduct. Id. If Defendants provide such a reason, Plaintiff then “‘bears the ultimate burden of persuasion' and ‘must show by a preponderance of the evidence that the proffered reason was a pretext for discrimination.'” Id. (quoting Perry, Fed.Appx. at 220).
Defendants set out a cogent legal argument that Plaintiff has not set out evidence to establish a prima facie case of disability discrimination under the Rehabilitation Act. Defs. Mem. 7 (noting Plaintiff remained able to perform the essential functions of his job, he had requested no accommodation on account of any disability, and he was terminated based on his teaching performance). In his opposition to summary judgment, citing to no record evidence, Plaintiff generally argues he was “terminated because he was ill,” claiming student evaluationsindicated he was an “excellent faculty member,” and that Defendants “ignore the facts and focus on irrelevant distractions” in arguing he was terminated for other reasons. Pl. Mem. 3.
Plaintiff provides no student evaluations in opposing summary judgment. The court notes that Plaintiff did attach some evaluations as exhibits to his Amended Complaint. See ECF No. 41-1 at 2226. The court also notes that, in the numerous earlier filings regarding discovery Plaintiff has discussed the need for evaluation information regarding other professors. The court has reviewed the proffered evaluations attached to the Amended Complaint and notes they provide what might be considered at best mixed reviews. Id. In any event, accepting Plaintiff's version of the evaluations for purposes of this analysis-that his evaluations showed high performance and those of some colleagues did not- he cannot survive summary judgment as it is the employer's decision regarding his performance that is considered. It is not the court's place to substitute its own judgment. See, e.g., DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998).
The undersigned agrees with Defendants. Even if the Rehabilitation Act claim is considered on its merits summary judgment remains appropriate. Plaintiff has not shown that he was terminated solely on account of any disability. Further, even if it were assumed he could establish a prima facie case, he cannot overcome Defendants' reasonable explanation that his termination was performancebased. “[T]o show pretext, a plaintiff may show that an employer's proffered nondiscriminatory reasons for the termination are inconsistent over time, false, or based on mistakes of fact.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 225 (4th Cir. 2019). At bottom, “it is not [the court's] province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (citation omitted). Plaintiff has not demonstrated the stated reason for his termination was a pretext for terminating him because of a disability as defined by the Rehabilitation Act. Summary judgment should be granted as to the Rehabilitation Act claim.
C. Plaintiff's state-law-based claims
Plaintiff's Amended Complaint indicates the court has jurisdiction over the state-law-based claims based on its supplemental jurisdiction. Am. Compl. ¶ 15. On its face, however, the Amended Complaint indicates the court also has diversity jurisdiction pursuant to 28 U.S.C. § 1332, as Plaintiff indicated he was in North Carolina at the time of the Complaint, Defendants are located in South Carolina, and Plaintiff seeks over $75,000 in damages.
1. Breach of contract
In addition to the above-discussed Rehabilitation Act claim, Plaintiff's “Eighth Claim for Relief” includes several subsections, including “Employment under Contract,” “Breach of Contractual Agreement,” and “Legitimate Expectation.” Am. Compl. ¶¶ 187-210. Defendants seek summary judgment as to these breach-of-contract-related claims. Defs. Mem. 4-5.
As an initial matter, Defendants concede a point Plaintiff seemed to be making in the “Employment Under Contract” subsection: that the “second contract” he had with CCU was, in fact, a contract despite the disclaiming “NOT A CONTRACT” statement below the signature line. Am. Compl. ¶¶ 187-199. In response to that portion of Plaintiff's Amended Complaint, Defendants agree, citing Hall v. UBS Financial Services, 866 S.E.2d 337 (S.C. 2021). In Hall, the court found that “[a]ll at-will employment relationships, whether they are memorialized in a written contract stipulating the at-will nature of the employment or orally formed simply out of circumstance, are contractual relationships.” Id. at 341. The Hall court continued, indicating, “of course, our recognition that at-will relationships are contractual does not alter the established rule allowing an employer to discharge an at-will employee for any reason without incurring liability. That is because under South Carolina law, the right to fire the employee at any time and for any reason is an integral term of the at-will contract.” Id. at 342.
Plaintiff submits he was not an at-will employee because of his “contracts”-he seems to argue he had two contracts with CCU, the first being the June 11, 2019 Letter from Roberts and the second being the August 16, 2019 letter sent and signed by Interim Provost Ennis on behalf of CCU and signed as accepted by Plaintiff on August 19, 2019. Pl. Mem. 3. Plaintiff argues that because the contract (or contracts) were for the term of the 2019-2022 academic year (nine months) they could not be terminable at will. Id.
While the precise legal arguments and theories presented by Plaintiff are a bit difficult to parse, even while construing all facts in Plaintiff's favor, the undersigned agrees with Defendants that Plaintiff's breach of contract claim is subject to summary judgment. Much of Plaintiff's argument as to the breach of contract claims (as well as several tort-based claims discussed below) is that the June 2019 letter constituted a contract that was breached. As a matter of contract law, however, the undersigned agrees with Defendants that the August 16, 2019 letter-the one the June 2019 letter indicated would be forthcoming and the one Plaintiff accepted and signed-became the only contract between the parties. By being superseded by the August letter-contract the June agreement (even if considered a “contract”) was not breached. Rather, the June 11, 2019 letter indicated it contained an “outline of our understanding of the conditions of [Plaintiff's] employment” and plainly advised that Plaintiff would “receive a letter from the University Provost that [would] constitute the formal agreement between [him] and [CCU].” ECF No. 41-1 at 4.
The August 16, 2019 Letter constituted the contract between Plaintiff and CCU. In the first paragraph, the letter succinctly provides, “This offer supersedes any previous offers of employment for academic year 2019/2020.” ECF No. 41-1 at 5. In addition to stating that the appointment is from August 16, 2019 through May 15, 2020 at a salary of $52,000.00, and other terms such as teaching load and a relocation allowance, the letter also plainly provides, “CCU reserves the right to terminate your employment at any time, with or without cause, and with or without notice.” Id.
Plaintiff's argument in principle seems to be that because he had a contract for a particular term (two semesters/nine months) it could not be terminable at will. However, South Carolina contract law provides otherwise. As the South Carolina Supreme Court explained, even a contract for a term may be terminable at will if the parties so stipulate in their written agreement.
An employment contract for an indefinite term is presumptively terminable at will, while a contract for a definite term is presumptively terminable only upon just cause. These are mere presumptions, however, which the parties can alter by express contract provisions. For example, our employee handbook decisions have involved indefinite duration contracts where the at-will termination presumption has been altered by language used in the handbook. E.g., Small v. Springs Indus., Inc., 292 S.C. 481, 357 S.E.2d 452 (1987). In the three decisions cited by [the plaintiff], the parties had altered the at-will presumption by including a notice of termination clause. This case presents a similar situation: the parties have, by an express contract provision, altered the presumption that employment for a definite term is terminable only upon just cause, and replaced that presumption with an at-will termination clause. Cf., Prescott v. Farmers Tele. Co-op., Inc., 335 S.C. 330, 516 S.E.2d 923 (1999) (“Of course, an employer and employee may choose to contractually alter the general rule of employment at will and restrict their freedom to discharge without cause or to resign with impunity”).Cape v. Greenville Cnty. Sch. Dist., 618 S.E.2d 881, 883 (S.C. 2005) (emphasis added) (affirming trial court's grant of summary judgment in favor of employer as to employee's breach-of-contract claim).
“When the terms of a contract are clear, the interpretation of the contract is a question of law for the court.” Stribling v. Stribling, 632 S.E.2d 291, 293 (S.C. Ct. App. 2006). The August 2019 contract in this matter clearly states that “CCU reserves the right to terminate your employment at any time, with or without cause, and with or without notice.” ECF No. 41-1 at 6. The contract also plainly provides that it “supersedes any previous offers of employment for the academic year 2019/2020.” Id. at 5. Further, as pointed out by Defendants, Plaintiff signed and accepted the August 2019 contract. When asked about the August 2019 contract during his deposition Plaintiff indicated the superseding term and the terminable-at-will term were “comical.” Pl. Dep. 131, ECF No. 157-11. Rather than refuse the offer or negotiate its terms, though, Plaintiff signed the August 2019 letter/contract. Pl. Dep. 132 (“I could have said hey, you've got to remove that. I didn't.”); Pl. Dep. 133 (Q: “You signed it and accepted it? A. “Yeah.”).
Summary judgment is appropriate as to Plaintiff's breach-of-contract claim. The “Legitimate Expectations” subsection of the Eighth Claim does not set out any actionable claim. See generally Am. Compl. ¶¶ 206-210 (generally alleging Defendants' “illegally ending his employment” disrupted his expectations and his receipt of “the contractual amount of salary” but not setting out a separate actionable legal theory). Summary judgment is appropriate as to Plaintiff's Eighth Claim of Relief.
2. Fraud claim
Defendants also seek summary judgment as to Plaintiff's Seventh Claim of Relief, which he entitles a claim for “Fraudulent Misrepresentation, Economic Duress and Unjust Enrichment.” Am. Compl. ¶¶ 162-185. Defs. Mem. 7-10. Defendants discuss the elements of claims for fraud in the inducement, economic duress, and unjust enrichment, explaining how Plaintiff has not set out facts sufficient to survive summary judgment as to any of these claims. Defs. Mem. 7-10. In response, Plaintiff briefly argues the seventh claim is “connected to” the breach of contract claim, arguing that Defendants either “breached a contract or committed fraud or both.” Pl. Mem. 4. Plaintiff does not respond to Defendants legal arguments nor does he discuss the elements he would need to prove to establish any of these contract-related tort claims. Rather, Plaintiff simply argues Defendants “defrauded Plaintiff with a second contract” that was materially different from the first. Id. In short, this simply is not the law. As discussed above, the August 2019 contract, which was agreed to and signed by Plaintiff and the CCU Interim Provost, plainly established that it “superseded” any prior offers. Additionally, the express provision that the contract could be ended for any reason or no reason plainly was included in what the document Plaintiff signed. Summary judgment is appropriate as to these claims.
To establish a claim for fraud in the inducement to enter a contract, South Carolina law requires that a party must establish the following by clear and convincing evidence:
(1) a representation; (2) its falsity; (3) its materiality; (4) either knowledge of its falsity or a reckless disregard of its truth or falsity; (5) intent that the representation be acted upon; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury.Turner v. Milliman, 708 S.E.2d 766, 769 (S.C. 2011).
As noted by both Defendants and Plaintiff, when one promises to do a certain thing, having at the time no intention of keeping his agreement, it is a fraudulent misrepresentation of fact, and actionable as such. “[E]ntering into an agreement, with no intention of keeping such an agreement, constitutes fraudulent misrepresentation; however, mere breach of contract does not constitute a fraud.” Adams v. G.J. Creel & Sons, Inc., 465 S.E.2d 84, 85 (S.C. 1995). Importantly, Plaintiff must have evidence of an allegedly false representation that was false when made. Field v. Melrose Ltd. Partnership, 439 S.E.2d 283, 285 (S.C. Ct. App. 1993).
Here, Plaintiff has not identified a false representation. Nothing in the record indicates Plaintiff and Defendants discussed anything related to whether or why Plaintiff could be terminated during the time between the first letter in June and the signed agreement in August. Further, the initial agreement on its face indicated that it offered an “outline” and that Plaintiff would “receive a letter from the University Provost that will constitute the formal agreement between you and the University.” ECF No. 41-1 at 4. As noted above, in Plaintiff's deposition he characterized the language regarding termination in the August contract as “comical,” yet he chose to sign the agreement without negotiating any of its terms. Pl. Dep. 131-33. Plaintiff has not established a false representation by clear and convincing evidence. Consideration of the other elements of a fraudulent inducement claim need not be contemplated in any detail. Any claim for fraud in the inducement is subject to summary judgment.
The undersigned also agrees with Defendants that summary judgment is appropriate as to any claim of economic duress. Am. Compl. ¶¶ 174-78 (averring Plaintiff had moved to South Carolina and uprooted his family and felt “under duress to take up the position under the amended terms but there were too many extenuating circumstances making him accept the offer”; claiming Defendants “handling of the situation left Plaintiff with no other option other than to accept the amended offer”).
Defendants indicate that on page 20 of his deposition Plaintiff conceded he had not moved his family to South Carolina but had been staying with another professor. Defs. Mem. 9 (citing Pl. Dep. 20). While that testimony may well be contained in Plaintiff's deposition, the court does not find it in the copy of page 20 found in the record.
South Carolina courts considering claims of duress define it as a “condition of mind produced by improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or form a contract not of his own volition.” Williams Trucking Co. v. J.W. Constr. Co., 442 S.E.2d 197, 202 (S.C. Ct. App. 1994) (internal citations omitted). The record in this case contains no evidence from which it could be found that Defendants left Plaintiff with no reasonable alternative but to sign the August 16, 2019 employment contract. In fact, in his deposition Plaintiff testified, “I could have said hey, you've got to remove that [clause about termination]. I didn't.” Pl. Dep. 132. Summary judgment is appropriate as to Plaintiff's claim of economic duress.
Summary judgment is also appropriate as to the remaining portion of Plaintiff's Seventh Claim of Relief: that Defendants “unjustly enrich[ed] themselves with Plaintiff's salary” that he was not paid. Am. Compl. ¶ 179. Plaintiff indicates the contract had provided he would be paid a salary of $52,000.00 for his nine months of teaching, yet, he received only half of that, or $26,000. Am. Compl. ¶ 180.
As Defendants explained, the equitable doctrine of unjust enrichment requires a show of the following: “(1) a benefit conferred by the plaintiff upon the defendant; (2) realization of that benefit by the defendant; and (3) retention of the benefit by the defendant under circumstances that make it inequitable for him to retain it without paying its value.” Chase Home Fin., LLC v. Risher, 746 S.E.2d 471, 478 (S.C. Ct. App. 2013). Here, it is true that Plaintiff was paid only $26,000, which was the agreed-to payment for one semester-the portion of his work he actually performed. However, because it is undisputed that Plaintiff did not teach in the Spring semester of 2020, Defendants did not realize a benefit for which Plaintiff was not compensated.
Summary judgment should be granted as to Plaintiff's Seventh Claim for Relief-including his claims of fraudulent misrepresentation, economic duress, and unjust enrichment.
3. Claims of Libel-Defamation of Character, Negligence, and Pain and Suffering (all contained in Ninth Claim for Relief, Am. Compl. ¶¶ 224-239)
In the Amended Complaint Plaintiff avers a claim of “Libel: Defamation of Character,” asserting that the “connotation that he is a poor performer is both untrue, reckless and meant to defame and turnish [sic] his name. This implication casts aspersions on his 30 year career as an educator.” Am. Compl. ¶ 225. Plaintiff claims he worked to help his students succeed and notes his efforts were mentioned in student reviews. Id. ¶ 227. Plaintiff attaches the termination letter as part of this Claim. Dec. 17, 2019 Letter, ECF No. 41-1 at 2 (letter from Roberts to Plaintiff advising Plaintiff he is being terminated due to his performance).
Defendants seek summary judgment as to Plaintiff's Ninth Claim for Relief, claiming Plaintiff has not set out an actionable defamation claim. Defs. Mem. 10-12 (setting out elements of defamation claim and arguing Plaintiff cannot satisfy them). In his opposition, Plaintiff makes no effort to discuss Defendants' legal argument. Rather, Plaintiff briefly reiterates his claim that his termination for performance was “false and defamatory,” referencing (but not including or citing to) “student evaluation data [that] clearly implies Defendant[s] lied in their termination letter, as Plaintiff's evaluations were superior to multiple faculty that were retained.” Pl. Mem. 5. The undersigned agrees with Defendants that Plaintiff's defamation claim is subject to summary judgment.
South Carolina law sets forth the following elements for a claim for defamation: (1) a false and defamatory statement; (2) unprivileged publication to a third-party defendant; (3) fault on the part of the defendant publisher, and (4) actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. McNeil v. S.C. Dept. of Corrs., 743 S.E.2d 843, 848 (S.C. Ct. App. 2013). The only publication on which Plaintiff focuses is the December 17, 2019 letter, which was a privileged communication between Roberts and Plaintiff. ECF No. 41-1 at 2. South Carolina courts recognize that “one who publishes defamatory matter concerning another is not liable for the publication if (1) the matter is published upon an occasion that makes it conditionally privileged, and (2) the privilege is not abused.” Swinton Creek Nursery v. Edisto Farm Credit, ACA, 514 S.E.2d 126, 134 (S.C. 1999). “The essential element of a conditionally privileged communication may be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.” Manley v. Manley, 353 S.E.2d 312, 315 (S.C. Ct. App. 1987). Even assuming without deciding that anything in the letter could be considered defamatory, the letter between Roberts and Plaintiff was between appropriate parties and could not be said to abuse any privilege. As Plaintiff cannot demonstrate any allegedly defamatory nonprivileged statement was published to a third party summary judgment is appropriate.
While Plaintiff continues to take issue with whether Defendants' position and statement that he was being terminated because of his performance is even true, the court need not further consider that element as another crucial element cannot be satisfied.
The court notes that Plaintiff's Ninth Claim also purports to include a claim of “negligence,” alleging Defendants had a “duty of care to find out the extent of Plaintiff's illness instead of dismissing him.” Am. Compl. ¶ 231. However, the undersigned is aware of no such legal duty, nor has Plaintiff provided authority to support that claim. Although he cites a snippet from Haulbrook v. Michelin North America, 252 F.3d 696, 700 (4th Cir. 2001) in paragraph 233 of the Amended Complaint, that case does not support Plaintiff's claim that Defendants owed a particular duty of care to Plaintiff to investigate his medical condition. Rather, the cited portion of Haulbrook indicates only that, under the facts of that case, employer Michelin North America requested that plaintiff meet with the company doctor, “as is required of all employees who have been on a Medical Leave of Absence.” 252 F.3d at 700. Nothing in Haulbrook (or any authority of which the undersigned is aware) imposes a negligencecentered duty of careupon an employer to “find out the extent” of an employee's illness. To the extent Plaintiff's Amended Complaint purports to include a negligence cause of action, it is subject to summary judgment.
While there are disability-related statutory schemes that may come into play and impact a company's involvement with considering an employee's health/purported disability, they are not couched in terms of a “duty of care” as contemplated in negligence-based claims. Further, none of the disability-related statutory schemes remains available to Plaintiff in this matter. Plaintiff's ADA-based claim was dismissed previously. Summary judgment is recommended as to his Rehabilitation Act claim.
Further, Plaintiff's claim of “pain and suffering,” found in paragraphs 234 through 239 of his Amended Complaint does not set out a separately actionable claim. Rather, “pain and suffering” references a type of damages sometimes recoverable.
Summary judgment is appropriate as to Plaintiff's claim of libel/defamation of character, negligence, and pain and suffering. His entire Ninth Claim for Relief is subject to summary judgment in Defendants' favor.
4. Intentional Infliction of Emotional Distress [First “Eleventh Claim for Relief”], Am. Compl. ¶¶ 240-246.
Defendants argue that Plaintiff's claim for Intentional Infliction of Emotional Distress (“IIED”) is subject to summary judgment in their favor based on the plain language of the South Carolina Tort Claims Act (“SCTCA”). Defs. Mem. 12. Plaintiff does not separately address this argument in his opposition memorandum. The undersigned agrees with Defendants that the SCTCA requires dismissal of Plaintiff's claims of IIED against both Defendants.
As an initial matter, this claim could be considered abandoned, given Plaintiff's failure to discuss it in his opposition memorandum. See generally Eady v. Veolia Transp. Servs., Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009) (“The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.”); Sawyers v. United Parcel Serv., Inc., C/A No. 1:18CV1037, 2019 WL 4305771, at *3 (M.D. N.C. Sept. 11, 2019) (collecting cases showing that “[t]his district and others within the Fourth Circuit agree that failing to respond to an argument constitutes an abandonment of a claim”).
Further, summary judgment is appropriate when considering the merits of this claim. The SCTCA is the exclusive civil remedy for any tort committed by a governmental entity, its employees, or its agents, except as provided for in Section 15-78-70(b). See S.C. Code Ann. § 15-78-20(b). Under § 15-78-20(b), if an employee of a governmental entity is acting outside of the scope of his or her official duties or his or her conduct constitutes actual fraud, actual malice, intent to harm or a crime involving moral turpitude, then the immunity afforded under the SCTCA will not apply. Stated another way, the SCTCA governs all tort claims against governmental entities and is the exclusive remedy available to a plaintiff suing that entity or its employees. Flateau v. Harrison, 584 S.E.2d 413, 416 (S.C. Ct. App. 2003). An employee of a governmental entity is immune for suit for tortious acts committed within the scope of his or her official duties. Id. Here, there is no argument that any actions taken by Roberts were taken outside of the scope of his official duties. Accordingly, no tort claim, including a claim of IIED, may be brought against him individually.
As explained by Defendants, Section 15-78-30(f) of the SCTCA explicitly excludes losses from “the intentional infliction of emotional harm” from losses that may be covered when brought against a state-supported institution such as CCU. Further, the SCTCA does not permit recovery against governmental entities as to any intentional torts. S.C. Code Ann. § 15-78-60(17). This law is well-established. See Doe v. Dorchester Sch. Dist. Two, No. 2:22-CV-03648-RMG, 2023 WL 2352159, at *4 (D.S.C. Mar. 2, 2023); Smith v. City of Charleston, 2:06-825-DCN, 2007 WL 9735801, at * 5 (D.S.C. July 24, 2007) (“Recovery from governmental entities for intentional torts and intentional infliction of emotional distress is specifically barred by the Tort Claims Act.”).
Summary judgment should be granted as to Plaintiff's claim of Intentional Infliction of Emotional Distress.
5. Breach of Privacy [Second “Eleventh Claim for Relief”], Am. Compl. ¶¶ 247-252
In the Amended Complaint, Plaintiff seems to allege his “right to privacy” was breached by Defendants' placing his CV on CCU's website. Am. Compl. ¶ 249 (“The Plaintiff mentions, quite pellucidly, how his illness made him not attend a whole term of the school year in September 2018 to December 2018. This is not something that the Plaintiff would have liked advertised on a public forum such as a University website. That is why his CV was sent to the Employer in Confidence only for him to find it on the schools Website. Anyone, including the Student body, has access to this information.”).
Defendants seek summary judgment as to Plaintiff's breach-of-privacy claim. Defs. Mem. 1214. Plaintiff's response to summary judgment does not specifically discuss this claim.
The undersigned agrees that Plaintiff's claim of “breach of privacy” is subject to summary judgment. As an initial matter, this claim, too, could be considered abandoned, given Plaintiff's failure to discuss it in his opposition memorandum. See generally Eady, 609 F.Supp.2d at 560-61 (“The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.”).
Even if considered on its merits, Plaintiff has not set out a claim that survives summary judgment. As discussed by Defendants, it is far from clear what Plaintiff's precise claim even is. His testimony demonstrates the confusing nature of what he claims was or was not published on the University website.
In the Factual Allegations section of his Amended Complaint, Plaintiff references his cover letter and CV, noting he applied for a job with CCU by sending his cover letter and CV. Am. Compl. ¶ 26. Although he indicates the cover letter and CV are attached as “Exhibit 2,” they are actually found as “Exhibit 3” to the Amended Complaint. Cover Letter, ECF No. 41-1 at 8; CV, ECF No. 41-1 at 915. The cover letter sending the CV does not request confidentiality in any manner. Plaintiff conceded this in his deposition. Pl. Dep. 195. Plaintiff further notes he never requested that CCU remove his CV from the website. Id. In fact, when questioned about the privacy claim, Plaintiff testified that he did not think the CV was on the website. Pl. Dep. 193. Rather, Plaintiff indicates what “[t]hey actually posted, you know, [was] where [he] was before, with the gap, which was not really what I would like.” Id.
While it is impossible for the court to know exactly what Plaintiff meant by the “gap,” the only “gap” that is apparent from the CV relates to Plaintiff's location from September to December 2018. See ECF No. 41-1 at 11 (“September 2018-December 2018 I became very ill living in the mountains of Oregon. I spent this term recovering from breathing issues.”). Plaintiff is never clear as to what about the “gap” he claims was posted on the CCU website.
Broadly construing Plaintiff's “breach of privacy” as one brought under South Carolina law for the tort of “invasion of privacy,” the court agrees with Defendants that summary judgment is appropriate. The elements of an invasion of privacy claim are (1) publicizing, (2) absent any waiver of privilege, (3) private matters in which the public has no legitimate concerns, and (4) so as to bring shame or humiliation to a person of ordinary sensibilities. Swinton Creek Nursery v. Edisto Farm Credit, 514 S.E.2d at 131. At the most basic level, Plaintiff's claim is subject to summary judgment because he has not explained WHAT exactly was (or was not) published on CCU's website, either by providing cogent testimony or by providing documented evidence of what was actually on the website concerning him. Plaintiff has not set out any evidence that he actually had any sort of expectation of privacy in his CV, nor did he indicate to CCU that he considered information in the CV to be private.
Plaintiff's breach of privacy claim is subject to summary judgment in favor of Defendants.
IV. Conclusion and recommendation
For the reasons set forth above, it is recommended that Defendants' Motion for Summary Judgment, ECF No. 157, be granted as to all claims and this case be ended.
IT IS SO RECOMMENDED.