United States District Court, D. South Carolina
Timothy M. Cain United States District Judge
Angela Burris Priest (“Priest”), filed this
action alleging sexual harassment; gender discrimination;
breach of contract; negligence; intentional infliction of
emotional distress; retaliation; negligent supervision,
negligent retention, negligent infliction of severe emotional
distress; wanton and willful negligence; and wrongful
termination/constructive termination. (ECF No. 24 at 16-22).
In accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02, D.S.C., this matter was referred to a magistrate
judge for pretrial handling. Before the court is the
magistrate judge's Report and Recommendation
(“Report”) (ECF No. 62), issued January 10, 2017,
recommending that the court grant the motions for summary
judgment filed by defendants City of Abbeville Police
Department (“APD”), City of Abbeville
(“City”), and David McCuen (“McCuen”)
(ECF No. 45) and defendant Neil Henderson
(“Henderson”) (ECF No. 46). On January 26, 2017,
Priest filed objections to the Report. (ECF No. 67). On
February 3, 2017, APD, City and McCuen filed a response to
Priest's objections. (ECF No. 69). On February 8, 2017,
Henderson filed a response to Priest's objections. (ECF
recommendations set forth in the Report have no presumptive
weight and the responsibility to make a final determination
in this matter remains with this court. See Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The court is charged
with making a de novo determination of those portions of the
Report to which specific objection is made, and the court may
accept, reject, or modify, in whole or in part, the
recommendation of the magistrate judge, or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
However, the court need not conduct a de novo review when a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a timely filed,
specific objection, the magistrate judge's conclusions
are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
filed objections to those portions of the Report which
recommend summary judgment be granted as to her first cause
of action (Title VII Hostile Work Environment/Sexual
Harassment), second cause of action (Title VII Failure to
Promote and Retaliation) and ninth cause of action (Wrongful
Termination/Constructive Termination) contained in her
did not file objections to those portions of the Report that
recommend summary judgment be granted as to the remaining
claims in the third cause of action (Breach of Contract),
fourth cause of action (Negligence), fifth cause of action
(Intentional Infliction of Emotional Distress and Outrage),
sixth cause of action (Retaliation), seventh cause of action
(Negligent Supervision, Negligent Retention, Negligent
Infliction of Emotional Distress) and eighth cause of action
(Wanton and Willful Negligence). Accordingly, in the absence
of a timely filed, specific objection, these recommendations
are reviewed only for clear error. See Diamond, 416
F.3d at 315.
magistrate judge detailed the facts of this action in his
Report. (ECF No. 62 at 2-6). Briefly, in the amended
complaint, Priest alleges that she began working for APD in
1993 as a dispatcher. (ECF No. 24 at 2). Subsequently, when
the dispatch department was eliminated, she became Clerk of
Court for the Abbeville Municipal Court until 2007 when, at
her request, the City paid for her to become credentialed as
a police officer. (ECF No. 45-2 at 2-3). Henderson was the
Chief of Police of the APD from the time Priest started until
February 12, 2013. (ECF No. 62 at 2). He approved
Priest's training and hiring as a police officer and,
over the years, promoted her to Corporal and then Sergeant.
Id. According to Priest's first Equal Employment
Opportunity Commission (“EEOC”) charge of
discrimination, from April 1, 2009, until February 28, 2013,
Henderson sexually harassed Priest by touching her, kissing
her in September 2012, and questioning her about her
relationships with other men. Id.
to Priest's complaint, she reported Henderson's
conduct to Assistant City Manager Ashley Ramey on August 27,
2009, and again in February 2010, and to her direct
supervisor, Mike Eaton, on numerous occasions with no result.
(ECF Nos. 24 at 4 and 62 at 2). In February 2013, Priest
complained to McCuen, who had recently become the Abbeville
City Manager, and detailed her allegations. (ECF No. 62 at
2-3). Following this meeting, McCuen undertook an
investigation. Id. at 3. Henderson resigned on
February 12, 2013, upon being asked to give his version of
the events. Id. Priest took administrative leave
immediately following her February 2013 complaint to McCuen
and returned to work on February 28, 2013, and accepted
counseling offered by City with a mental health provider.
filed her first charge of discrimination with the EEOC on
June 13, 2013, alleging that Henderson sexually harassed her
from April 1, 2009 to February 28, 2013. Id. The EOC
issued a right to sue letter on December 13, 2013.
Id. Priest suffered an on-the-job
injurypursuing a suspect on June 16, 2013,
remained off work due to a back injury for several weeks, and
then returned to light duty. Id. at 4.
2013, Mark Hall (“Hall”) was appointed as Chief
of Police. Id. Vacancies also opened up for the
positions of Lieutenant of Investigations and Lieutenant of
Patrol. Id. Priest applied for these positions. The
application process involved candidates being interviewed and
reviewed by a board of law enforcement officials who did not
work for City. Id. The board graded each applicant
by a number of factors and scored them on evaluation forms.
Id. Priest received one of the two lowest scores and
was not offered a promotion. Id. According to Priest,
John Garner and Michael Eaton were given the Lieutenant of
Patrol positions and Christopher Wilkie was given the
Lieutenant of Investigations position. Id. Each of
the appointees scored higher than Priest before the interview
to Defendants, Priest did not return to work after May 8,
2014. Id. at 4. According to Defendants, Priest did
not tell City why she went out of work on May 8, 2014,
although it coincided with the date she began being treated
by Abbeville Internal Medicine. (ECF No. 45-1 at
Defendants further state that Priest provided doctors'
notes for her absences, but the notes did not state the
reason for her absences. Id. City placed Priest on
leave pursuant to the Family and Medical Leave Act
(“FMLA”) until it was exhausted and then placed
her on unpaid medical leave. Id. After Priest's
FMLA leave and accrued paid leave expired, City granted her
unpaid non-FMLA leave, which was extended. (ECF No. 45-9).
City stated in a letter dated October 13, 2014, confirming an
unpaid leave extension that, “while we can extend your
leave for an additional eight weeks, we cannot guarantee your
job will be available when you return . . . .”
2014, another Lieutenant position opened which Priest, who
was still on medical leave, applied for. (ECF No. 62 at 4).
Again, an independent board conducted interviews.
Id. at 4-5. Ryan Davis, who scored the highest, was
given the position over Priest, who scored the
lowest. Id. at 5.
filed a second charge of discrimination with the EEOC on July
7, 2014, alleging that she was denied the 2013 promotions for
Lieutenant of Investigations and Lieutenant of Patrol
positions in retaliation for her previous EEOC complaint.
(ECF No. 53-7). She also alleged sexual harassment from March
1, 2013, through April 23, 2014, stating that she had been
subjected to a hostile work environment by her male
co-workers and Hall. Id. According to Defendants,
the EEOC issued a right to sue letter on the July charge in
May 2015. (ECF No. 62 at 5). Priest's amended complaint
(ECF No. 24) does not specifically allege harassment from
anyone but Henderson. Id. Hall is mentioned only in
the context of promotion decisions. Id.
filed an amended charge of discrimination with the EEOC on
September 30, 2014, again alleging that she was denied the
2013 promotions based upon her previous EEOC
charge.(ECF No. 53-8). She again alleged sexual
harassment from March 1, 2013, through April 23, 2014.
Id. In addition, in the September EEOC charge she
alleged that she was denied a promotion to Patrol Lieutenant
in July 2014 in retaliation for her previous EEOC charge.
Id. A right to sue letter was issued on May 12,
2015. (ECF No. 53-10).
to Defendants, Priest applied for disability retirement with
the South Carolina Police Retirement System in November
2014. According to Priest, she was contacted
by APD in November 11, 2014, and told to return all
department-issued items. She was informed by the South
Carolina Criminal Justice Academy that her officer
certification status had been pulled and that Chief Hall had
signed her separation papers from the academy dated October
31, 2014. (ECF No. 52-12 at 6). Priest was awarded disability
retirement in January 2015, at which time she was separated
from her employment with City, upon her request, so she could
begin receiving disability retirement benefits. (ECF No. 62
at 5-6). According to Priest, her employment officially ended
on March 3, 2015.
commenced this action in state court on May 22, 2015; it was
removed to federal court on June 25, 2015. Id. at 6.
On July 7, 2016, defendants City, APD, and McCuen filed a
motion for summary judgment. (ECF No. 45). On July 8, 2016,
Henderson filed a motion for summary judgment. (ECF No. 46).
Priest filed a response to City, APD and McCuen's motion
for summary judgment on August 15, 2016 (ECF No.
Standard of Review
judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In deciding whether a genuine issue of
material fact exists, the evidence of the non-moving party is
to be believed and all justifiable inferences must be drawn
in his favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). However, “[o]nly disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.” Id. at 248. A litigant
“cannot create a genuine issue of material fact through
mere speculation or the building of one inference upon
another.” Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985). The existence of a mere scintilla of
evidence in support of the plaintiff's position is
insufficient to withstand the summary judgment motion.
Anderson, 477 U.S. at 252. “Where 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.” Monahan v. County of
Chesterfield, 95 F.3d 1263, 1265 (4th Cir. 1996).
party seeking summary judgment has the initial burden of
demonstrating to the court that there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). Once the movant has made this threshold
demonstration, the non-moving party may not rest on the
allegations averred in her pleadings but, rather, must
demonstrate that specific material facts exist that give rise
to a genuine issue. Anderson, 477 U.S. at 256.
contends that the magistrate judge erred by recommending
summary judgment and objects to the following:
1. The R&R's disregard of the legal standard and
application of the continuing violation theory;
2. The R&R's conclusion that Plaintiff failed to
establish that Defendants' reasons for failing to promote
Plaintiff were pretextual;
3. The R&R's failure to address Plaintiff's
additional allegations of discrimination separate and
distinct from ...