Opinion
C. A. 2:22-cv-1712-BHH-MHC
11-22-2022
Josia M. Strong, Plaintiff, v. Charleston County School District, Defendant.
Molly H. Cherry United States Magistrate Judge
Plaintiff filed this action in state court, alleging employment discrimination pursuant to several federal statutes, including 42 U.S.C. § 1981 and the Americans with Disabilities Act, as well as under state law. ECF No. 1-1. Defendant removed the case to this Court and filed its Answer on June 1, 2022. ECF No. 1.
This case falls under the Discovery Protocols for Charleston Division Employment Cases (Pilot Program), such that preliminary discovery is to be exchanged between the parties during the initial stages of the case. See Employment Case Pilot Program, 2:21-mc-00481-RBH.
Before the Court is Defendant's Motion for Partial Summary Judgment (“Motion”), ECF No. 12, filed pursuant to Rule 56 of the Federal Rules of Civil Procedure, seeking to dismiss three causes of action. Plaintiff filed a Response, ECF No. 17, and Defendant filed a Reply, ECF No. 18. The Motion is ripe for review.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motion be granted.
FACTUAL BACKGROUND
Plaintiff was employed as a teacher by Defendant, most recently as a physical education teacher for three days a week at Mitchell Elementary School. ECF No. 1-1 at ¶ 25. According to Plaintiff, in 2020, she informed the school principal and others that the Health and Wellness Act of 2005 was not being followed. Id. at ¶ 28. She also complained about other matters, including discrimination towards other employees, a teacher assistant yelling at students and safety concerns for students. Id. at ¶¶ 28-29.
Between late April 2020 and late July 2020, Defendant notified Plaintiff in writing of concerns over her interactions with colleagues and professionalism, among other things. April 29, 2020 Letter, ECF No. 12- 1; May 13, 2020 Letter, ECF No. 12-2; June 5, 2020 Employee Relations File Review, ECF No. 12-3; July 27, 2020 Addendum to Employee Relations File Review, ECF No. 12-6. It is undisputed that Defendant asked Plaintiff to provide a letter from a healthcare professional certifying that she was fit for duty as a teacher in Charleston County School District. Plaintiff alleges that because of the “systemic operation to have her terminated, [the principal] convinced others that [she] should not be allowed to return to work due to her mental health.” Id. at ¶ 31.
On or about August 7, 2020, Plaintiff received a letter placing her on administrative leave. ECF No. 1-1 at ¶ 35; August 10, 2020 Administrative Leave Letter, ECF No. 12-7 at 1-5. On August 10, 2020, Plaintiff received a letter indicating she needed a medical letter as a “fitness for duty.” ECF No. 1-1 at ¶ 36; ECF No. 12-7 at 1-5. Plaintiff alleges that she had several physicians provide statements that she was able to return to work. Id. at ¶ 33; see also August 11, 2020 Certification Letter from Dr. Alexis Jesup, ECF No. 12-8.
On August 31, 2020, in follow up to a query from Defendant, Plaintiff's physician rescinded her initial recommendation that Plaintiff was able to go back to work. August 31, 2020 Follow Up to Dr. Jesup, ECF No. 12-9; August 31, 2020 Rescission Letter from Dr. Alexis A. Jesup, ECF No. 12-10 at 1-5.
On September 3, 2020, Plaintiff received a letter of termination. ECF No. 1-1 at ¶ 37; September 3, 2020 Letter from Gerrita Postlewait, ECF No. 12-11 at 2-4.
Plaintiff filed an appeal of her termination, which appeal was denied as of February 10, 2021. ECF No. 1-1 at ¶¶ 38-39; January 29, 2021 Report and Recommendation and February 10, 2021 Order, ECF Nos. 12-12 and 12-13.
LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” See Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). The nonmoving party, however, “must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). When a party fails to establish an essential element to their case, “there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial,” thus the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991) (“[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.”).
DISCUSSION
Plaintiff's Complaint sets forth seven causes of action. Defendant has moved for summary judgment on three of those claims: the third cause of action for wrongful termination pursuant to the South Carolina Whistleblower Statute, the fourth cause of action for wrongful termination in violation of public policy, and the seventh cause of action for negligent supervision.
Plaintiff contends that Defendant's Motion is premature and “should be rejected by the Court as the Defendant has failed to provide any testimony that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law.” ECF No. 17 at 1. While the deadline for filing dispositive motions is January 27, 2023 (ECF No. 5), a party may file a dispositive motion in advance of the deadline. Moreover, testimony is not the only evidence a court can consider, and Defendant has presented documents in support of its position. Regardless, however, the determinative facts pertaining to Defendant's Motion are not in dispute.
For the reasons set forth below, the undersigned finds that there is no genuine issue of material fact, and Defendant is entitled to judgment as a matter of law on Plaintiff's third, fourth and seventh causes of action. Accordingly, the undersigned recommends that Defendant's Motion for Partial Summary Judgment be granted.
A. THIRD CAUSE OF ACTION: WRONGFUL TERMINATION UNDER THE SOUTH CAROLINA WHISTLEBLOWER STATUTE, SC CODE ANN. § 8-27-10, ET SEQ.
Plaintiff's third cause of action for wrongful termination under “the South Carolina Whistleblower Statute” (the Act) is based on her allegation that Defendant fired her “for her reports and protests for a failure to follow the law.” ECF No. 1-1 at ¶ 98. Specifically, she alleges that Defendant fired her because she “reported violations of the law, failure to properly provide PE to children, request to provide false information in order to make it appear the Defendant was complying with the law and a failure not to properly utilize funds to comply with the law.” Id. at ¶ 97.
Defendant argues that Plaintiff's claim is barred by the applicable statute of limitations. ECF No. 12 at 5-7. The statute of limitations under the South Carolina Whistleblower's Act, SC Code Ann. § 8-27-10 et seq., is one year. Any action under the Act “must be commenced within one year after the accrual of the cause of action or exhaustion of all available grievance or other administrative and judicial remedies or is forever barred.” S.C. Code Ann. § 8-27-30(B).
The Act also provides that “no action may be brought under this chapter unless (1) the employee has exhausted all available grievance or other administrative remedies; and (2) any previous proceedings have resulted in a finding that the employee would not have been disciplined but for the reporting of alleged wrongdoing.” S.C. Code Ann. § 8-27-30(A). Defendant argues that Plaintiff failed to exhaust her administrative remedies because she did not appeal the decision of the Board of Trustees. ECF No. 12 at 7 (citing Billioni v. Bryant, No. 0:14-cv-03060-JMC, 2015 WL 4928999, at *8 (D.S.C. Aug. 18, 2015) (Whistleblower Act claim dismissed due to plaintiff's failure to exhaust all of his administrative remedies). Defendant also contends that Plaintiff cannot show that “any previous [administrative] proceedings have resulted in a finding that [she] would not have been disciplined but for the reporting of the alleged wrongdoing.” ECF No. 12 at 6. There is no evidence before the Court that Plaintiff exhausted her administrative remedies; however, Plaintiff contends that she did. ECF No. 17 at 2. Plaintiff does not address the second prerequisite. Nonetheless, in light of Plaintiff's concession on the statute of limitations, the undersigned does not further address Defendant's alternative argument.
Plaintiff acknowledges in her Response that she did not file her lawsuit in this case within the applicable one-year statute of limitations. ECF No. 17 at 2 (“The Plaintiff . . . failed to file within one year of the exhaustion.”). Plaintiff's termination was upheld by Defendant's Board of Trustees on February 10, 2021. ECF No. 12-13. Accordingly, any cause of action under the Act accrued on February 10, 2021. Baber v. Greenville Cnty., 488 S.E.2d 314, 318 (S.C. 1997) (Whistleblower Act action accrued when County Council “formally voted” to affirm plaintiff's termination). Plaintiff did not file her lawsuit until April 6, 2022 - more than one year after the cause of action accrued. Therefore, Plaintiff's claim for wrongful termination under the S.C. Whistleblower Act is barred by the statute of limitations. Accordingly, the undersigned recommends granting summary judgment to Defendant on this claim.
B. FOURTH CAUSE OF ACTION: WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY
Plaintiff's fourth cause of action for wrongful termination in violation of public policy is based on her allegation that Defendant fired her “because she reported violations of the Health and Wellness Act of 2005, failure to provide a safe environment for children, and failing to provide the proper amount of Physical Education for children.” ECF No. 1-1 at ¶ 102. She also alleges that her principal requested that she provide “false information,” and that she “reported all of her concerns regarding requests to provide false information, false test results and safety concerns to all proper entities.” Id. at ¶¶ 103, 108.
Under South Carolina law, the public policy exception to at-will employment does not apply when “the employee has an existing remedy for a discharge that allegedly violates rights other than the right to the employment itself.” Bauer v. Summey, 568 F.Supp.3d 573, 602 (D.S.C. 2021) (finding 42 U.S.C. § 1983 was existing remedy that barred employees from alleging that their discharge violated their constitutional rights under public policy exception to at-will employment in South Carolina); see Epps v. Clarendon Cnty., 405 S.E.2d 386, 387 (S.C. 1991) (affirming dismissal of wrongful discharge claim where public employee had existing remedy pursuant to 42 U.S.C. § 1983 for violation of his First Amendment rights) see also Heyward v. Monroe, 166 F.3d 332, at *4 (4th Cir. 1998) (explaining that while “South Carolina permits an action under the public policy exception when an at-will employee is terminated for refusing to violate the law,” that exception “has not been extended to circumstances where there is a statutory remedy for employment discrimination”); Boozer v. MCAS Beaufort, No. 2:14-CV-3312 DCN JDA, 2015 WL 1640473, at *5 (D.S.C. Apr. 9, 2015) (wrongful discharge in violation of public policy claim pre-empted by FLSA anti-retaliation statute).
As a public school teacher, Plaintiff is a public employee. The United States Supreme Court has recognized 42 U.S.C. § 1983 as a viable method for aggrieved public at-will employees to bring claims for damages from employment decisions that violate the United States Constitution. Bauer, 568 F.Supp.3d at 602 (citing Rutan v. Republican Party of Ill., 497 U.S. 62 (1990)). And, the South Carolina Supreme Court has found that, in the context of the public policy exception, § 1983 is an existing remedy that bars an employee from alleging that his discharge violated his constitutional rights under the public policy exception. Id. (citing Epps, 405 S.E.2d 386).
Indeed, in this case, Plaintiff has asserted a § 1983 claim in her sixth cause of action, claiming that Defendant violated her First Amendment rights, based upon her allegation that Defendant retaliated against her because she “attempted to speak out regarding her public concerns for School [sic] and their failure to provide proper PE.” ECF No. 1-1 at ¶ 128). Thus, Plaintiff has an existing remedy under § 1983 for a discharge that allegedly violates her rights, such that her claim for wrongful discharge in violation of public policy is barred. See Epps, 405 S.E.2d at 387. Accordingly, the undersigned recommends granting summary judgment to Defendant on this claim.
Plaintiff cites several cases addressing South Carolina's public policy exception to employment at-will, including Epps v. Clarendon Cnty., 405 S.E.2d 386, 387 (1991), in which the court found that the plaintiff's wrongful discharge claim was pre-empted and dismissed because she could have brought a claim under 42 U.S.C. § 1983. Plaintiff's claim under 42 U.S.C. § 1983 is virtually identical to her wrongful termination cause of action, and she has not distinguished the two claims or otherwise offered a viable explanation as to why the wrongful termination is not barred.
C. SEVENTH CAUSE OF ACTION: NEGLIGENT SUPERVISION
Plaintiff's seventh cause of action for negligent supervision is based on her allegations that Defendant “failed and refused to protect the Plaintiff and allowed [Principal] Smith to harass, intimidate, bully and inflict emotional distress on Plaintiff without justification.” ECF No. 1-1 at ¶ 139. Defendant argues that the claim is barred by the doctrine of workers' compensation exclusivity. ECF No. 12 at 8-9. The undersigned agrees.
The South Carolina's Worker's Compensation Act, SC Code Ann. § 42-1-540 (the “Act”) provides that “[e]very employer and employee . . . shall be presumed to have accepted the provisions of the [Act] respectively to pay and accept compensation for personal injury . . . arising out of and in the course of the employment and shall be bound thereby.” S.C. Code Ann. § 42-1310. A “personal injury” is “an injury by accident arising out of and in the course of employment.” S.C. Code Ann. § 42-1-160(A).
The Act's exclusivity provision states, in relevant part, the following:
The rights and remedies granted by this title to an employee when he and his employer have accepted the provisions of this title, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee . . . as against his employer, at common law or otherwise, on account of such injury, loss of service or death.S.C. Code Ann. § 42-1-540. Based on this provision, South Carolina courts hold that the Act provides the exclusive remedy against an employer for an employee who sustains injuries arising out of his employment. Sabb v. S.C. State Univ., 567 S.E.2d 231, 234 (S.C. 2002); see Dickert v. Metropolitan Life Ins. Co., 428 S.E.2d 700 (S.C. 1993) (the Act provides exclusive remedy for employees who sustain work-related injury, and claims of negligence for failure to exercise reasonable care in selection, retention, and supervision of co-employee are covered by the Act); Lasher v. Day & Zimmerman Int'l, Inc., 516 F.Supp.2d 565 (D.S.C. 2007) (the Act preempted former employee's claims against employer for intentional infliction of emotional distress and negligent supervision/retention based on her alleged sexual harassment by her co-workers “because [the claims] allege personal injury arising out of and in the course of her employment”).
Federal and state courts in South Carolina have held that state law claims for negligence, including claims for negligent supervision, retention, and hiring, are preempted by the Act. See, e.g., Alexander v. S.C. Dep't of Transportation, No. CV 3:20-4480-TLW-SVH, 2021 WL 5167807, at *9 (D.S.C. Aug. 23, 2021) (plaintiff's claim that his employer “ha[d] a duty that it breached to protect Plaintiff from a hostile work environment and retaliation” was a negligence claim that was barred by the exclusivity provision of the Act); Lugo v. Boeing Co., No. 2:19-CV-2995-RMG, 2020 WL 495336, at *4 (D.S.C. Jan. 30, 2020) (“Because Plaintiff's negligent supervision claim clearly arises out of and in the course of his employment with Defendant, and as both federal and state courts in South Carolina have held the Act preempts negligent hiring and supervision claims, Plaintiff's negligent supervision claim is dismissed.” (internal quotation marks omitted)); Ray v. Bechtel Savannah River, Inc., No. CIV.A.1:06 2946 HFF, 2007 WL 1960587, at *1-2 (D.S.C. July 2, 2007) (granting motion to dismiss and finding that plaintiff's claims for negligence, negligent hiring, and negligent supervision and training clearly do not fall under any of the exceptions of the Act); Saab, 567 S.E.2d 231, 234 (S.C. 2002) (finding that the Act provides the exclusive remedy for employee's claims of negligent supervision and negligent retention arising out of and in the course of her employment); Dickert, 428 S.E.2d at 701 (holding that the Act provides the exclusive remedy for work-related injuries, and that claims for negligence, including hiring, retention and supervision, as well as emotional distress, are covered by the Act).
Plaintiff argues that her cause of action falls outside the parameters of the workers' compensation exclusivity provision because, she asserts, workers' compensation claims are specific to accidents, not the “intentional acts” of the employer's agents. ECF No. 17 at 12. In making this argument, Plaintiff relies upon cases such as Charleston, SC Registry for Golf & Tourism, Inc. v. Young Clement Rivers & Tisdale, LLP, 598 S.E.2d 717 (S.C. 2004). ECF No. 17 at 11-12. However, that case pertained to claims of a third party for actions by a defendant's employee, and, as such, is inapposite to the case at hand.
Furthermore, Plaintiff has not shown that any of the exceptions to the exclusivity provision apply in this case. The Supreme Court of South Carolina has explained that the only exceptions to the Act's exclusivity provisions are: (1) where the injury results from the act of a subcontractor who is not the injured person's direct employer; (2) where the injury is not accidental but rather results from the intentional act of the employer or its alter ego; (3) where the tort is slander and the injury is to reputation; or (4) where the Act specifically excludes certain occupations. Cason v. Duke Energy Corp., 560 S.E.2d 891, 893 n.2 (S.C. 2002); see Kerr v. Hammond School, No. 3:17-3109-JFA-KFM, 2018 WL 3132409, at *2 (D.S.C. Feb. 22, 2018). With respect to the second exception, which is the only one that addresses intentional acts, the S.C. Supreme Court has made clear that the term “alter ego” does not include “supervisory employees” like Principal Smith, but rather includes only “dominant corporate owners and officers.” See Dickert, 428 S.E.2d at 701. Plaintiff has neither alleged nor shown that Principal Smith was the alter ego of the School District.
Here, Plaintiff brings her claim as an employee against her employer for negligent supervision, which falls under the purview of the workers' compensation exclusivity provision. See Brown v. Iqor U.S. Inc., No. CA 2:14-2638-PMD-MGB, 2015 WL 1351491, at *4 (D.S.C. Mar. 24, 2015) (“South Carolina courts applying § 42-1-540 have specifically held that an employee's claims against an employer for injury based on negligent supervision are covered by the Workers' Compensation Act.”). As set forth above, that claim is barred by the doctrine of workers' compensation exclusivity, and Plaintiff has not demonstrated otherwise. See Bradley v. U.S. Foods, Inc., No. 4:14-CV-1772-RBH, 2015 WL 5158731, at *26 (D.S.C. Sept. 2, 2015) (noting that “a cause of action for negligent retention and supervision is, by definition, not an intentional act”) (emphasis in original). Accordingly, the undersigned recommends granting summary judgment on this claim.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion for Partial Summary Judgment, ECF No. 12, be GRANTED and Plaintiff's third cause of action for wrongful termination under the South Carolina Whistleblower Statute; fourth cause of action for wrongful termination in violation of public policy; and seventh cause of action for negligent supervision be DISMISSED.
The parties are referred to the Notice Page attached hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).