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Shelton v. Newberry County School District

United States District Court, D. South Carolina, Anderson/Greenwood Division

July 20, 2018

Patrick Shelton, Plaintiff,
v.
Newberry County School District, Defendant.

          ORDER AND OPINION

          A. Marvin Quattlebaum, Jr. United States District Judge.

         This matter is before the Court on the Motion for Summary Judgment filed by Defendant Newberry County School District (“Defendant”) brought pursuant to Rule 56 of the Federal Rules of Civil Procedure in the above-referenced matter. (ECF No. 45.) On November 23, 2016, Plaintiff Patrick Shelton (“Plaintiff”) filed this action against Defendant, alleging claims against his former employer for race-based disparate treatment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”), First Amendment deprivation of free speech rights and retaliatory discharge, and gross negligence under the South Carolina Tort Claims Act. (ECF No. 1.)

         In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this employment discrimination matter was referred to United States Magistrate Kevin F. McDonald for consideration of pretrial matters. The Magistrate Judge prepared a thorough Report and Recommendation (“Report”) which recommends that Defendant's Motion for Summary Judgment be granted as to all claims except Plaintiff's First Amendment retaliatory discharge claim. (ECF No. 59.) Both Plaintiff and Defendant filed objections to the Report and Recommendation (ECF Nos. 62, 63) and both parties filed replies (ECF Nos. 67, 69). For the reasons set forth herein, the Court adopts the Report and Recommendation and Defendant's motion for summary judgment (ECF No. 45) is GRANTED in part and DENIED in part.

         BACKGROUND AND PROCEDURAL HISTORY

         The Report and Recommendation sets forth in detail the relevant facts and standards of law, and the Court incorporates them and summarizes below only in relevant part. Plaintiff filed this matter on November 23, 2016, against his former employer. Defendant moved for summary judgment on January 4, 2018, and responses and replies were filed accordingly. After consideration of the same, the Magistrate Judge issued a Report and Recommendation recommending that the Motion for Summary Judgment be denied as to Plaintiff's First Amendment retaliatory discharge claim, and granted as to all other causes of action. (ECF No. 59 at 27.) For purposes of considering the Motion for Summary Judgment and the parties' objections, the primary issue concerns a so-called “Black History Month” post made by Plaintiff on Facebook comprised of information from a book called “Nile Valley Contributions to Civilization, ” discussing an ancient Egyptian contraceptive method (“Black History Month Post”). (ECF No. 59 at 5.) Plaintiff contends that the information posted on Facebook was done so in an effort to enlighten his peers about an aspect of African-American history during Black History Month. (ECF No. 59 at 5-6.) Plaintiff relies on the Black History Month Post in support of his claim of retaliation under the First Amendment. (ECF No. 59 at 14.)

         STANDARD OF REVIEW

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of any portions of the Report 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 may recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). Absent a timely, specific objection-or as to those portions of the Report to which no specific objection is made-this Court “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 & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         ANALYSIS AND DISCUSSION

         As for Plaintiff's first cause of action for race discrimination, the Magistrate Judge set forth and reviewed the burden-shifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 793 (1973) and what must be established by a plaintiff to establish a prima facie case of disparate treatment. (ECF No. 59 at 10.) In so doing, the Magistrate Judge found that Plaintiff failed to establish a prima facie case of race discrimination. (ECF No. 59 at 11.) Specifically, the Magistrate Judge noted that Plaintiff had not met the fourth element of a prima facie case by showing that similarly situated employees outside of the protected class received more favorable treatment. (ECF No. 59 at 12.) As to Plaintiff's retaliatory discharge claim, the Magistrate Judge concluded that Plaintiff had not shown that he was replaced by someone outside of his protected class. Further, the Magistrate Judge noted that Defendant articulated a legitimate, nondiscriminatory reason for its decision, i.e., Plaintiff's conduct in continuing to post material on social media that Defendant found inappropriate after being counseled not to do so. (ECF No. 59 at 12-13.) The Magistrate Judge also found that Plaintiff had not shown that the proffered reason for Defendant's decisions were pretextual. (ECF No. 59 at 13.) For those reasons, the Magistrate Judge recommends that summary judgment be granted in favor of Defendant on Plaintiff's Title VII cause of action. (ECF No. 59 at 13.)

         The Magistrate Judge also considered Plaintiff's First Amendment retaliatory discharge claim and set forth the Fourth Circuit's test from McVey v. Stacy, 157 F.3d 271 (4th Cir. 1998). (ECF No. 59 at 14.) The Magistrate Judge considered the “Black History Month” post upon which Plaintiff relied in support of his claim in light of the applicable law. He then concluded that a narrow portion of Plaintiff's Facebook activity, related to Black History Month Post, could satisfy the three prongs of the McVey test. (ECF No. 59 at 16-18.) The Magistrate Judge specifically noted that the third prong of the test is a question of fact, and that in this case Plaintiff presented sufficient evidence for a reasonable juror to find his speech was substantial factor in the decision to terminate him. (ECF No. 59 at 18-19.) Therefore, the Magistrate Judge recommends this Court deny summary judgment on this claim. (ECF No. 59 at 19.) The Magistrate Judge, however, did recommend that summary judgment be granted on Defendant's claim that Defendant's staff conduct policy is facially unconstitutional on overbreath and vagueness grounds. (ECF No. 59 at 25.) The Magistrate Judge also recommends this Court grant summary judgment to Defendant's third cause of action for gross negligence as the claim fails within the exception to the waiver of sovereign immunity. (ECF No. 59 at 27.)

         In response to the Report, Defendant contends the Magistrate Judge errs in finding that Plaintiff has set forth a material fact sufficient to defeat its Motion for Summary Judgment on the First Amendment retaliatory discharge claim. (ECF No. 62 at 1.) Defendant asserts no objection as to any other findings of the Report, nor does the Defendant object to the Report's finding that Plaintiff has met the first two elements of a First Amendment retaliation claim. (ECF No. 62 at 2.) Thus, Defendant only argues that the Report errs in finding that there are sufficient facts in the record from which a jury could find that Plaintiff's protected speech, i.e., the Black History Post, was the “but for” cause for his termination. (ECF No. 62 at 2.) Defendant argues the Report fails to take into consideration the evidence in the record which would indicate that the termination was the result of a pattern of poor judgment and insubordination on the part of Plaintiff. (ECF No. 62 at 3.) Defendant argues that record evidence shows that the Black History Month Post was not the “but for” cause for Plaintiff's termination. (ECF No. 62 at 4-6.)

         For his response, Plaintiff states that he does not “object to the Report and Recommendation overall or its conclusion that Defendant's Motion for Summary Judgment be denied on Plaintiff's claim of First Amendment retaliatory discharge.” (ECF No. 63 at 1.) Plaintiff, however, contends the Magistrate Judge erred in concluding the District's policy was not unconstitutionally overbroad and vague with respect to the First Amendment facial challenge. Plaintiff argues that an ordinary person would not be able to ascertain what conduct is and is not permitted under Defendant's Staff Conduct Policy based on the subjective standards provided to Plaintiff, thereby rendering the policy overbroad and vague. (ECF No. 63 at 4-5.) Plaintiff also filed a reply to Defendant's Objections arguing that reasonable minds could conclude that Plaintiff's Black History Month Post was a substantial cause for his termination. (ECF No. 67 at 2.) Defendant filed a reply to Plaintiff's Objections, highlighting that the Defendant's Staff Conduct Policy is not unconstitutionally vague and overbroad in that it does not prohibit speech, but instead provides discipline for those in violation of the policy. (ECF No. 69 at 2.)

         The Court has carefully considered these objections as well as the Magistrate Judge's Report and the entire record in this case. The issue here is very narrow as it relates to a First Amendment retaliation claim because only the third prong of the McVey test is in dispute. The Court focuses its attention on that requirement, as guided by the parties' Objections.

         The Fourth Circuit has recently provided the framework to be used ...


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