Opinion
Civil Action No.: 3:16-cv-2884-MGL-TER
07-30-2018
TAURUS LEWIS, Plaintiff, v. RICHLAND COUNTY RECREATION COMMISSION, and JAMES BROWN, III, DAVID STRINGER, and TARA DICKERSON, in their individual capacities, Defendants.
REPORT AND RECOMMENDATION
I. INTRODUCTION
This case arises from Plaintiff's employment with Defendant Richland County Recreation Commission (RCRC). Plaintiff alleges causes of action for race discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq., violation of the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., defamation, and civil conspiracy. Presently before the court are the parties' cross motions for summary judgment (ECF Nos. 46, 47). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), DSC. Because these are dispositive motions, this Report and Recommendation is entered for review by the district judge.
In his Amended Complaint, Plaintiff also mentioned a racially hostile work environment but did not assert it as a separate claim and has not addressed any such claim in his motion for summary judgment or in response to Defendants' motion for summary judgment.
II. FACTS
Plaintiff, Taurus Lewis, and African-American male, began employment with Defendant Richland County Recreation Commission on July 30, 2001 as an Assistant Recreation Center Director. Plaintiff's 2001 Employment Confirmation (Ex. A to Pl. Motion). On March 17, 2003, Plaintiff was promoted to the Recreation Center Director of RCRC's Eastover Park. Plaintiff's 2003 Employment Confirmation (Ex. B to Pl. Motion). On February 23, 2009, Plaintiff became a Park Manager I. Plaintiff's 2009 Employment Confirmation (Ex. C to Pl. Motion). Shortly thereafter, he received another promotion to the Deputy of Park Operations over all of RCRC's parks on May 31, 2009. Employment Status Change (Ex. D to Pl. Motion). On January 9, 2011, Plaintiff became the full-time Facility Operations Division Head. Plaintiff's 2011 Employment Confirmation (Ex. E to Pl. Motion); Plaintiff's Salary Sheet (Ex. T to Pl. Motion). Plaintiff performed at a consistently high level, as reflected on his performance evaluations showing that he received an overall rating of "exceeds expectations" each year from 2011-2014. Performance Evaluations (Ex. N to Pl. Motion).
David Stringer, a Caucasian male, served as the Division Head of Human Resources during the relevant time period. Stringer Dep. 57 (Ex. E to Def. Motion). Tara Dickerson, a Caucasian female, was appointed Chief of Staff effective January 6, 2016. One of her responsibilities was managing staff/employment matters and reporting to Executive Director Defendant James Brown, an African-American male. Organization Chart (Ex. F to Def. Motion); Dickerson Dep. 24, 325 (Ex. G to Def. Motion); Pl. Dep. 23 (Ex. C. to Def. Motion); Stringer Dep. 38, 78.
In 2013, Plaintiff began noticing Brown make racially charged comments about other employees. Pl. Dep. 22 (Ex. Z to Pl. Motion). Plaintiff "expressed to Mr. Brown on many occasions that [] [he] didn't think a person, the color of their skin defines a person's character of their job." Pl. Dep. 22 (Ex. Z to Pl. Motion).
In September 2015, Plaintiff began experiencing headaches, stress, and chest pain. Pl. Dep. 33 (Ex. Z to Pl. Motion). He called a meeting with Defendant Stringer, the head of Human Resources, and his supervisor, Kenya Bryant. Pl. Dep. 33 (Ex. Z to Pl. Motion). Plaintiff then informed the two that Defendant Brown, on multiple occasions, made advances toward Plaintiff's wife. Pl. Dep. 33-36 (Ex. Z to Pl. Motion).
In December 2015, Plaintiff became aware of a sexual harassment complaint filed by Andrea James against Defendant Brown. Pl. Dep. 52 (Ex. Z to Pl. Motion). Columbia attorney Linda Edwards was asked to investigate James's allegations of sexual harassment and retaliation. Edwards Dep. 13-15 and Ex. 1 (Ex. X to Pl. Motion). Ms. Edwards was selected by Defendant Stringer and approved by the Board as an outside, independent investigator with experience in similar investigations. Edwards Dep. 18-21, Ex. 2,3 & 4. Edwards began her investigation by obtaining a list of persons at RCRC who might have personal knowledge of Brown's actions. Edwards Dep. 13-15, 26-27. On the list was Plaintiff and approximately twenty other employees. Edwards Dep. 33-35. Edwards requested Stringer to make these witnesses available for private interviews, which were held at her law office in downtown Columbia. Edwards Dep. Ex. 2.
Defendant Stringer told Plaintiff to participate in the investigation, but Plaintiff was concerned because he "knew the ramification that was going to come behind it." Pl. Dep. 52 (Ex. Z to Pl. Motion). Plaintiff and other employees felt Brown fostered a hostile work environment but feared retaliation if they complained about it:
[B]eing that Mr. Stringer as the HR director, Ms. Dickerson as the chief of staff, all employees knew that they directly reported to Mr. Brown, so nobody, including myself, was comfortable with going to either one of them for advice, for concerns to file a complaint because we all knew that they would go straight to [Mr. Brown], and ultimately he would have them suspended, dismissed, or removed.Cooper Dep. 63-64 (Ex. V to Pl. Motion). Anthony Cooper, Director of Procurement for RCRC, testified that "[e]veryone was fearful to go to Mr. Stringer or HR to file any kind of complaint because of retaliation. Cooper Dep. 65. Plaintiff testified that he was made to feel like "the scapegoat or the fallback guy for whatever reason. It would always be [his] fault for something." Pl. Dep. 107 (Ex. Z to Pl. Motion). Further, a majority of the board of Defendant RCRC backed Mr. Brown because his relationship with the chairwoman gave him increased authority:
Q. [W]hat power did Ms. Greene have over the Board as a chairperson from what you could observe yourself?Cooper Dep. 180. Because of his relationship with the voting block above mentioned, "Mr. Brown, he ruled as a bully would rule, and any time you went against anything that he said, he would retaliate. He would see to it that either you got relocated or you got dismissed." Cooper Dep. 182-83. However, Plaintiff approached Defendant Brown directly about the investigation and was not discouraged by him from being interviewed by Edwards. Pl. Dep. 52-53 (Ex. Z to Pl. Motion). Therefore, Plaintiff made arrangements to meet with Linda Edwards, the investigator, and met with her privately in her law office. Pl. Dep. 53-54 (Ex. Z to Pl. Motion).
A. Ms. Greene had supreme power.
Q. What do you mean by that?
A. She - it was whatever she says goes. She had - she knew she had the majority vote with Ms. Mickens, with Mr. George Martin and Mr. Wes Furgess and herself. That was the majority vote. So whichever way she wanted to - whatever direction she wanted to go in, she had those three supporters.
Q. How would - what did you observe about Mr. Brown's relationship with Ms. Greene, Ms. Mickens and perhaps the others that you mentioned?
A. Very close, very personable.
Cooper also has an action pending before this court, Cooper v. Richland County Recreation Committee, et. al, 3:16-cv-1606-MGL-TER.
Plaintiff testified that "[f]or a while [I] was kind of quiet, didn't really say a whole lot . . . because [I didn't] want [it] to get back to Mr. Brown or anybody about what's being said." Pl. Dep. 54 (Ex. Z to Pl. Motion). Plaintiff elaborated on what he meant about Mr. Brown:
I told her that if Mr. Brown feel that anybody is coming after him or doing anything to his livelihood or his family, he's going to take recourse. And it's not going to be good for anybody. He's going to come after you. And like I told her, I seen it happen
firsthand. I know how Mr. Brown operates. When he's locked and loaded, he put his mind on you, his enemy, you are his enemy.Pl. Dep. 55 (Ex. Z to Pl. Motion).
Nonetheless, Plaintiff provided his accounts of Defendant Brown's sexual behavior he had witnessed. Pl. Dep. 56-59, 136-37, 143 (Ex. Z to Pl. Motion). Plaintiff did not report these incidents prior to Edwards' interview because he "[knew] if [he] went to David [Stringer], David would report it to Mr. Brown." Pl. Dep. 60. Employees "didn't have nobody to go to at that place. . . [They] didn't have an outlet. HR nor the board." Pl. Dep. 61.
At the end of her investigation, on April 4, 2016, Edwards submitted a written report in Executive Session to the Board with information obtained through her interviews from all the witnesses, including Lewis, They were read and observed by all Board members. Edwards Dep. 57-63. The "Edwards Report" was never made public. The Board voted in a split vote to "uphold the Executive Director." RCRC Special Call Board Meeting Minutes for April 4, 2016 (Ex. F to Pl. Motion).
Plaintiff testified that after the investigation, the work environment became hostile for the employees who participated in it:
[E]verybody that - when they talked to that lady, [his] staff started getting a raff [SIC] from [Defendant] Brown. Everybody. All of [his] staff that went and talked to [Linda Edwards] started getting it from [Defendant Brown]. Take this away. Park the cars. They going to lunch at this time. This time. This time. Everything was personal with him.Pl. Dep. 85 (Ex. Z to Pl. Motion). Plaintiff testified that Defendant Brown "made a statement that he knew everything that everybody said in that report because he knows exactly how it was said. And everybody that said something about him, he was going to deal with them." Pl. Dep. 156 (Ex. Z to Pl. Motion). "People was very - they were very, very afraid." Pl. Dep. 86 (Ex. Z to Pl. Motion).
On April 5, 2016, Plaintiff was put on suspension with pay while accusations of inappropriate actions were investigated. Lewis Suspension Letter (Ex. G to Pl. Motion). Plaintiff felt, however, that he was likely being terminated:
My keys, my work phone, my work vehicle, my email was all taken and disabled on that day. When that happens to you, in my past belongings and dealing with RCRC, that means you're terminated. I've had to do it on many occasions, taking employees keys, badge, and all that stuff. So Ms. Dickerson assured me, "Oh, we're just doing an investigation. If you're innocent, nothing come of it, you'll be back to work. You're fine." Well, that never happened.Pl. Dep. 88-89 (Ex. Z to Pl. Motion).
Plaintiff's suspension stemmed from statements by coworkers Alex Wright and Antoine Rush. Statements of Rush and Wright (Ex. H to Pl. Motion). These statements suggested that Plaintiff approached Rush and said that Mr. Brown needed to be fired, and Rush reported to Wright that the conversation made him uncomfortable. Statements of Rush and Wright. Plaintiff denied making the statement and submitted a rebuttal. Pl. Rebuttal Statement (Ex. L to Def. Motion). Rush later contacted Plaintiff to explain the situation. Plaintiff testified as follows:
A: I received a phone call from Killian Park. I didn't rec - I knew it was a park number, I wasn't sure which one it was because my work cell had been taken from me.Pl. Dep. 93-94 (Ex. Z to Pl. Motion). Rush also wrote a statement providing that "[o]n Friday, April 8, 2016 the Executive Director James Brown came to Killian Park to convince [him] to stand in front of the board and speak against Taurus Lewis." Rush Statement ( Ex. I to Pl. Motion). When Rush refused the request, "Mr. Brown followed with saying so are you willing to be suspended or possibly terminated by Mrs. Dickerson. [He] stated if that what it took yes." Rush Statement.
I said, "Hello?"
Somebody on the other end, which it end up being Antoine Rush, said "I know I'm the last person that you want to talk to."
I said, "Who is this?"
He says, "Antoine."
I said, "Oh, yeah, you are. I don't have anything to say to you."
He said, "Please listen to me."
I said, "What you have to say?"
He said, "I didn't know that Mr. Brown was trying to use me to get you fired."
I said, "What do you mean?"
He said "Mr. Brown called me after I" no, I'm going to take that back. "Alex Wright called me and told me I needed to do what Mr. Brown say do."
On April 13, 2016, Plaintiff filed an EEOC charge. Charge of Discrimination (Ex. J to Pl. Motion). He cited a hostile work environment and retaliation for his participation in the sexual harassment investigation. Charge of Discrimination.
In a letter dated April 14, 2016, Defendants Stringer and Dickerson found that due to "differing views and prior issues they ha[d] discussed with [him] regarding the supervision of the Facility Operations Division, it has been determined that in the best interest of the Richland County Recreation Commission and yourself to move you to a comparable position." Investigation Letter (Ex. K to Pl. Motion). The comparable position was the Director of Maintenance position, which would have a new supervisor, new work hours, and a new location. Investigation Letter. Plaintiff testified that Defendants knew he was responsible for taking his children to school and the new work hours would prevent him from being able to do so. Pl. Dep. 89 (Ex. Z to Motion). Although Plaintiff's pay would remain the same, a move to the Director of Maintenance position was considered a demotion in title by others within the RCRC, including the Division Head of Safety, Robert Hickman, and an HR Director, Keira Sessions. Hickman Dep. 40 (Ex. Y to Pl. Motion); Sessions Dep. 129 (Ex. AA to Pl. Motion). Plaintiff declined the offer to be moved to the Director of Maintenance position. Pl. Dep. 118 (Ex. C to Def. Motion); Stringer Dep. 390; Dickerson Dep. 198.
The day that Plaintiff received the letter stating he would be demoted, he requested FMLA leave and his request was granted. FMLA Approval (Ex. L to Pl. Motion). He received his full 12 weeks of FMLA leave through June 13, 2016. Pl. Dep. 102, 119 (Ex. to Def. Motion); Stringer Dep. 390-91; FMLA Letter (Ex. M to Pl. Motion). However, on May 17, 2016, he received a letter notifying him that he would not be reinstated to his Division Head of Facility Operations position once his FMLA expired because he had refused to accept the Director of Maintenance position and, as a key employee, reinstating him to his old position would result in "substantial and grievous economic injury to RCRC operations." FMLA Letter (Ex. M to Pl. Motion). Following the expiration of his FMLA leave, Plaintiff was placed on extended disability leave of absence and remained on the RCRC payroll until August 30, 2016. Termination Letter (Ex. B to Def. Motion).
Brown was indicted for misconduct in public office on October 12, 2016, following an investigation by SLED and the FBI. Grand Jury Indictment (Ex. O to Pl. Motion). The indictment alleges that Brown "used his position as Executive Director to coerce and attempt to coerce female employees into having sexual contact with him." Grand Jury Indictment. On October 13, 2016, members of the Richland County Legislative Delegation wrote a detailed letter to then-Governor Nikki Haley requesting the removal of the five RCRC board members that voted in favor of Brown following their review of the Edwards Report. Letter from Legislative Delegation (Ex. Q to Pl. Motion). On October 17, 2016, the RCRC Board voted to accept Brown's request to retire. Retirement Letter (Ex. P to Pl. Motion).
On November 10, 2016, Governor Haley entered an Executive Order notifying all RCRC Board members of the specific charges against them and of their opportunity to be heard at a public hearing on November 30, 2016. Executive Order No. 2016-45 (Ex. R to Pl. Motion). On December 14, 2016, Governor Haley entered a second Executive Order noting that four members of the RCRC board had resigned and members J. Marie Green, Chairman; Barbara Mickens, Vice-Chairman; and Thomas Clark, Member, availed themselves of the opportunity to be heard at the November 30, 2016, hearing. Following the hearing, she removed Green and Mickens from the board and allowed Clark to remain in his position. Executive Order No. 2016-48 (Ex. S to Pl. Motion).
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position 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." Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
A. Race Discrimination
Plaintiff asserts his race discrimination claim against his former employer, RCRC. Title VII makes it "an unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin...." 42 U.S.C. § 2000e-2(a)(1).
A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, he may establish through direct or circumstantial proof that a protected characteristic such as race or sex was a motivating factor in the employer's adverse decision. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir.2004) (en banc). When such evidence is lacking, a plaintiff may proceed under the burden-shifting proof scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this burden-shifting scheme, Plaintiff has the initial burden of establishing a prima facie case of discrimination, which "var[ies] depending on the nature of the case." Briggs v. Waters, 484 F. Supp. 2d 466, 477 (E.D. Va. 2007). If Plaintiff establishes a prima facie case, the burden shifts to Defendant to produce a legitimate, nondiscriminatory reason for the disparate treatment. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). This is merely a burden of production, not of persuasion. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Once Defendant has met its burden of production by producing its legitimate, nondiscriminatory reason, the sole remaining issue is "discrimination vel non." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)). In other words, the burden shifts back to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced by Defendant is not its true reason, but was pretext for discrimination. Reeves, 530 U.S. at 143. Throughout the burden shifting scheme set forth in McDonnell Douglas, the ultimate burden of proving that Defendant intentionally discriminated against Plaintiff remains at all times with Plaintiff. Plaintiff has the ultimate burden of presenting evidence from which a reasonable jury could conclude defendant intentionally discriminated against him.
Plaintiff presents his evidence within the McDonnell Douglas burden-shifting framework. "A plaintiff must put forth a prima facie case of discrimination by establishing that: (1) [he] is a member of a protected class; (2) [he] 'suffered an adverse employment action'; (3) [his] job performance was satisfactory; and (4) the adverse employment action occurred 'under circumstances giving rise to an inference of unlawful discrimination.' " Swaso v. Onslow Cty. Bd. of Educ., 698 Fed.Appx. 745, 747 (4th Cir. 2017) (citing Adams v. Tr. of Univ. of N.C.-Wilmington, 640 F.3d 550, 558 (4th Cir. 2011)). The circumstances giving rise to an inference of unlawful discrimination vary. Here, Plaintiff argues that he meets this element because his "job offer was rescinded." Pl. Motion p. 15 n.1. Presumably, Plaintiff is referring to the Director of Maintenance position. However, there is no evidence that Defendant RCRC rescinded it's offer to Plaintiff for this position. Plaintiff testified that he declined the offer. Pl. Dep. 118 (Ex. C to Def. Motion); see also Stringer Dep. 390; Dickerson Dep. 198; FMLA Letter (Ex. M to Pl. Motion). Plaintiff fails to present any other evidence that could give rise to an inference that he suffered an adverse employment action because of his race. As such, he fails to create an issue of fact as to his race discrimination claim, much less to show he is entitled to judgment in his favor on this claim. Thus, it is recommended that Plaintiff's motion for summary judgment be denied and Defendants' motion for summary judgment be granted as to Plaintiff's race discrimination claim.
B. Retaliation
Plaintiff also alleges that Defendant retaliated against him after he was interviewed by Edwards in connection with the sexual harassment complaint filed by James and filed his own charge of discrimination. Title VII makes it an "unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff must show (1) he engaged in protected activity, (2) the employer took adverse employment action against him, and (3) a causal connection existed between the protected activity and the adverse action. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985); Laughlin v. Metropolitan Washington Airports Authority, 149 F.3d 253, 258 (4th Cir.1998); Causey v. Balog, 162 F.3d 795, 803 (4th Cir.1998). If Plaintiff establishes a prima facie case, Defendants can rebut the presumption of retaliation by articulating a non-retaliatory reason for its actions. At that point, Plaintiff must present evidence sufficient to create a genuine issue of material fact that Defendants' legitimate, non-retaliatory reason is pretextual. See Matvia v. Bald Head Island Management, 259 F.3d 261, 271 (4th Cir.2001).
It is undisputed that Plaintiff engaged in protected activity when he participated in the investigation of James's sexual harassment claim and when he filed his own charge of discrimination with the EEOC. A plaintiff may engage in protected activity under either the "opposition" clause or the "participation" clause of Title VII. The participation prong of Title VII's anti-retaliation provision can be divided into two categories, the first providing coverage to persons making a charge, and the second covering persons testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing. USEEOC v. Bojangles Restaurant, Inc., 284 F. Supp. 2d 320, 327-28 (M.D.N.C. 2003). The second prong in the participation clause provides coverage for a broad array of activities, including "persons who assist other persons who directly engage in protected activity." Id. at 327-29; see, e.g., Johnston v. Harris Cty. Flood Control Dist., 869 F.2d 1565 (5th Cir. 1989) (affirming the district court's finding of liability under Title VII when the plaintiff was retaliated against for testifying in a co-worker's EEO hearing); Shoaf v. Kimberly-Clark Corp., 294 F. Supp. 746, 756 (M.D.N.C. 2003) (holding, for purposes of summary judgment, that "Plaintiff has established that he engaged in a protected activity under Title VII by testifying on behalf of [co-worker] prior to Plaintiff's discharge from employment").
Further, Plaintiff suffered adverse employment actions when he lost his position as Division Head of Facility Operations, was offered a lesser position as Director of Maintenance, and was ultimately terminated. A less strenuous standard is used to define adverse employment actions in the retaliation context as opposed to other Title VII contexts: "[T]he anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Burlington Northern & Santa Fe Rwy. v. White, 548 U.S. 53, 64 (2006). Demotion in position or loss of supervisory duties, and termination have all been found to be adverse employment actions. Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999) (noting "discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion...." as examples of adverse employment actions).
However, a number of courts addressing Title VII retaliation claims have concluded that "'a suspension with pay pending a prompt investigation into allegations of wrongdoing does not constitute an adverse employment action.'" Jarvis v. Enterprise Fleet Services and Leasing Co., No. DKC-07-3385, 2010 WL 1068146, at *18 (D.Md. Mar. 17, 2010); Von Gunten v. Maryland, 243 F.3d 858, 869 (4th Cir.2001) (short administrative leave pending internal investigation not an adverse employment action) (overruled on other grounds by Burlington Northern, 548 U.S. 53). Thus, to the extent Plaintiff claims he suffered an adverse employment action when he was placed on paid suspension, his claim fails.
Plaintiff next must present evidence of a causal connection between his protected conduct and the adverse employment action. "[A] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse employment action against an employee shortly after learning of the protected activity." Price v. Thompson, 380 F.3d 209, 213 (4th Cir.2004). However, the temporal nexus between two events cannot provide proof of causation unless the "temporal proximity between an employer's knowledge of protected activity and an adverse employment action" was "very close." Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (internal quotation marks omitted). It is not entirely clear from the record when Plaintiff was interviewed by Edwards during the sexual harassment investigation. However, Edwards submitted her findings to the RCRC board during a meeting on April 4, 2016. On April 5, 2016, Plaintiff was suspended with pay pending an investigation into claims of misconduct made by one of his employees. On April 13, 2016, Plaintiff filed his charge of discrimination. On April 14, Stringer, as Division Head of Human Resources, and Dickerson, as Chief of Staff, notified Plaintiff that the investigation was complete and it was determined the it was in the best interest of Plaintiff and RCRC for him to be moved to the Director of Maintenance position. Plaintiff was notified on May 17, 2016, that he would not be reinstated to his position as Division Head of Facility Operations at the expiration of his medical leave and that the Director of Maintenance position was no longer available, although his employment was not officially terminated until Augut 30, 2016. Plaintiff's demotion to the Director of Maintenance position occurred one day after his charge of discrimination and within a couple of weeks of Edwards reporting her findings from her investigation of sexual harassment claims to the RCRC board. Accordingly, Plaintiff has presented sufficient evidence to establish a causal connection between his protected activity and his adverse employment action.
Because Plaintiff has submitted sufficient evidence with respect to the prima facie elements of a retaliation claim, the burden shifts to Defendants to present a legitimate, non-retaliatory reason for the adverse action. Defendants assert that, following the investigation into the complaints raised by Rush that Plaintiff approached him about wanting to get rid of Brown, they received two differing versions of the events (one version from Rush and Wright and one version from Plaintiff) and decided it was in the best interest of everyone to move Plaintiff to a different position, which they described as comparable to the Division Head position. Defendants' burden is one of production, not persuasion, and, thus Plaintiff must present sufficient evidence to create an issue of fact as to whether Defendants' reason is pretext for a retaliatory reason.
Retaliation claims require the employee to show "that retaliation was a but-for cause of a challenged adverse employment action." Foster v. University of Maryland-Eastern Shore, 787 F.3d 243, 252 (4th Cir. 2015); see University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 360, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013) ("Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e-2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer."). To do so, Plaintiff must present evidence that (1) Defendant's reason for terminating him was false and (2) retaliation for his protected activity was the real reason for his termination. Id. (citing Jiminez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir.1995); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). Under appropriate circumstances, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
Plaintiff argues that he received repeated praise for his work performance every year. Indeed, the record reveals he received overall "exceeds expectations" reviews each year between 2011-2014. However, the relevant time to consider an employee's performance is at the time of the adverse action, see Miles v. Dell, Inc., 429 F.3d 480, 485 (4th Cir.2005), which, here, occurred in April of 2016. The latest performance evaluation in the record for Plaintiff is dated January 27, 2015, and evaluates his performance for the year of 2014. The statements from Rush and Wright regarding Plaintiff's comment about wanting to get rid of Brown are dated March 24, 2016, and March 23, 2016, respectively, and Rush asserts in his statement that Plaintiff made the comment on March 15, 2016. Therefore, the conduct for which Defendants' base their decision occurred well after Plaintiff's last performance evaluation provided in the record. Further, the reason given for Plaintiff's move to the Department of Maintenance was not for poor performance. Therefore, his "exceeds expectations" reviews alone are insufficient to show pretext.
As stated above, under appropriate circumstances, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves, 530 U.S. at 146. However, "a factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason is correct. In other words, it is not enough to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination," or, here, retaliation. Id. at 146-47 (citing St. Mary's Honor Ctr., 509 U.S. at 511, 519, 524) (internal citations and quotations omitted). Thus, Plaintiff must also present sufficient evidence to allow a trier of fact to infer that Defendant acted in retaliation for Plaintiff's participation in the investigation of James's sexual harassment claim and when he filed his own charge of discrimination with the EEOC. Id. at 146.
Viewing the record as a whole, Plaintiff has presented sufficient evidence to create an issue of fact as to whether the reasons given for his move to the Director of Maintenance position and subsequent termination were pretext for retaliatory reasons. Plaintiff argues that Defendants' proferred reason for moving Plaintiff to the Director of Maintenance position is unworthy of credence. He argues that although Stringer stated in his letter that the results of the investigation were inconclusive, Stringer was aware that Rush had recanted his statement about Plaintiff telling him he wanted to get rid of Brown. Keira Session, who worked in the HR department, stated in her deposition that Stringer told her that "the statement that Antoine [Rush] gave about Mr. Brown being - - - getting out of his position by [Plaintiff] was taken back." Sessions Dep. 116 (Ex. AA to Pl. Motion). While the evidence presented provides little context for this statement, it creates an issue of fact with respect to the veracity of the reason given for Plaintiff's move from the Division Head of Facility Operations to the Director of Maintenance position. Further, both Plaintiff and Cooper testified that the employees at RCRC felt that Brown fostered a hostile work environment but they felt they could not complain to Stringer or anyone else about because they felt Brown would retaliate against them. Pl. Dep. 52, 55, 60-61, 107 (Ex. Z to Pl. Motion); Cooper Dep. 63-65, 182-83 (Ex. V to Pl. Motion). Plaintiff testified that after the report of Edwards' investigation was disclosed to the Board on April 4, 2016, Brown "made a statement that he knew everything that everybody said in that report because he knows exactly how it was said. And everybody that said something about him, he was going to deal with them." Pl. Dep. 156. The next day, April 5, 2016, Plaintiff was suspended. During Plaintiff's suspension, the record reflects that Brown approached Rush and asked him to speak against Plaintiff at a Board meeting. Rush and Wright Statements (Ex. J to Def. Motion). The day after Plaintiff filed his own EEOC Charge of Discrimination, he received the letter informing him that he was being removed from his position and transferred to the Director of Maintenance position. Charge of Discrimination (Ex. J to Pl. Motion); Investigation Letter (Ex. K to Pl. Motion). This evidence is sufficient to create an issue of fact as to whether Plaintiff suffered adverse employment action because of his participation in the investigation against Brown and his own EEOC filing. As such, summary judgment in favor of Defendants is not appropriate on Plaintiff's retaliation claim under Title VII. Likewise, because an issue of fact exists, summary judgment in favor of Plaintiff is not appropriate either.
Although "temporal proximity alone is not sufficient to establish that ... engagement in protected activity was a 'but for' cause of" an adverse employment action, Staley v. Gruenberg, 575 Fed.Appx. 153, 156 (4th Cir. 2014), "the trier of fact may still consider the evidence establishing the plaintiff's prima facie case and inferences properly drawn therefrom ... on the issue of whether the defendant's explanation is pretextual." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000) (quoting Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981)).
C. FMLA
Plaintiff alleges that Defendant terminated his employment in violation of the FMLA. The FMLA provides that "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1). The FMLA also prohibits an employer from discriminating against an employee for asserting rights under the Act. 29 U.S.C. § 2165(a)(2). "The FMLA creates two types of claims: (1) interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act; and (2) retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act." Gleaton v. Monumental Life Ins. Co., 719 F.Supp.2d 623, 633 n. 3 (D.S.C.2010) (internal citation omitted). In his Motion for Summary Judgment, Plaintiff argues that Defendants retaliated against him for taking FMLA leave.
"Retaliation claims brought under the FMLA are analogous to those brought under Title VII." Adams v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 429 (4th Cir. 2015) (citing Laing v. Fed. Express Corp., 703 F.3d 713, 717 (4th Cir. 2013); Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 550-51 (4th Cir. 2006)). Retaliation claims under the FMLA are evaluated under the McDonnell Douglas burden-shifting framework. Perry V. Computer Sciences Corp., 429 Fed.Appx. 218, 221 (4th Cir. 2011). To establish a prima facie case of retaliation under the FMLA, Plaintiff must show (1) he engaged in protected activity, (2) the employer took adverse action against him, and (3) the adverse action was causally connected to the plaintiff's protected activity. Yashenko v. Harrah's N.C. Casino Co., LLC, 446 F.3d 541, 551 (4th Cir.2006) (citing Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir.1998)).
Defendants acknowledge that Plaintiff engaged in protected activity and that he suffered an adverse employment action when he was terminated from his employment. However, they argue that there is no causal connection between the two. Plaintiff argues that a causal connection exists because of the temporal proximity between his request for FMLA leave and his termination. As stated above, Plaintiff requested FMLA leave on April 14, 2016. Plaintiff argues that he was terminated on May 17, 2016. However, the letter Plaintiff received on May 17, 2016, stated only that he was not a key employee, he would not be reinstated to the Division Head of Facility Operations position, and the Director of Maintenance position was no longer available. FMLA Letter (Ex. M to Pl. Motion). An employee does not have an absolute right under the FMLA to be reinstated at his prior position but must be offered at least an "equivalent position." See Waag v. Solera Defense Solutions, Inc., 857 F. 3d 179, 187 (4th Cir. 2017). Thus, the fact that RCRC notified Plaintiff that he would not be reinstated to his former position is not the equivalent of a termination of employment. Further, Stringer informed Plaintiff in the same letter that his FMLA leave would continue up to 12 weeks and that he could request up to an additional 14 weeks of extended medical leave if necessary. Nevertheless, Plaintiff was notified on September 19, 2016, that his employment was terminated effective August 30, 2016, see Termination Letter (Ex. B to Def. Motion), and the Fourth Circuit has held a five month time period sufficiently close in temporal proximity to establish a causal connection for purposes of a plaintiff's prima facie case. Carter v. Ball, 33 F.3d 450, 460 (4th Cir.1994) (finding causal link between filing of retaliation complaints and the plaintiff's demotion five months later for purposes of the plaintiff's prima facie case). But see Pascual v. Lowe's Home Centers, Inc., 193 F. App'x 229, 233 (4th Cir. 2006) ("In this case, at least three to four months separated the termination of Pascual's employment and the claimed protected activities. We find that this time period is too long to establish a causal connection by temporal proximity alone.").
In its termination letter dated September 19, 2016, Stringer notified Plaintiff RCRC had provided him with twelve weeks of FMLA and, since he was unable to return to work at the end of his FMLA entitlement, RCRC accommodated him by placing him on an extended disability leave of absence. Termination Letter (Ex. B to Def. Motion). The letter further stated "[y]ou rejected the Director of Maintenance position, and there are no vacancies available now or in the foreseeable future. You have reached the allowable time for leave of absence. At this time we must administratively remove you from payroll effective August 30, 2016." Termination Letter (Ex. B to Def. Motion). Plaintiff must show that this reason for his termination of employment was pretext for a retaliatory reason relating to his use of FMLA leave.
As with his Title VII retaliation claim discussed above, to show pretext Plaintiff must demonstrate that were it not for Defendant's desire to retaliate against him for his use of FMLA leave, he would not have been terminated. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013) (holding that Title VII claims of retaliation require a showing of "but-for causation," meaning a plaintiff must provide "proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer"). To do so, Plaintiff must present evidence that (1) Defendant's reason for terminating him was false and (2) retaliation for his protected activity was the real reason for his termination. Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 252 (4th Cir. 2015) (citing Jiminez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir.1995); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). Under appropriate circumstances, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
Plaintiff points to a discrepancy in how Defendants handled his FMLA leave, arguing that the inconsistency shows pretext. In the April 14, 2016, notice approving Plaintiff's requested FMLA leave, Stringer checks boxes indicating that Plaintiff is "not a 'key employee' as described in § 825.218 of the FMLA regulations" and that RCRC has "not determined that restoring [Plaintiff] to employment at the conclusion of the FMLA leave will cause substantial and grievous harm." FMLA Approval (Ex. L to Pl. Motion). However, in a subsequent letter dated May 17, 2016, Stringer stated,
Based on the above and to avoid any later confusion, we are informing you that under the FMLA you are a key employee. You have requested to be reinstated your Division Head position instead of accepting the Director's position. It is RCRC's position that [] reinstating you (to the Division Head of Facility Operations) would result in substantial and grievous economic injury to RCRC operations. Thus, we will not be reinstating you to the Division Head of Facility Operations position.FMLA Letter (Ex. M to Pl. Motion). While such inconsistencies can be evidence of falsity of a defendant's reason for the adverse action, see EEOC v. Sears Roebuck and Co., 243 F.3d 846, Plaintiff must also present sufficient evidence to allow a trier of fact to infer from that falsity that Defendant acted in retaliation for his use of FMLA leave. Reeves, 530 U.S. at 146. As stated above, under appropriate circumstances, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. However, "a factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason is correct. In other words, it is not enough to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination," or, here, retaliation. Id. at 146-47 (citing St. Mary's Honor Ctr., 509 U.S. at 511, 519, 524) (internal citations and quotations omitted).
. . . . Also, the Director's position that you have declined to accept is also [sic] no longer available.
Plaintiff's prima facie case of FMLA retaliation rests on the temporal proximity of five months between his FMLA use and his termination, which is on the outside edge of what courts have considered "very close." See, e.g., Pascual v. Lowe's Home Centers, Inc., 193 F. App'x 229, 233 (4th Cir. 2006) ("In this case, at least three to four months separated the termination of Pascual's employment and the claimed protected activities. We find that this time period is too long to establish a causal connection by temporal proximity alone."). Thus, this five month span between protected activity and adverse action lends little help to establishing pretext. Further, Defendants argue that despite the timing of when Plaintiff received notice of his termination, decisions regarding his employment were made prior to his request for FMLA leave, by both RCRC and Plaintiff. It is undisputed that RCRC made the decision to move Plaintiff to the Director of Maintenance position prior to him taking the FMLA leave, and Plaintiff declined this position prior to taking his FMLA leave. See Investigation Letter (Ex. K to Pl. Motion); Pl. Dep. 118 (Ex. C to Def. Motion); Stringer Dep. 390; Dickerson Dep. 198; FMLA Approval (Ex. L to Pl. Motion). Defendants argue that termination of Plaintiff's employment was the necessary next step after he declined the new position but they allowed him FMLA and extended leave prior to making his termination official. There can be no causal connection when the termination decision was made prior to the exercise of protected rights. see, e.g., Reynolds v. Extendicare Health Servs., Inc., 257 Fed. Appx. 914, 921 (6th Cir. 2007) (no causal connection in Title VII retaliation case because even though adverse action occurred after protected activity, the decision was made prior to protected activity); Clark County School District v. Breeden, 532 U.S. 268, 272, 121 S. Cl. 1508, 149 L. Ed. 2d 509 (2001) ("Employers need not suspend previously planned [employment actions] upon discovering a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality."). Further undercutting Plaintiff's pretext argument is the fact that even after he exhausted his twelve weeks of FMLA leave, RCRC allowed him Extended Disability Leave of Absence. See, e.g., Moticka v. Weck Closure Sys., No. 05-1231, 2006 WL 1526532, at *8 (4th Cir. 2006) (unpublished) (noting that "the inference of retaliatory motive is undercut ... by the favorable treatment [the plaintiff] received [including leave extended beyond the FMLA's requirements] until her termination"); Blackwell v. Publix Super Markets, Inc., No. CV 6:16-2992-HMH-KFM, 2018 WL 953352, at *10 (D.S.C. Feb. 20, 2018) ("The record demonstrates the opposite of a retaliatory motive in that Publix retained Blackwell as an employee for an additional three months beyond his FMLA leave."). For these reasons, viewing the evidence in the record as a whole Plaintiff fails to present sufficient evidence to allow a fact-finder to conclude that Plaintiff was terminated in retaliation for using FMLA leave. Thus, summary judgment in favor of Defendant is appropriate.
D. Defamation
In his Amended Complaint, Plaintiff alleges that Defendants RCRC, Brown and Stringer falsely accused him of going to a park and telling another RCRC employee that Brown was going to be terminated for videos on social media. He also alleges that these Defendants made comments about Plaintiff being insubordinate and incompetent. Plaintiff alleges that these defamatory remarks were published to his coworkers, Board members, and others. Plaintiff further alleges that his suspension, including the removal of his badge, cell phone, keys, and email, further implied a defamatory inference by way of actions in addition to words that Plaintiff was guilty of improper behavior. Plaintiff alleges that the defamatory actions and words by Brown and other RCRC personnel were made within the course and scope of their employment and have directly and indirectly presented to the public at large the false insinuation that Plaintiff is insubordinate and unfit in his profession. Plaintiff alleges that this portrayal is false and made with malicious intent to harm him and in reckless disregard of the truth. Am. Compl. ¶¶ 23, 55-57.
The essential elements of a claim for defamation under South Carolina law are 1) a false and defamatory statement; 2) unprivileged publication to a third party by 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. Erickson v. Jones Street Publishers, LLC, 368 S.C. 444, 455, 629 S.E.2d 653, 664 (2006). With respect to the fourth element, defamation that is actionable irrespective of special harm is defamation per se, which includes defamatory statements regarding 1) the commission of a crime, 2) contraction of a loathsome disease, 3) adultery, 4) unchastity, or 5) unfitness in one's business or profession. Fountain v. First Reliance Bank, 398 S.C. 434, 442, 730 S.E.2d 305, 309 (S.C.2012) (citing Goodwin v. Kennedy, 347 S.C. 30, 36, 552 S.E.2d 319, 322-23 (S.C.Ct.App.2001)). Defamatory communications can be accomplished by actions or conduct in addition to spoken words. Erickson v. Jones Street Publishers, LLC, 368 S.C. 444, 465, 629 S.E.2d 653, 664 (2006).
The record reveals two written statements from Antoine Rush, dated March 24, 2016, and March 29, 2016, indicating that Plaintiff came to the park where he was working and told him that Brown needed to be fired. Rush and Wright Statements (Ex. J to Def. Motion). Rush then states that he told another employee about what Plaintiff had said and that employee spoke with Brown. Id. Alex Wright also submitted a statement that Rush told him that Plaintiff stopped by the park where he was working and told him that Brown needed to be fired. Id. Wright then went to Brown with the information. Id. Plaintiff denies visiting Rush at the park and making any statement regarding firing Brown. Pl. Rebuttal (Ex. L to Def. Motion); Pl. Dep. 88 (Ex. C to Def. Motion). Brown brought it to the attention of Dickerson and asked her to look into it. Dickerson Dep. 180-81; Stringer Dep. 375. Dickerson informed Stringer about the statements by Rush and Wright. Dickerson Dep. 181; Stringer Dep. 373-74. Dickerson conducted an investigation into the matter by speaking with Rush and Wright individually and then with Plaintiff along with Stringer and Sessions, another member of the HR department. Dickerson Dep. 186.
However, Plaintiff points to a telephone conversation he had with Rush while he was on suspension in which Rush told Plaintiff "I didn't know that Mr. Brown was trying to use me to get you fired." Pl. Dep. 94 (Ex. Z to Pl. Motion). He further stated "Alex Wright called me and told me I needed to do what Mr. Brown say do." Id. In addition, Sessions testified that Stringer told her Rush retracted his statement about Plaintiff. Sessions Dep. 116 (Ex. AA to Pl. Motion).
Defendants argue that any comments made by Brown to other employees of the RCRC with respect to the investigation of Rush's statement enjoy a qualified privilege. "A communication made in good faith on any subject matter in which the person communicating has an interest or duty is qualifiedly privileged if made to a person with a corresponding interest or duty even though it contains matter which, without this privilege, would be actionable." Murray v. Holnam, Inc., 344 S.C. 129, 140-41, 542 S.E.2d 743, 749 (SC.Ct.App. 2001) (citing Constant v. Spartanburg Steel Prods., Inc., 316 S.C. 86, 447 S.E.2d 194 (1994); Prentiss v. Nationwide Mut. Ins. Co., 256 S.C. 141, 181 S.E.2d 325 (1971)). "Communications between officers and employees of a corporation are qualifiedly privileged if made in good faith and in the usual course of business." Id. (citing Conwell v. Spur Oil Co., 240 S.C. 170, 125 S.E.2d 270 (1962)). "[F]or a communication to be privileged, the person making it must be careful to go no further than his interests or his duties require." Id. (citations omitted). However, for this qualified privilege to apply, the statements must have been made in good faith. Viewing the evidence in the light most favorable to Plaintiff, the record includes some evidence that Brown told Rush to make the statement against Plaintiff. Plaintiff testified that Rush told him that he was to do whatever Brown told him to do, and Sessions testified that Rush retracted his statement. If Brown did so, then the communications were not made in good faith and the privilege does not apply. As such, an issue of fact exists as to Plaintiff's defamation claim.
Plaintiff asserts his defamation claim against both RCRC and Brown. Defendants argue that Plaintiff cannot assert his claim against both of them under the South Carolina Tort Claims Act (SCTCA). Section 15-78-70(a) provides in part that "[a]n employee of a governmental entity who commits a tort while acting within the scope of his official duty is not liable therefor except as expressly provided for in subsection (b)." S.C.Code Ann. § 15-78-70(a). Subsection (b) declares: "Nothing in this chapter may be construed to give an employee of a governmental entity immunity from suit and liability if it is proved that the employee's conduct was not within the scope of his official duties or that it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude." S.C.Code Ann. § 15-78-70(b). Plaintiff argues that Brown's conduct was not within the scope of his official duties and, thus, subsection (b) applies. Section 15-78-30(I) defines "scope of official duty" as "(1) acting in and about the official business of a governmental entity and (2) performing official duties." S.C.Code Ann. § 15-78-30(i) (2005). For the same reasons an issue of fact exists with respect to defamation, an issue of fact exists as to whether Brown was acting within the scope of his official duties. "Whether immunity applies . . . depends upon the facts of the case, and, where material facts are disputed, summary judgment is inappropriate and '[i]mmunity under the statute is an affirmative defense that must be proved by the defendant at trial.'" Newkirk v. Enzor, 240 F. Supp. 3d 426, 437 (D.S.C. 2017) (quoting Frazier v. Badger, 361 S.C. 94, 603 S.E.2d 587, 590 (2004)). Therefore, summary judgment in Defendants' favor is not appropriate for either RCRC or Brown. See Fed.R.Civ.P. 8(d)(2) and (3) (allowing for the pleading of alternative theories of recovery).
E. Civil Conspiracy
In his motion for summary judgment, Plaintiff asserts that "Plaintiff was the victim of a civil conspiracy to terminate his employment at the hands of Defendants Brown, Dickerson, and Stringer." He argues that
Defendant Brown acted with hostility with an intent to end Plaintiff's employment; Defendant Dickerson and Defendant Stringer were complicit in carrying out these terms. (Cooper Deposition, p. 63:18-64:1, Stringer Deposition 83:7-15). They took his keys, work phone, work vehicle, and email, just as the plaintiff in Pridgen lost his work effects. (Lewis Deposition, pp. 88:19-89:2). This did not comply with Defendant RCRC's typical suspension policy; it meant he would be terminated. (Id.)Pl. Motion pp. 26-27.
In South Carolina, the tort of civil conspiracy has three elements: (1) a combination of two or more persons, (2) for the purpose of injuring the plaintiff, and (3) causing plaintiff special damage. Vaught v. Waites, 300 S.C. 201, 208, 387 S.E.2d 91, 95 (Ct.App.1989). Defendants first argue that Plaintiff's civil conspiracy claim fails because he fails to allege special damages caused by the alleged conspiracy. "A claim for civil conspiracy must allege additional acts in furtherance of a conspiracy rather than reallege other claims within the complaint," and "because the quiddity of a civil conspiracy claim is the special damage resulting to the plaintiff, the damages alleged must go beyond the damages alleged in other cause of action." Hackworth v. Greywood at Hammett, LLC, 385 S.C. 110, 682 S.E.2d 871, 874 (2009) (internal citations omitted). While general damages "are the immediate, direct, and proximate result of the" tortfeasor's conduct, special damages "are the natural, but not the necessary or usual, consequence of the" tortfeasor's conduct. Id. at 116-17, 682 S.E.2d at 875. With respect to this claim, Plaintiff refers to his damages alleged in his complaint, and notes that the court has already addressed this issue. He does not point to evidence in the record to support his allegations. Although Plaintiff's allegations of ostracization, isolation, embarrassment, or humiliation as a result of the civil conspiracy were sufficient to state a claim at the pleadings stage, the record as presented is insufficient to create an issue of fact as to these allegations and, thus, summary judgment in Defendants' favor is appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986) ("[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.").
V. CONCLUSION
For the reasons discussed above, it is recommended that Plaintiff's Motion for Summary Judgment (ECF No. 47) be denied, and Defendants' Motion for Summary Judgment (ECF No. 46) be denied as to Plaintiff's retaliation claim under Title VII and Plaintiff's defamation claim, and granted on all other claims.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge July 30, 2018
Florence, South Carolina