Presley v. Beaufort Cnty. Sch. Dist.

Susan Presley, Plaintiff, v. Beaufort County School District, Defendant.

Civil Action No. 9:18-1945-BHH

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA BEAUFORT DIVISION

March 2, 2021

OPINION AND ORDER

This matter is before the Court for review of the Report and Recommendation entered by United States Magistrate Judge Kaymani D. West on July 9, 2020 ("Report"). (ECF No. 57.) In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2) for the District of South Carolina, this case was referred to Magistrate Judge West for pretrial handling. In her Report, the Magistrate Judge recommends that Defendant Beaufort County School District's ("Defendant" or "School District") motion for summary judgment be granted in part and denied in part. (See id.) The Report sets forth in detail the relevant facts and standards of law, and the Court incorporates them here without recitation.¹

BACKGROUND

The Magistrate Judge entered her Report on July 9, 2020, recommending that Defendant's motion for summary judgment be denied as to Plaintiff Susan Presley's ("Plaintiff") claims of race-based and age-based discrimination, and granted as to herclaim of slander per se. (ECF No. 57 at 33.) On July 23, 2020, Plaintiff filed objections challenging the portion of the Report that recommends the Court dismiss her slander claim. (ECF No. 59.) Defendant filed objections on the same day, challenging the portions of the Report that recommend the Court deny summary judgment as to Plaintiff's race-based and age-based discrimination claims. (ECF No. 60.) On August 6, 2020, each party filed a reply to the other party's objections. (ECF No. 61 & 62.) The matter is ripe for consideration and the Court now makes the following ruling.

STANDARD OF REVIEW

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). In 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, 315 (4th Cir. 2005).

DISCUSSION

The Court will address the parties' objections in turn as they apply to the three categories of Plaintiff's claims: (1) slander per se, (2) race discrimination, and (3) age discrimination.

A. Slander Per Se

In her fourth cause of action, Plaintiff alleges that Defendant published false and defamatory statements about her to employees of the School District and others in the community without a need to know. (Compl. ¶ 71, ECF No. 1.) She asserts "[D]efendant suspended, disciplined, terminated and constructively discharged [P]laintiff after conducting an open, widespread investigation into theft which involved law enforcement officers repeatedly visiting the premises and questioning witnesses." (Id.) Plaintiff further contends, "By suspending and terminating [P]laintiff, [D]efendant forced [P]laintiff to leave the work premises in the midst of said public investigation, giving other employees and persons in the community the belief and understanding that [P]laintiff committed the crime of theft and embezzlement and that she could not competently perform her job." (Id.)

After correctly stating the applicable law and analyzing the facts presented, Magistrate Judge West concluded that, construing all inferences in Plaintiff's favor, Plaintiff created an issue of fact as to whether a defamatory statement could be insinuated from Defendant's successive actions of suspending her employment, calling law enforcement to report theft, having a uniformed officer visit the school and interview individuals (including the office manager), and forcing Plaintiff to resign and retire without ever returning to work. (See ECF No. 57 at 30-32.) However, the Magistrate Judge further found that Defendant is entitled to summary judgment on the slander claim based on qualified privilege and Plaintiff's failure to show that Defendant acted "recklessly or wantonly." (See id. at 32-33.)

Plaintiff objects to the later conclusion, arguing that Magistrate Judge West misunderstood or misstated her slander claim and erroneously found that the publication(s) in question enjoyed a qualified privilege, thereby requiring Plaintiff to proveactual malice to break the privilege and avoid summary judgment. (See ECF No. 59 at 1-2.) Plaintiff contends that her claim does not rely on a publication by a school employee to law enforcement or to a supervisory employee conducting an investigation, nor does the claim rely on statements made by any person in the course of the investigation. (See id. at 2.) Rather, asserts Plaintiff:

[T]he publications were made by the conduct and actions of high-level, decision-making administrative employees, like Superintendent Jeffrey Moss ("Moss") and the Chief Administrative and Human Resource Officer, Alice Walton ("Walton"), when on December 19, 2016, they suspended both Presley and Christy McCullough ("McCullough"), the school's Athletic Director ("AD") and Science teacher at the same time. Both Presley and McCullough worked at the same middle school, Robert Smalls Academy. Moss and Walton's actions continued when, later that same day, in the afternoon of December 19, 2016, they called the Beaufort County Sheriff's Department ("Sheriff" or "Sheriff's Department") and reported missing or stolen money from the school. That day, at least two (2) uniformed police officers showed up at the school to respond to the call. The next day, December 20, 2016, more uniformed deputies or officers came to the school to investigate and question witnesses. . . . Thereafter, the Sheriff's Department conducted a wide-spread, well-known and public investigation into the missing funds, even though it was clear McCullough was responsible for the unaccounted-for money. To this point, McCullough was listed as a suspect in the Sheriff's incident report, while Presley and all other witnesses were only listed as witnesses. The investigation (which began on December 19, 2016) involved law enforcement officers visiting the school on several different occasions to interview school employees who were also witnesses. When law enforcement officers came to the school they did so in full uniform, with guns and badges. When they questioned the employees/witnesses like the Principal, Ebonique Holloman, the Office Manager, Patsy Bishop, and others, they did so in front of people at the school who were not involved in the investigation in any way - persons walking by or standing around who observed the interaction between the Sheriff's uniformed officers and defendant's employees. After all, Bishop testified that there were employees and people around who observed the fully uniformed Sheriff's officers or deputies question her and take her statement in the course of the investigation. The investigation ended on or about January 27, 2017.

(Id. at 2-3 (internal citations omitted).) Plaintiff avers that in February 2017, when she and McCullough were disciplined, she was punished more harshly than McCullough andthat the harsh punishment effectively forced her to resign, retire, and not return to work in March 2017. (Id. at 3.) Plaintiff does not identify any actual individuals to whom the relevant publications were made. However, she asserts that no privileges apply because the publications were made "well after the investigation by law enforcement ended," "not made to well-placed people with some need to know or some mutual interest in the subject mater of the publication," and instead "were made to anyone who realized there was an investigation by law enforcement into missing funds or into some wrongdoing at the school and who realized that, on the heels of that investigation, Presley did not return to work, but McCullough did; and who surmised or believed from those circumstances that [P]laintiff did not return to work because she stole money, broke the law, or engaged in wrongdoing, illegal conduct and/or was fired for same." (Id. at 5-6.)

The Court agrees with the sound analysis and reasoning of the Magistrate Judge, and Plaintiff's objection regarding the slander claim is overruled. First, Plaintiff never raised any opposition or challenge to Defendant's assertion of qualified privilege prior to the issuance of the Report. Magistrate Judge West stated: "Plaintiff has not responded to Defendant's arguments that it is entitled to summary judgment based on privilege or, alternatively, based on sovereign immunity[,]" and "[t]he court will not create arguments for Plaintiff." (ECF No. 57 at 33.) As such, Plaintiff's challenge to the qualified privilege defense for the first time in her objections is untimely. Courts in this District have often repeated the maxim that a district court need not decide an issue that a litigant waives by failing to first raise it before the Magistrate Judge. For example, in ContraVest Inc. v. Mt. Hawley Ins. Co., 273 F. Supp. 3d 607 (D.S.C. 2017), Judge Norton stated:

"A magistrate's decision should not be disturbed on the basis of arguments not presented to him." Keitt v. Ormond, 2008 WL 4964770, at *1 (S.D.W.Va. Nov. 13, 2008) (quoting Jesselson v. Outlet Associates of Williamsburg, Ltd. P'ship, 784 F. Supp. 1223, 1228 (E.D. Va. 1991)). "[T]he purpose of the Magistrates Act is to allow magistrates to assume some of the burden imposed on the district courts and to relieve courts of unnecessary work." Id. at *2 (quoting

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