Opinion
Civil Action 4:20-cv-3342-JD-TER
03-31-2021
HANNAH J. SECKA, Plaintiff, v. FLORENCE COUNTY SCHOOL DISTRICT THREE; LAURA HICKSON, Superintendent; FLORENCE COUNTY SCHOOL DISTRICT THREE; and BOARD OF TRUSTEES, FLORENCE COUNTY SCHOOL DISTRICT THREE, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
I. INTRODUCTION
This action arises from Plaintiff's employment with and subsequent termination from Florence County School District Three. Plaintiff originally filed this case in the Florence County Court of Common Pleas, and Defendants removed the action to this court. Presently before the court is Defendants' Motion to Dismiss (ECF No. 5). Plaintiff filed a Response (ECF No. 8) on November 13, 2021. 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. This report and recommendation is entered for review by the district judge.
II. FACTUAL ALLEGATIONS
Plaintiff began her employment in 2013 when she was hired as a Teacher/Math Interventionist within the District. Most recently, she was an Academic Interventionist Assistant/APEX Learning Virtual School Facilitator at Lake City High School. Compl. ¶ 6 (ECF No. 1-1). On or about, October 5, 2017, Plaintiff went to Angelia Barr-Scott, Human Resource Director (hereinafter “HR Director Barr-Scott”) and complained that Plaintiff had been sexually harassed and assaulted by a colleague Randolph Brown on the Alternative Education Center (ACE) Campus. Compl. ¶ 7. On or about December 1, 2017, HR Director Barr-Scott investigated the sexual assault allegations and Plaintiff was called a “liar” and suggested that Plaintiff did not have evidence to substantiate the allegations. Further, HR Director Barr-Scott accused Plaintiff of sexually harassing Mr. Brown and violating the District's Code of Ethics. HR Director Barr-Scott called Plaintiff several disgusting, degrading and derogatory names such as “crazy idiot” and “trouble maker.” Compl. ¶ 8. On or about December 18, 2017, Plaintiff filed a Notice of Charge for Discrimination with the South Carolina Human Affairs Commission (SCHAC) and the Equal Employment Opportunity Commission. Compl. ¶ 9. On or about, March 14, 2018, prior to mediation, Plaintiff withdrew her SCHAC/EEOC Complaint based on assurances of job security and protections from further retaliation and harassment from Defendant Superintendent Hickson. Compl. ¶ 13. On or about January 25, 2018, as an Academic Interventionist Assistant/APEX Learning Virtual School Facilitator, Plaintiff uncovered numerous violations in the program's implementation, which was communicated to Ned Blake, then principal of Lake City High School and Defendant Superintendent Hickson. Plaintiff found improper grade changing for athletes, improper access to grades by unauthorized personnel, manipulation and creation of false data, and flagrant failures to follow federal guidelines by teachers and administrators assigned to the program. Compl. ¶ 14. On or about March 6, 2019, Lori Flegler, Guidance Counselor at Lake City High School (hereinafter “Guidance Counselor Flegler”) requested from Plaintiff answers to quizzes and test for the “Government” course on APEX for Guidance Counselor Flegler's daughter, who was enrolled in the class at a neighboring high school. Compl. ¶ 15. Plaintiff denied Guidance Counselor Flegler's illegal and unethical request and communicated it to her immediate supervisor Ed Brogdon, the Virtual School Administrator, Dr. Matthew Scandrol, then Principal at Lake City High School, HR Director Barr-Scott and Defendant Superintendent Hickson. Compl. ¶ 16. On or about December 11, 2019 Plaintiff forwarded a complaint of harassment, intimidation and bullying to the Co-Principal Moore, HR Director Barr-Scott, and Defendant Superintendent Hickson against Co-Principal Barr-Singletary. Compl. ¶ 19. On or about, January 8, 2020, with the threats, harassment, cruel comments and vicious name calling, such as “Half-White B**CH” from Co-Principal Barr-Singletary, Plaintiff sent an email to Co-Principal Moore and Defendant Superintendent Hickson regarding Co- Principal Barr-Singletary soliciting students to record and videotape Plaintiff during instructional time. Compl. ¶ 22. On or about January 30, 2020, Plaintiff sent Defendant Superintendent Hickson a “whistleblower” letter stating Plaintiff's concerns of bias and unfair investigations, harassment and retaliation being conducted by the HR Director Barr-Scott, and her relative Co- Principal Barr-Singletary, which continually contributed to a hostile work environment. Compl. ¶ 26. On or about February 14, 2020, Plaintiff was suspended without pay by HR Director Barr-Scott for allegedly talking “negatively” and “harassing' a student who was not in Plaintiff's class. The student threatened physical harm to Plaintiff on several occasions, however, the student's unacceptable conduct was never addressed by Defendant School District at any level. Compl. ¶ 27. Also, on or about February 14, 2020, Plaintiff sent a letter to Florence County School District Three Board Chairperson Barbara Bryant and Board member Ja'Kel Brown regarding Plaintiff's numerous suspensions without pay, denial of Due Process rights for retaliation, harassment and whistleblower laws against school officials Co-Principal Moore, Co-Principal Barr-Singletary and HR Director Barr-Scott. Compl. ¶ 28. On or about March 12, 2020, HR Director Barr-Scott, informed Plaintiff that she did not find any evidence supporting Plaintiff's claims against her relative Co- Principal Barr-Singletary as outlined in Plaintiff's Employee Grievance. Plaintiff requested and was denied a hearing before the Board of Trustees. Compl. ¶ 29. On or about March 31, 2020, Plaintiff was notified by Defendant Superintendent Hickson, that Plaintiff's employment had been terminated from Florence County School District Three based on Plaintiff allegedly contacting a student while on suspension without pay. Again, Plaintiff requested and was denied a hearing before the Defendant Board of Trustees. Compl. ¶ 30. Plaintiff alleges that she is entitled to damages. Compl. ¶¶ 37, 44, 56, 63, 70 and 80.
III. STANDARD OF REVIEW
Defendants move for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion examines whether Plaintiff has stated a claim upon which relief can be granted. The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:
[T]he pleading standard Rule 8 announces does not require “detailed factual allegations, ” but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir.2003).
IV. DISCUSSION
Defendants move to dismiss Plaintiff's claims for wrongful termination in violation/whistleblower action, negligent supervision, hostile work environment in violation of 42 U.S.C. § 1981, and intentional infliction of emotional distress. With respect to her § 1981 claim, Plaintiff alleges that she was subjected to a hostile work environment on the basis of her sex. However, section 1981 prohibits racial discrimination in the making and enforcing of contracts. Runyon v. McCrary, 427 U.S. 160, 161, 96 S.Ct. 2586, 2590, 49 L.Ed.2d 415 (1976). “It's coverage . . . does not extend to sex discrimination.” Ham v. Parker, No. 2:13-CV-00986-RMG, 2014 WL 6879294, at *2 (D.S.C. Dec. 5, 2014) (citing Cornell v. Gen. Elec. Plastics, 853 F.Supp. 221, 223 (S.D.W.Va.1994) (collecting cases)). Accordingly, it is recommended that Plaintiff's § 1981 claim be dismissed.
Plaintiff also asserts causes of action for breach of contract and denial of due process, which are not at issue in the present motion.
Defendants argue that Plaintiff's wrongful termination in violation of public policy cause of action be dismissed for two reasons. First, Defendants argue that Plaintiff has not alleged that her employer required her to violate the law or that her termination itself was a violation of criminal law. Second, Defendants argue that a statutory remedy already exists as to Plaintiff's allegations of wrongful termination, which precludes a wrongful termination in violation of public policy cause of action.
Generally speaking, South Carolina law allows an employer to discharge an employee without incurring liability for good reason, no reason, or bad reason. Culler v. Blue Ridge Elec. Coop., 309 S.C. 243, 245, 422 S.E.2d 91, 92 (1992). However, the South Carolina Supreme Court has recognized a “public policy” exception to this doctrine. Ludwick v. This Minute of Carolina, Inc., 287 S.C. 219, 225, 337 S.E.2d 213, 216 (1985). In Ludwick, the court held that an employee has a tort cause of action for wrongful discharge where there is a retaliatory discharge of the at-will employee in violation of a clear mandate of public policy. Id. The public policy exception clearly applies in cases where the employer either (1) requires the employee to violate the law, or (2) the reason for the employee's termination is itself a violation of criminal law. Lawson v. South Carolina Dep't of Corrections, 340 S.C. 346, 350, 532 S.E.2d 259, 260 (2000).
Plaintiff alleges that her employment was terminated as a result of her “numerous reports of Defendants' unlawful and unethical wrongdoings.” Compl. ¶ 33. Defendants argue that because Plaintiff has not alleged that her employer required her to violate the law or that the termination itself was in violation of criminal law, then Plaintiff has failed to state a claim for wrongful termination in violation of public policy. However, “[w]hile the public policy exception applies to situations where an employer requires an employee to violate the law or the reason for the termination itself is a violation of criminal law, the public policy exception is not limited to these situations.” Barron v. Labor Finders of S.C., 393 S.C. 609, 614, 713 S.E.2d 634, 636-37 (2011). Thus, “an at-will employee may have a cause of action for wrongful termination even if the discharge itself did not violate criminal law or the employer did not require the employee to violate the law.” Id. at 614-15, 713 S.E.2d at 637. Nevertheless, the public policy exception “has not yet been extended beyond [these two situations].” McNeil v. S.C. Dep't of Corr., 404 S.C. 186, 192, 743 S.E.2d 843, 846 (Ct.App.2013); see also Taghivand v. Rite Aid Corp., 411 S.C. 240, 243, 768 S.E.2d 385, 387 (2015) (“While we have made clear that the exception is not limited to these situations, we have specifically recognized no others.” (internal quotation marks omitted))
This court need not speculate as to whether the South Carolina Supreme Court would recognize a public policy exception under the facts alleged here because the public policy exception does not extend to situations where the employee has an existing statutory remedy for wrongful termination. See Dockins v. Ingles Markets, Inc., 306 S.C. 496, 413 S.E.2d 18 (1992) (employee allegedly terminated in retaliation for filing complaint under Fair Labor Standards Act had existing statutory remedy for wrongful termination); see also Epps v. Clarendon County, 304 S.C. 424, 405 S.E.2d 386 (1991) (employee had an existing remedy for wrongful termination under Title 42 U.S.C. § 1983). The public policy exception “is not designed to overlap an employee's statutory or contractual rights to challenge a discharge, but rather to provide a remedy for a clear violation of public policy where no other reasonable means of redress exists.” Stiles v. Am. Gen. Life Ins. Co., 335 S.C. 222, 228 (1999).
Defendants argue that Plaintiff has an existing statutory remedy under South Carolina's Whistleblower Act, SC Code Ann. § 8-27-10, et seq. The Act provides protection for employees who report “substantial abuse, misuse, destruction, or loss of substantial public funds or public resources” or “that a public employee has intentionally violated federal or state statutory law or regulations” S.C. Code Ann. § 8-27-10(5). Specifically, the Whistleblower Act allows an employee so harmed to bring a nonjury, civil action against the employing public body for reinstatement to her former position, lost wages, actual damages, and reasonable attorney fees. S.C. Code Ann. § 8-27-30(A). As stated above, Plaintiff alleges that her employment was terminated as a result of her “numerous reports of Defendants' unlawful and unethical wrongdoings, ” Compl. ¶ 33, and she labels her cause of action one for “wrongful termination in violation/whistleblower action.” Thus, her claim falls within the protection provided by the Whistleblower Act. Plaintiff argues that the court “has not limited extension of the public policy exception to the Whistleblowers Act.” Pl. Resp. p. 7. However, the South Carolina Supreme Court specifically addressed the issue presented here in Lawson v. South Carolina Department of Corrections, 340 S.C. 346, 532 S.E.2d 259 (2000). There, the plaintiff asserted a claim for both a violation of the Whistleblower Act and for wrongful discharge in violation of public policy. Id. at 260-61. The Court noted that “when a statute creates a substantive right (i.e. the Whistleblower statute) and provides a remedy for infringement of that right, the plaintiff is limited to that statutory remedy.” Id. at 261 (citing Campbell v. Bi-Lo, 301 S.C. 448, 392 S.E.2d 477 (Ct.App.1990)). As such, the Court affirmed the dismissal of the wrongful discharge cause of action. Likewise here, because Plaintiff has an existing remedy under the Whistleblower Act, dismissal of her wrongful discharge cause of action is appropriate. Therefore, it is recommended that Defendants' motion be granted as to Plaintiff's wrongful discharge in violation/whistleblower action.
Defendants also move to dismiss Plaintiff's negligent supervision claim. They argue that Plaintiff's claim fails because Defendants do not owe a duty to Plaintiff as an at-will employee. Plaintiff alleges that Defendants failed to use due care in supervising HR Director Barr-Scott, Co-Principal Moore, and Co-Principal Barr-Singletary, who “misuse[d] their supervisory authority over Plaintiff to target disciplinary actions for conduct that was not in violation of District policy.” Compl. ¶¶ 39-40. Generally speaking, a person incurs no liability when he fails to take steps to protect others from harm not created by his own wrongful conduct. Rayfield v. South Carolina Dep't of Corrections, 297 S.C. 95, 100, 374 S.E.2d 910, 913 (Ct.App.1988). However, an employer is under a duty in some circumstances to exercise reasonable care to control an employee acting outside the scope of employment. Degenhart v. Knights of Columbus, 309 S.C. 114, 116, 420 S.E.2d 495, 496 (1992). As noted in Degenhart, that duty can arise in different ways, including via contract. Id. Contrary to Defendants argument, even if a duty arises by contract, the claim still sounds in negligence rather than in contract. Here, Plaintiff has alleged that she entered into an employment contract with Defendant Florence County School District Three. As such, she has alleged sufficient facts with respect to a duty owed to her that dismissal of Plaintiff's negligent supervision cause of action against Defendant Florence County School District Three on this basis would be premature.
Further, pursuant to S.C. Code Ann. § 59-19-90(2), a school district's board of trustees employs and terminates the employment of teachers. Defendants do not specifically address Plaintiff's negligent supervision cause of action as to Defendant Board of Trustees. Therefore, dismissal of this claim against such Defendant is not proper at this time.
However, section 15-78-70(a) of the South Carolina Tort Claims Act (SCTCA), provides that “[t]his chapter constitutes the exclusive remedy for any tort committed by an employee of a governmental entity. An 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).” An employee does not have immunity from suit “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). Additionally, the SCTCA expressly states that “employee conduct outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude” is an exception to South Carolina's waiver of immunity. S.C. Code Ann. § 15-78-60(17). “When a plaintiff claims an employee of a state agency acted negligently in the performance of his job, the South Carolina Tort Claims Act requires a plaintiff to sue the agency for which the employee works, rather than suing the employee directly.” Faile v. S.C. Dep't of Juvenile Justice, 350 S.C. 315, 321 n. 1, 566 S.E.2d 536, 539 n. 1 (2002). Defendant Hickson was an employee of Florence County School District Three and there are no allegations in the complaint that she acted outside the scope of her official duties or that her conduct constituted actual fraud, actual malice, intent to harm or was a crime involving moral turpitude. See Elder v. Gaffney Ledger, 341 S.C. 108, 117, 533 S.E.2d 899 (2000) (noting that these statutory phrases are terms of art clearly intended to apply to specific situations where an employee's behavior is so wildly beyond what could have been anticipated or managed by his or her employer that the state cannot reasonably be held responsible for it). Therefore, Defendant Hickson cannot be liable for negligent supervision and dismissal of the claim against her is appropriate.
See, e.g., Moore by Moore v. Berkeley County School Dist., 326 S.C. 584, 486 S.E.2d 9, 11 (S.C.App.1997) (analyzing claim against school district under the SCTCA); Doe v. Greenville Cty. Sch. Dist., 375 S.C. 63, 70-71, 651 S.E.2d 305, 309 (2007) (noting a negligent supervision claim against the school district was brought pursuant to the SCTCA)..
Finally, Defendants also move for dismissal of Plaintiff's cause of action against Defendant Hickson for intentional infliction of emotional distress. To recover for intentional infliction of emotional distress, a plaintiff must establish that:
the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from his conduct; (2) the conduct was so ‘extreme and outrageous' as to exceed ‘all possible bounds of decency' and must be regarded as ‘atrocious, and utterly intolerable in a civilized community; (3) the actions of the defendant caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was ‘severe' so that ‘no reasonable man could be expected to endure it.Ford v. Hutson, 276 S.C. 157, 276 S.E.2d 776 (1981) (internal citations omitted) (adopting the Restatement (Second) of Torts § 46.). Defendants argue that Plaintiff's factual allegations are insufficient to allege that Defendant Hickson's conduct was so extreme and outrageous as to exceed all possible bounds of decency. Plaintiff alleges
72. That Plaintiff was falsely accused by HR Director Barr-Scott, Co-Principal Moore and Co- Principal Barr-Singletary of numerous unsubstantiated actions which resulted in numerous suspensions without pay against Plaintiff. Defendant Superintendent Hickson upheld the actions of HR Director Barr-Scott, Co-Principal Moore and Co- Principal Barr-Singletary.
73. That Defendant Superintendent Hickson despite having a duty to investigate the matters, instituted a pseudo-investigation into the matters and drew unsubstantiated and erroneous conclusions adverse to Plaintiff's interest finding that she exercised poor judgment.
74. That Plaintiff was not given the opportunity to present her side of the controversy
before adverse employment decisions were made and instituted against her.
75. That Plaintiff was called “yellow B”CH” and “Red WH””RE” and rumors were circulated about having alleged sexual relationships with male employees.
76. That Plaintiff was suspended without pay numerous times without given a grievance hearing as required by the employer's progressive disciplinary policy.
77. That the above conduct is so outrageous that it should not be tolerated in a civilized society.Compl. ¶¶ 72-77. The question of whether a defendant's conduct may be reasonably regarded as so extreme and outrageous as to allow recovery is a question for the court to determine in the first instance. Butts v. AVX Corp., 292 S.C. 256, 355 S.E.2d 876 (Ct. App. 1987). The South Carolina Supreme Court has instructed that trial courts have a “significant gatekeeping role” in analyzing whether the alleged conduct was sufficiently outrageous and the emotional distress sufficiently severe to survive a motion to dismiss. AJG Holdings LLC v. Dunn, 392 S.C. 160, 708 S.E.2d 218 (Ct. App. 2011) (citing Hansson v. Scalise Builders of S.C., 374 S.C. 352, 358, 650 S.E.2d 68, 72 (2007)). Plaintiff's allegations with respect to Defendant Hickson are that she upheld false accusations against Plaintiff by other employees without conducting an appropriate investigation, including not allowing Plaintiff to present her side of the controversy. Plaintiff asserts that Defendant Hickson failed to take any preemptive actions to prevent the abuse targeted and directed toward Plaintiff. Pl. Resp. p. 10. These factual allegations are insufficient to arise to the level of so extreme and outrageous as to exceed all possible bounds of decency. Generally, “unprofessional, inappropriate, ” and “extremely insensitive” behavior is insufficient to establish a claim for intentional infliction of emotional distress absent hostile or abusive encounters or coercive or oppressive conduct. Gattison v. South Carolina State College, 318 S.C. 148, 157, 456 S.E.2d 414, 419 (Ct. App. 1995); see also Wright v. Sparrow, 298 S.C. 469, 381 S.E.2d 503 (Ct.App.1989) (holding that an employer plotting to build a case to justify firing plaintiff by loading her with responsibility while stripping her of authority, and by changing the way she should perform her duties and then accusing her of not following directions was not so extreme and outrageous as to exceed all bounds of decency). Thus, dismissal of the intentional infliction of emotional distress cause of action is appropriate.
Plaintiff argues that, in the alternative, she should be allowed to amend her complaint to cure any deficiencies. Dismissal as to Plaintiff's § 1981 claim, wrongful termination in violation of public policy claim, and negligent supervision claim as to Defendant Hickson is proper as a matter of law. No. amendment to the complaint could cure the deficiencies that § 1981 does not provide a cause of action for discrimination based on sex, that no wrongful termination cause of action exists where the plaintiff already has a statutory remedy, or that SCTCA precludes a negligent supervision claim against Defendant Hickson. However, the deficiencies with respect to Plaintiff's claim for intentional infliction of emotional distress are pleading deficiencies. That is, the factual allegations currently in the complaint are insufficient to state a cause of action as to this claim. Thus, in theory, it is possible to cure these deficiencies with additional factual allegations.
V. CONCLUSION
Therefore, for the reasons discussed above, it is recommended that Defendants' Motion to Dismiss be granted as to Plaintiff's cause of action for sex discrimination pursuant to § 1981, for wrongful termination in violation of public policy, for negligent supervision as to Defendant Hickson, and for intentional infliction of emotional distress. It is recommended that Defendants' Motion to Dismiss be denied as to Plaintiff's negligent supervision cause of action against Defendant Florence County School District Three and Defendant Board of Trustees. However, it is further recommended that Plaintiff be allowed fifteen days to file a motion to amend her complaint with respect to her intentional infliction of emotional distress claim.
As stated above, Defendants did not move for dismissal of Plaintiff's causes of action for breach of contract and denial of due process. Those claims remain pending.