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Priest v. City of Abbeville

United States District Court, D. South Carolina

March 30, 2017

Angela Burris Priest, [1] Plaintiff,
v.
The City of Abbeville, The City of Abbeville Police Department, Chief of Police Neil Henderson, and David McCuen, Defendants.

          ORDER

          Timothy M. Cain United States District Judge

         Plaintiff, 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 No. 70).

         The 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).

         Priest 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 amended complaint.

         Priest 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.

         I. Background

         The 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.[2] (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.

         According 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. Id.

         Priest 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 injury[3]pursuing 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.

         In June 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.[4] 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 board. Id.

         According 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 4).[5] 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.[6] 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 . . . .” Id.

         In July 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.[7] Id. at 5.

         Priest 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.

         Priest 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.[8](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.[9] (ECF No. 53-10).

         According to Defendants, Priest applied for disability retirement with the South Carolina Police Retirement System in November 2014.[10] 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.

         Priest 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. 53).[11]

         II. Standard of Review

         Summary 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).

         The 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.

         III. Discussion

         Priest 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 ...

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