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Baxley v. Ward

March 15, 2010


The opinion of the court was delivered by: Cameron Mcgowan Currie United States District Judge


Through this action Plaintiff, a former state employee, seeks recovery under 42 U.S.C. § 1983 for his alleged constructive discharge. Plaintiff alleges that he was constructively discharged from the South Carolina Department of Corrections ("SCDC") in retaliation for speech protected under the First Amendment, as applied to the states through the Due Process Clause of the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 666 (1925). Plaintiff also asserts a pendent state tort claim for intentional infliction of emotional distress.

This matter is now before the court on Defendants' motion for summary judgment, filed pursuant to Fed. R. Civ. P. 56. For the reasons stated below, the motion is granted in full.


Plaintiff began working for SCDC in 1985, with an initial assignment to Central Correctional Institution ("CCI"), a now-defunct state prison. Less than a year after his employment with SCDC began, Plaintiff joined what is now called the Rapid Response Team ("RRT"), an agency-wide unit that responds to critical incidents at various institutions around the state to deal with crowd control, perimeter security issues, work stoppages, and lesser disturbances. See Dkt. No. 57-1 at 2 n.3; Dkt. No. 67-2 at 3-4 (Pl.'s WCC Dep. at 20-21).*fn1 In 1987, Plaintiff joined the Special Operations Response Team ("SORT"), a more specialized unit that responds to higher threat disturbances such as riots, assaults, hostage situations, and prison takeovers. SORT also assists the South Carolina Law Enforcement Division ("SLED") with narcotics operations. See Dkt. No. 67-1 at 5 (Pl.'s Dep. at 7). While serving on SORT, Plaintiff also worked at other institutions including the now-closed State Park Correctional Center and both the Campbell and Watkins Pre-Release institutions. See Dkt. No. 59-5 at 8-11 (Pl.'s WCC Dep. at 26, 28, 30-31). Plaintiff received various promotions during his time with SCDC, reaching the rank of Captain by 2002. See Dkt. No. 57-1 at 2.

2002 Application for SORT Major. In January 2002, Plaintiff applied for promotion to the rank of Major with SORT. This promotion would have given Plaintiff increased responsibility and a pay supplement of $2,500. During one of several interviews for the promotion, then-Director of Operations Ken McKellar asked Plaintiff whether he would assist in executions of condemned inmates. Plaintiff responded affirmatively. Dkt. No. 67-2 at 15 (Pl.'s WCC Dep. at 46) ("I told him, 'As far as I know, I don't have a problem doing it.'"). Plaintiff testified that there was an implication from SCDC officials that his promotion was contingent upon an affirmative response to this question. Id. at 17-18 (Pl.'s WCC Dep. at 50, 52). Plaintiff received the promotion to Major with SORT on January 17, 2002. Id. at 9 (Pl.'s WCC Dep. at 40).

2002-2007 Executions and Meetings with Ward. Plaintiff participated in his first execution in August 2002. See Dkt. No. 67-2 at 31-33 (Pl.'s WCC Dep. at 87-89). Plaintiff testified that he experienced emotional upset and religious and ethical conflict following this execution. Id.; see also Dkt. No. 67-3 at 3-4 (Pl.'s WCC Dep. at 93-94). Plaintiff assisted in three other executions, including one with Major Terry Bracey ("Bracey"),*fn2 prior to April 2004. Dkt. No. 67-3 at 7-9 (Pl.'s WCC Dep. at 103, 106-07). Plaintiff continued to experience emotional upset related to performing executions. See id. at 11 (Pl.'s WCC Dep. at 111); 25-26 (Pl.'s WCC Dep. at 140-41). Unlike the officers who merely assist with preparations for executions, those who actually perform executions are not part of the debriefing sessions designed to help officers deal with the emotional effects of carrying out the execution process. See Dkt. No. 67 at 4. Consequently, Plaintiff did not receive debriefing or other counseling. Plaintiff also lacked training to serve as an executioner. Dkt. No. 67-2 at 30-31 (Pl.'s WCC Dep. at 86-87).

In April 2004, Plaintiff and Bracey met with Director of Operations Robert Ward to inform him that they no longer wished to perform executions. Ward explained to Plaintiff that if he no longer wished to perform executions, he could be transferred back to an institution. Such a transfer would have resulted in the loss of Plaintiff's state vehicle and his monetary supplement for serving as a Major with SORT. Dkt. No. 67 at 3; Dkt. No. 67-3 at 5-6 (Pl.'s WCC Dep. at 95-96). After the April meeting, Plaintiff performed another execution. See Dkt. No. 47-8 at 3 (Pl.'s WCC Dep. at 123). In May 2004, Plaintiff and Bracey again went to Ward to notify him of their unwillingness to continue to perform executions. Ward again responded that Plaintiff would have to perform executions or return to work at the institutional level. Dkt. No. 67-3 at 20-21 (Pl.'s WCC Dep. at 127-28). Between the May 2004 meeting and Plaintiff's departure from SCDC in April 2007, he performed at least five more executions. See Dkt. No. 67 at 3.

2006 Hostage Situation. Plaintiff's duties with SORT required him to respond to hostage situations in the prisons. On November 3, 2006, a male inmate took a female employee hostage at Ridgeland Correctional Institution. During the hostage situation, the female employee was able to inform the SORT team that she had been raped by the inmate. Plaintiff readied officers to address the hostage situation, but Ozmint did not permit Plaintiff and other officers to proceed. Dkt. No. 67-3 at 12-13 (Pl.'s WCC Dep. at 116-17). During the thirteen-hour standoff, the hostage was raped twice more and sodomized. Id. at 13, 17 (Pl.'s WCC Dep. at 117, 121). Plaintiff has testified that Ozmint's stated reason for the delay was to avoid using lethal force, but he believes Ozmint's actual reason for delaying entry was to avoid negative publicity in light of the upcoming November 7, 2006 gubernatorial election. Dkt. No. 67-3 at 13-14, 16, 19 (Pl.'s WCC Dep. at 117-18, 120, 123).*fn3

2007 Sheedy Computer Incidents and Plaintiff's Reports. Plaintiff testified that, at some point in early 2007, then-Security Division Director Michael Sheedy called Plaintiff, Bracey, Assistant Division Director John Ferraro, and another employee into his office to view pornography on his work computer. These pornographic pictures were allegedly emailed to Sheedy by another SCDC employee. Dkt. No. 67-3 at 28-29, 33 (Pl.'s WCC Dep. at 166-67, 171). Plaintiff and Bracey went to Ferraro, their immediate supervisor, to complain about the incident, even though Ferraro was allegedly present when it occurred.*fn4 Id. at 29 (Pl.'s WCC Dep. at 167). Plaintiff believes that, although Ferraro met with Sheedy regarding the inappropriate use of his work computer, Sheedy continued to invite various SCDC employees--but no longer Plaintiff--into his office to view these types of pictures. Id. at 30 (Pl.'s WCC Dep. at 168).

At some point after Plaintiff and Bracey's report to Ferraro but before Plaintiff's May 2007 departure from SCDC, Plaintiff entered Sheedy's office to use his computer because it was the only computer in the office with speakers. Plaintiff saw the pornographic emails in Sheedy's inbox and decided to gather them as evidence to share with Ozmint and Ward. Plaintiff videotaped the images on the computer with a state-owned video camera and took still photographs of the inappropriate images with his personal digital camera. He took the digital camera home, but placed the videotape in an envelope and left it in his office. Dkt. No. 67-3 at 30-32 (Pl.'s WCC Dep. at 168-70).

In late April or early May 2007, approximately one month after collecting his evidence of the pornography incidents, Plaintiff spoke first with Ozmint and later with SCDC Inspector General Daniel Murphy to report the pornography incidents. Dkt. No. 67-1 at 7 (Pl.'s Dep. at 27); see also Dkt. No. 67-3 at 32-33 (Pl.'s WCC Dep. at 170-71). Plaintiff believed that his meetings with Murphy and Ozmint would lead to an investigation by the Division of Investigation into whether Sheedy violated personnel policy by viewing these emails on his work computer and sharing them with other SCDC employees. Dkt. No. 67-1 at 8-9 (Pl.'s Dep. at 28-29). It is unclear whether such an investigation was ever conducted. However, Sheedy eventually learned that Plaintiff was responsible for reporting the pornography incidents. Plaintiff testified that, after learning of Plaintiff's report, Sheedy retaliated by excluding Plaintiff from meetings, by having him followed, and by generally treating him differently from other employees. Dkt. No. 67-1 at 10-11 (Pl.'s Dep. at 30-31).

Internal Hostile Work Environment Complaint. On or about May 7, 2007,*fn5 Plaintiff filed an internal hostile work environment complaint regarding Sheedy's alleged mistreatment. The complaint form states, in part, that as a result of Plaintiff's vocal disapproval of Sheedy's pornographic emails, "Mr. Sheedy has excluded me from meetings that others in my office have been involved in. Mr. Sheedy will barely speak or look at me. He has apologized to everyone in the office except for me, for his blatent [sic] disregard for policy." Dkt. No. 57-2. The complaint also states that Plaintiff believed the proper remedy would be temporary removal of Sheedy from his position during any investigation. Id. According to Plaintiff, Ozmint's response to the complaint was to notify Plaintiff that he could request a transfer. Plaintiff was dissatisfied with this response. He believed that Sheedy should have been temporarily reassigned, in part because Plaintiff had been working for SCDC longer than Sheedy. Dkt. Nos. 67-1 at 12 (Pl.'s Dep. at 37); 67-3 at 34-37 (Pl.'s WCC Dep. at 174-76, 179). Plaintiff's hostile work environment complaint was unsuccessful. Dkt. No. 6 at 3 (Am. Compl. ¶ 15).

End of Employment with SCDC and Medical Disability Application. Sometime prior to May 2007, Plaintiff petitioned the South Carolina State Retirement System for medical disability retirement. After initial assessment in May 2007, Plaintiff's psychologist, Dr. Lawrence Bergmann, recommended that Plaintiff refrain from returning to work. Dkt. No. 67-3 at 48-49 (Pl.'s WCC Dep. at 225-26); Dkt. No. 67-5 ¶ 7 (declaration of Dr. Bergmann). Dr. Bergmann "was not sure if he would be able to return to work at all." Id. Dr. Bergmann diagnosed Plaintiff with generalized anxiety disorder and concluded that "[t]he primary cause of [Plaintiff's] generalized anxiety disorder was his duties as an executioner." Id. ¶ 8. Plaintiff's disability retirement petition was granted and he discontinued his employment with SCDC in May 2007. Dkt. No. 67-3 at 48 (Pl.'s WCC Dep. at 225).

Civil Action and Workers' Compensation Claim. Defendant initiated this civil action on December 18, 2007, and filed an Amended Complaint shortly thereafter on December 21, 2007. See Dkt. Nos. 1, 6. The Amended Complaint asserts two causes of action: (1) a claim under 42 U.S.C. § 1983 for violation of Plaintiff's speech and associational rights granted by the First Amendment to the United States Constitution; and (2) a pendent state law tort for intentional infliction of emotional distress. See Dkt. No. 6 at 4-5 (Am. Compl. ¶¶ 20, 23-25). Plaintiff seeks compensatory and punitive damages under both causes of action. Dkt. No. 6 at 4-6 (Am. Compl. ¶¶ 21, 26).

In addition, Plaintiff filed a Workers' Compensation claim with the South Carolina Workers' Compensation Commission on December 15, 2008, nearly a year after commencement of the present case. Plaintiff's petition for a Workers' Compensation hearing states that Plaintiff suffers from post-traumatic stress disorder and psychological injury because he "was required to execute a number of condemned inmates without proper controls and safe guards [sic].... If [Plaintiff] had refused to conduct the executions, it had been made clear... that his desirable employment would end...." Dkt. No. 57-3 at 1. A joint Workers' Compensation hearing for Plaintiff and Bracey took place on June 5, 2009. See Dkt. No. 60-2 at 1 (Workers' Comp. hearing transcript excerpts). The court is unaware of the outcome of Plaintiff's Workers' Compensation claim.


Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). It is well established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the ...

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