Pope v. Barnwell County School District No 19 et al

Filing 39

ORDER AND OPINION granting in part and denying in part 20 Motion for Judgment on the Pleadings. Signed by Honorable J Michelle Childs on 3/28/2017.(asni, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Teresa Pope,

)
)
Plaintiff,
)
v.
)
)
Barnwell County School District No. 19;
)
Carroll Priester; Ethel T. Faust; Karen
)
Jowers; Sharon McClary; Yvonne Birt;
)
David Corder; Rebecca Grubbs; and Shawn )
Johnson, in their individual and official
)
capacities,
)
)
Defendants.
)
___________________________________ )

Civil Action No. 1:16-cv-01627-JMC

ORDER AND OPINION

Plaintiff Teresa Pope (“Plaintiff”) filed the instant action against Defendants Barnwell
County School District No. 19 (“BCSD” or the “District”), Carroll Priester (“Priester”), Ethel T.
Faust (“Faust”), Karen Jowers (“Jowers”), Sharon McClary (“McClary”), Yvonne Birt (“Birt”),
David Corder (“Corder”), Rebecca Grubbs (“Grubbs”), and Shawn Johnson (“Johnson”)
(collectively “Defendants”) seeking damages under 42 U.S.C. § 1983 for alleged violations of
her “liberty interests guaranteed by the Fifth and Fourteenth Amendments to the United States
Constitution.” (ECF No. 1 at 1 ¶ 1 & 23 ¶ 128–26 ¶ 144.) Plaintiff also asserts state law claims
for breach of contract, breach of contract accompanied by a fraudulent act, interference with a
contractual relationship, civil conspiracy, defamation, negligent infliction of emotional distress,
and intentional infliction of emotional distress. (ECF No. 1 at 13 ¶ 70–23 ¶ 127.)
This matter is before the court by way of Defendants’ Motion for Judgment on the
Pleadings (“MJOP”) pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF No.
20.) Plaintiff opposes Defendants’ Motion. (ECF No. 28.) For the reasons set forth below, the
court GRANTS IN PART AND DENIES IN PART Defendants’ Motion for Judgment on the

Pleadings.
I.

RELEVANT BACKGROUND TO PENDING MOTION

Plaintiff alleges that she began working for the BCSD as superintendent on a three-year
contract (the “Contract”) during the 2006–2007 school year.1 (ECF No. 1 at 4 ¶ 21.) The
express term of the Contract was from July 1, 2006, to June 30, 2009. (ECF No. 20-2 at 2 § 1.)
During the initial contractual term, the BCSD extended the ending date of Plaintiff’s
employment by one year to June 30, 2010. (ECF No. 20-2 at 10.) Subsequently, the BCSD
made several more amendments to the Contract ultimately pushing the ending date out to June
30, 2016. (Id. at 12, 14, 17 & 19.)
Starting in April 2013, Plaintiff alleges that Priester, the current chair of the BCSD’s
board of trustees, “began a campaign to denigrate Plaintiff’s character and career in order to
remove Plaintiff from her position as superintendent.”

(ECF No. 1 at 2 ¶ 5 & 5 ¶ 25.)

Specifically, Plaintiff alleges that Priester “filed an ethics complaint against Plaintiff with the
South Carolina State Ethics Commission” alleging fraudulent hiring practices and misuse of
government funds and also published an editorial “asserting that the District’s leadership should
be questioned for alleged misconduct.” (Id. at ¶¶ 26–28.) Plaintiff further alleges that Priester at
public board meetings questioned the expenses of the BCSD, the financial director’s failure to
attend every board meeting, and the amounts Plaintiff spent on traveling. (Id. at 6 ¶¶ 31, 35
(referencing ECF Nos. 1-2 & 1-3).) Following Priester’s lead, other members of the BCSD’s
board of trustees also became outspoken concerning Plaintiff’s job performance. (Id. at ¶ 34.)
1

The court observes that Plaintiff did not attach a copy of the Contract or its amendments as an
exhibit to her Complaint. Defendants attached these documents (ECF No. 20-2) as an exhibit to
their Motion for Judgment on the Pleadings. Because a MJOP uses the same standard as a Rule
12(b)(6) motion, the court may “consider documents attached to the complaint, see Fed. R. Civ.
P. 10(c), as well as those attached to the motion [], so long as they are integral to the complaint
and authentic.” Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citation
omitted).
2

On November 10, 2015, Plaintiff alleges that the BCSD advised her that it would not
renew the Contract. (Id. at 9 ¶ 43.) From this point forward, Plaintiff alleges that Priester with
the help of other Individual Defendants2 undermined Plaintiff’s ability to manage the BCSD as
superintendent through the end of the Contract. (Id. at 9 ¶ 48–13 ¶68.) Thereafter, on April 26,
2016, Plaintiff alleges that the BCSD placed her on paid administrative leave through the end of
the Contract. (Id. at 13 ¶ 69.)
On May 20, 2016, Plaintiff filed a Complaint in this court alleging claims for breach of
contract (“Count 1” against the BCSD), breach of contract accompanied by a fraudulent act
(“Count 2” against the BCSD), interference with a contractual relationship (“Count 3” as to
Individual Defendants), civil conspiracy (“Count 4” as to Individual Defendants), defamation
(“Count 5” against Defendants), negligent infliction of emotional distress (“Count 6” as to
Defendants), intentional infliction of emotional distress (“Count 7” against Individual
Defendants), deprivation of liberty interest, violation of civil rights and procedural due process
(“Count 8” against the BCSD), and deprivation of a property interest without due process
(“Count 9” against the BCSD). (ECF No. 1 at 13 ¶ 70–26 ¶ 144.) After answering the
Complaint (ECF Nos. 14, 19), Defendants filed the instant MJOP on August 9, 2016, primarily
asserting that Plaintiff’s claims are barred by Eleventh Amendment sovereign immunity. (ECF
No. 20.) Thereafter, on September 6, 2016, Plaintiff filed her opposition to the MJOP (ECF No.
28) to which Defendants filed a Reply on September 16, 2016. (ECF No. 30.)
II.

JURISDICTION

This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 based on
Plaintiff’s claims against the BCSD under 42 U.S.C. § 1983, which permits an injured party to
2

“Individual Defendants” are Priester, Faust, Jowers, McClary, Birt, Corder, Grubbs, and
Johnson.
3

bring a civil action against a person who, acting under color of state law, ordinance, regulation,
or custom, causes the injured party to be deprived of “any rights, privileges, or immunities
secured by the Constitution and laws.” Id. The court may properly hear Plaintiff’s state law
claims based on supplemental jurisdiction since these claims “are so related to claims in the
action within such original jurisdiction that they form part of the same case or controversy . . . .”
28 U.S.C. § 1367(a).
III.

LEGAL STANDARD

Rule 12(c) provides that “[a]fter the pleadings are closed—but early enough not to delay
trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A MJOP is
intended to test the legal sufficiency of the complaint and will operate to dispose of claims
“where the material facts are not in dispute and a judgment on the merits can be rendered by
looking to the substance of the pleadings and any judicially noted facts.” Cont’l Cleaning Serv.
v. UPS, No. 1:98CV1056, 1999 WL 1939249, at *1 (M.D.N.C. Apr. 13, 1999) (citing Herbert
Abstract v. Touchstone Props., Inc., 914 F.2d 74, 76 (5th Cir. 1990)). A MJOP “is decided under
the same standard as a motion to dismiss under Rule 12(b)(6).”3 Deutsche Bank Nat’l Trust Co.
3

A Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted “challenges
the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009)
(citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992) (“A motion to dismiss under Rule 12(b)(6) . . . does not resolve contests surrounding the
facts, the merits of a claim, or the applicability of defenses.”). To be legally sufficient a pleading
must contain a “short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). A Rule 12(b)(6) motion “should not be granted unless it appears
certain that the plaintiff can prove no set of facts which would support its claim and would entitle
it to relief.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering
a Rule 12(b)(6) motion, the court should accept as true all well-pleaded allegations and should
view the complaint in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245,
251 (4th Cir. 1999); Mylan Labs., 7 F.3d at 1134. “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
4

v. IRS, 361 F. App’x 527, 529 (4th Cir. 2010) (citing Independence News, Inc. v. City of
Charlotte, 568 F.3d 148, 154 (4th Cir. 2009)); see also Massey v. Ojaniit, 759 F.3d 343, 353 (4th
Cir. 2014) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).
IV.
A.

ANALYSIS

Sovereign Immunity
1. The Parties’ Arguments
In their MJOP, Defendants first argue that “Plaintiff’s claims are barred by sovereign

immunity under the Eleventh Amendment.” (ECF No. 20-1 at 6.) In support of this argument,
Defendants assert that “[b]ecause the District is an arm of the State of South Carolina, it is
immune from private suit.” (Id. at 7 (citing, e.g., Eldeco, Inc. v. Skanska USA Building, Inc.,
447 F. Supp. 2d 521, 527 (D.S.C. 2006); Smith v. Sch. Dist. of Greenville Cty., 324 F. Supp. 2d
786, 796 (D.S.C. 2004) (“[T]he Court is of the firm opinion that the relationship between the
Defendant school districts and the state is so close and the laws of this state are such as to render
the Defendant school districts as arms of the state for purposes of Eleventh Amendment
sovereign immunity.”)).) Defendants further assert that this immunity extends to Plaintiff’s
claims against Individual Defendants because (1) a suit against them “in their official capacities
is in reality a suit against the entity of which they are officials or employees,” i.e., the BCSD;
and (2) a suit against Individual Defendants in their individual capacities fails because their
actions “were tied inextricably to their official duties.” (Id. at 8 (citing, e.g., Kentucky v.
Graham, 473 U.S. 159, 166 (1985); Lizzi v. Alexander, 255 F.3d 128, 136–138 (4th Cir. 2001)).)

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The key difference between
a Rule 12(b)(6) motion and a Rule 12(c) motion is “that on a 12(c) motion, the court is to
consider the answer as well as the complaint.” Fitchett v. Cnty. of Horry, S.C., C/A No. 4:10cv-1648-TLW-TER, 2011 WL 4435756, at *3 (D.S.C. Aug. 10, 2011) (quoting Cont’l Cleaning
Serv., 1999 WL 1939249, at *1); see also A.S. Abell Co. v. Balt. Typographical Union No. 12,
338 F.2d 190, 193 (4th Cir. 1964).
5

In response to Defendants’ Eleventh Amendment sovereign immunity assertions, Plaintiff
(1) confuses it with qualified immunity4 (ECF No. 28 at 5) and (2) “concedes that her claims
against [I]ndividual [D]efendants, in their official capacity are claims against the District and are
barred by the Eleventh Amendment.” (Id. at 6.) Notwithstanding the foregoing, Plaintiff also
argues that Individual Defendants are not entitled to Eleventh Amendment sovereign immunity
in their individual capacities because they “did not always act in their official capacities.” (Id.)
In Reply, Defendants argue that Plaintiff’s representation regarding her individual
capacity claims “is contradicted by Plaintiff’s Complaint: ‘[a]t all times relevant to the
allegations of this Complaint, [the District] acted by and through its agents and employees, [the
Individual Defendants], who at all such times used their positions to act within the course and
scope of their agency and employment.’” (ECF No. 30 at 3 (quoting ECF No. 1 at 3–4 ¶ 13).)
2. The Court’s Review
The Eleventh Amendment provides: “The judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by citizens of another state, or by citizens or subjects of any foreign state.” U.S.
Const. amend. XI. Though not explicitly stated in the language of the amendment, courts have
4

In response to Defendants’ sovereign immunity assertions, Plaintiff stated that “immunity under
the Eleventh Amendment only may be established either on the basis that the right violated was
not at the time ‘clearly established’ or that, though ‘clearly established,’ it was one that a
reasonable person in the official’s position could have failed to appreciate would be violated by
his conduct.” (ECF No. 28 at 5 (citing Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992)).)
This is clearly the definition of qualified immunity. See, e.g., Wilson v. Layne, 526 U.S. 603,
609 (1999) (“A court evaluating a claim of qualified immunity ‘must first determine whether the
plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to
determine whether that right was clearly established at the time of the alleged violation.’”)
(quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999)). State sovereign immunity is intended
primarily to prevent the indignity of subjecting a state to the coercive process of judicial
tribunals at the instance of private parties, while qualified immunity is a right to immunity from
certain claims, not from litigation in general. See Espinal-Dominguez v. Commonwealth of
P.R., 352 F.3d 490, 499 (1st Cir. 2003).
6

long held that this guarantee also protects a state from federal suits brought by its own citizens,
not only from suits by citizens of other states. Port Auth. Trans-Hudson Corp. v. Feeney, 495
U.S. 299, 304 (1990).

“The ultimate guarantee of the Eleventh Amendment is that non-

consenting States may not be sued by private individuals in federal court.” Bd. of Trustees of
Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). Sovereign immunity under the Eleventh
Amendment “is concerned not only with the States’ ability to withstand suit, but with their
privilege not to be sued” in the first instance. Alabama v. North Carolina, 560 U.S. 330, 362
(2010) (quoting P.R. Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, n.5
(1993)). Accordingly, once the defendant raises the jurisdictional issue of immunity, the court
must resolve this threshold matter prior to addressing the merits of the plaintiff's claims. See
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998) (extensively discussing the
importance of establishing proper jurisdiction before considering the merits of a claim).
The ultimate question for the purposes of the Eleventh Amendment immunity is whether
the state is a real, substantial party in interest. Pennhurst State Sch. and Hosp. v. Halderman, 465
U.S. 89, 101 (1984). Therefore, when an instrumentality or agent of the state, named as a
defendant in a case, seeks to take advantage of the state’s Eleventh Amendment immunity, it
becomes necessary to examine the relationship between the state and the entity being sued to
determine whether it should be considered an arm of the state. Regents of the Univ. of Cal. v.
Doe, 519 U.S. 425, 429 (1997).
The United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) has
articulated a non-exclusive list of four (4) factors (the “Immunity Factors”) to be considered
when determining whether or not a state-created entity is an arm of the state, and thus protected
from suit by the Eleventh Amendment. S.C. Dept. of Disabilities and Special Needs v. Hoover

7

Univ. Inc., 535 F.3d 300, 303 (4th Cir. 2008). The Immunity Factors are: (1) whether any
judgment against the entity as defendant will be paid by the State or whether any recovery by the
entity as plaintiff will inure to the benefit of the State; (2) the degree of autonomy exercised by
the entity, including such circumstances as who appoints the entity’s directors or officers, who
funds the entity, and whether the State retains a veto over the entity’s actions; (3) whether the
entity is involved with State concerns as distinct from non-state concerns, including local
concerns; and (4) how the entity is treated under state law, such as whether the entity’s
relationship with the State is sufficiently close to make the entity an arm of the State. Id.
(internal citations and alterations omitted). See also U.S. ex rel. Oberg v. Ky. Higher Educ.
Student Loan Corp., 681 F.3d 575, 580 (4th Cir. 2012); Md. Stadium Auth. v. Ellerbe Becket
Inc., 407 F.3d 255, 260 (4th Cir. 2005); Ram Ditta v. Md. Nat’l Capital Park & Planning
Comm’n, 822 F.2d 456 (4th Cir. 1987).
In considering the merits of Defendants’ MJOP on sovereign immunity grounds, the
court notes that recent Fourth Circuit case law supports the proposition that a Rule 12 motion
may not be the appropriate vehicle through which a defendant should assert Eleventh
Amendment sovereign immunity.

See United States ex rel. Oberg v. Pa. Higher Educ.

Assistance Agency, 745 F.3d 131, 147–48 (4th Cir. 2014) (Traxler, C.J., concurring in part and
dissenting in part) (“Although this court has not addressed the issue, the circuits that have
considered similar assertions of arm-of-state status have uniformly concluded that it is an
affirmative defense to be raised and established by the entity claiming to be an arm of the state.
See Sung Park v. Ind. Univ. Sch. of Dentistry, 692 F.3d 828, 830 (7th Cir. 2012) (“[S]overeign
immunity is a waivable affirmative defense.”); Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144,
1147 (9th Cir. 2007) (“Eleventh Amendment immunity is an affirmative defense . . . .” (internal

8

quotation marks omitted)); Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d
232, 237–39 (2d Cir. 2006) (treating Eleventh Amendment immunity “as akin to an affirmative
defense”); . . . . I believe these decisions were correctly decided and that the arm-of-state issue .
. . is an affirmative defense . . . . “[a]n[d such] affirmative defense may provide the basis for a
Rule 12(b)(6) dismissal only in the relatively rare circumstances . . . where all facts necessary to
the affirmative defense clearly appear on the face of the complaint.”) (emphasis in original)
(internal citation and quotation marks omitted).) Notwithstanding the cases cited by Defendants,
the court is convinced that United States ex. rel. Oberg offers better guidance as to how the court
should adjudicate an Eleventh Amendment inquiry. In this regard, the court finds that there is
insufficient evidence in the record to establish the Immunity Factors requisite to grant
Defendants’ dismissal of the Complaint pursuant to sovereign immunity. Based on this lack of
evidence, the court is inclined to deny Defendants’ MJOP on sovereign immunity grounds and
allow the parties to engage in discovery on all relevant issues.
B.

Applicability of the South Carolina Tort Claims Act
In addition to the sovereign immunity bar, Defendants argue that the South Carolina Tort

Claims Act (the “Act”), S.C. Code Ann. §§ 15-78-10 to -220 (2014), bars any tort claims alleged
against Individual Defendants. (ECF No. 20-1 at 9 (citing Flateau v. Harrelson, 584 S.E.2d 413,
418 (S.C. Ct. App. 2003)).) “Accordingly, Plaintiff’s claims for interference with contractual
relationship, civil conspiracy, defamation, negligent infliction of emotional distress, and
intentional infliction of emotional distress are subject to dismissal.” (Id. at 10.)
Succinctly, Plaintiff opposes Defendants’ argument stating that “[t]he Act is not a
complete bar to suit and does not afford the Individual Defendants any protection in their
individual capacities.” (ECF No. 28 at 19.)

9

The Act is the exclusive remedy for individuals suing a governmental entity, its
employees, or its agents for the commission of any tort. See S.C. Code Ann. § 15-78-70(a)
(2016); see also Flateau v. Harrelson, 584 S.E.2d 413, 416 (S.C. Ct. App. 2003) (citing S.C.
Code Ann. § 15-78-20(b) (partially waiving sovereign immunity and providing for “liability on
the part of the State, its political subdivisions, and employees, while acting within the scope of
official duty”). The Act provides that a government employee who commits a tort while acting
within the scope of his official duty is not personally liable unless the conduct was “not within
the scope of his official duties or it constituted actual fraud, actual malice, intent to harm, or a
crime involving moral turpitude.” S.C. Code Ann. § 15-78-70(b) (2016). When asserting claims
that fall within the provisions of the Act, a plaintiff must sue the governmental entity, not the
individual employee. See Flauteu, 584 S.E.2d at 417.
Upon review, the court observes that Plaintiff specifically alleges behavior outside the
scope of employment in support of her civil conspiracy claim. (See ECF No. 1 at 17 ¶ 93 & 18 ¶
96.) As to the remaining tort claims, the court observes that there are allegations of intent to
harm and/or maliciousness apparent in the Complaint. (E.g., ECF No. 1 at 17 ¶ 88, 20 ¶ 110, 22
¶ 118 & 23 ¶ 125.) Accepting these allegations as true, the court finds that Plaintiff has
sufficiently alleged actions by Individual Defendants such that the protections of the Act are
inapplicable to Plaintiff’s tort claims.
C.

Sufficiency of Allegations to Support Plaintiff’s Claims
Defendants argue that even if Plaintiff’s claims are not procedurally barred, they all fail

because of her insufficient allegations. (See generally ECF No. 20-1 at 10–34.) The court will
analyze the sufficiency of the Complaint’s allegations as to each claim.

10

1. Breach of Contract against the BCSD
Defendants argue that Plaintiff's breach of contract claim against the BCSD fails because
she cannot “establish a breach or damages resulting from any alleged breach.” (ECF No. 20-1 at
10.) In support of this argument, Defendants assert that the breach alleged by Plaintiff (ECF No.
1 at 14 ¶ 755) is insufficient because the Contract expressly allowed the BCSD to place Plaintiff
on administrative leave. (Id. at 11 (referencing ECF No. 20-2 at 9 § 13).) Moreover, Defendants
assert that damages are lacking because “Plaintiff does not dispute that the district provided her
with ‘full pay and benefits’ through June 30, 2016, the entirety of her term as superintendent”
pursuant to the Contract. (Id. (citing ECF No. 1-9).)
Plaintiff contends that her breach of contract claim should survive Defendants’ MJOP
because of the allegation that the Contract was breached when Defendants “failed to allow her to
act as superintendent as provided for in the contract.” (ECF No. 28 at 16 (citing ECF No. 1 at 13
¶ 736 & 14 ¶ 757).) In this regard, Plaintiff asserts that “she would not have found herself on

5

“Defendant District breached Plaintiff’s employment contract and its duty of care to Plaintiff in
numerous ways, including but not limited to: a. Failing to deal in good faith with Plaintiff; b.
Constructively removing Plaintiff from her Superintendent position; c. Failing to comply with
District policies and procedures such as District policy CBC; d. Failing to provide Plaintiff with
notice and a hearing prior to deliberating Plaintiff’s termination or constructive termination; e.
Allowing District representatives to publicly place Plaintiff in a false light; publicize false
statements concerning her actions as superintendent, and continuously undermining her authority
as superintendent; and f. Other conduct to be proven at trial.” (ECF No. 1 at 14 ¶ 75.)
6
“Plaintiff’s employment contract includes, but is not limited to, the following terms: a. “The
Superintendent shall have charge of the administration of the District under the direction of the
Board;” b. “She shall be the chief executive officer of the Board; shall select, organize, and
assign all personnel, as best serves the District, in compliance with Board policy; shall oversee
the instructional program and business affairs of the District; shall from time to time suggest
regulations, rules, and procedures deemed necessary for the well ordering of the District; and in
general perform all duties incident to the office of Superintendent as prescribed by Board policy
and such other duties as may be prescribed by the Board from time to time.” (ECF No. 1 at 13 ¶
73.)
7
See supra n.5.
11

administrative leave or having her contract not renewed had the District not breached the
agreement and allowed her to act as superintendent.” (Id.)
“To recover for a breach of contract, the plaintiff must prove: (1) a binding contract
entered into by the parties; (2) a breach or unjustifiable failure to perform the contract; and (3)
damage suffered by the plaintiff as a direct and proximate result of the breach.” Tomlinson v.
Mixon, 626 S.E.2d 43, 49 (S.C. 2006). There is no dispute that the Contract was binding on the
parties. (E.g., ECF No. 19 at 6 ¶ 21.) Moreover, Plaintiff has alleged the breach of specific
provisions in the Contract. (See ECF No. 1 at 13 ¶ 73 (quoting ECF No. 20-2 at 3 § 2).)
Therefore, to survive the MJOP, Plaintiff has to only show damages resulting from the breach.
On one hand, Plaintiff alleges that the BCSD’s “breach of contract has caused Plaintiff to
suffer substantial actual and consequential damages . . . lost back and future wages and benefits,
costs, attorney fees, and post judgment interest.” (ECF No. 1 at 14 ¶ 76–15 ¶ 77.) On the other
hand, Defendants assert that Exhibit I to the Complaint (ECF No. 1-9) demonstrates that Plaintiff
does not have any damages because the Exhibit states that she received full pay and benefits
through the term of the Contract. In considering the merits of the parties’ positions, the court is
guided by the general principle that “[w]hen an employee, is wrongfully discharged under a
contract for a definite term, the measure of damages generally is the wages for the unexpired
portion of the term.” Shivers v. John H. Harland Co., Inc., 423 S.E.2d 105, 107 (S.C. 1992)
(citing Latimer v. York Cotton Mills, 44 S.E. 559 (S.C. 1903)). However, at the same time, the
court also acknowledges that the law supports a plaintiff’s entitlement “to recover the loss she
actually suffered as a result of the breach of her employment agreement.” McNaughton v.
Charleston Sch. for Math & Science, Inc., 768 S.E.2d 389, 397 (S.C. 2015) (citing, e.g., Drews
Co. v. Ledwith–Wolfe Assocs., Inc., 371 S.E.2d 532, 534 (S.C. 1988) (stating that the proper

12

measure of compensation for a breach of contract “is the loss actually suffered by the contractee
as the result of the breach”)). Therefore, accepting as true Plaintiff’s allegations that she has
damages greater than any wages that were due to her for the time that she was placed on
administrative leave, the court is persuaded that Plaintiff has sufficiently alleged a claim against
the BCSD for breach of contract. Accordingly, Defendants’ MJOP is denied as to the claim for
breach of contract.
2. Breach of Contract Accompanied by a Fraudulent Act against the BCSD
As to Plaintiff’s claim for breach of contract accompanied by fraudulent act, Defendants
argue that she cannot establish a breach and further is unable “to meet the heightened pleading
standard required to pursue a claim of fraud.” (ECF No. 20-1 at 13.) In this regard, Defendants
assert that Plaintiff's generalized claim of fraud is insufficient under Rule 9(b) of the Federal
Rules of Civil Procedure. (Id. (citing, e.g., Harrison v. Westinghouse Savannah River Co., 176
F.3d 776, 784 (4th Cir. 1999) (requiring “the time, place, and contents of the false
representations, as well as the identity of the person making the misrepresentation and what he
obtained thereby.”)).)
Plaintiff argues that she “has alleged facts sufficient to bring a claim for breach of
contract accompanied by a fraudulent act.” (ECF No. 28 at 17.) Plaintiff asserts that she has
alleged “[t]here was fraudulent intent on behalf of the Defendant District to remove the Plaintiff
from her position through secret meetings and secret communications, as well as many other
acts.” (Id. (citing ECF No. 1 at 15 ¶ 80).) She further asserts that “[t]he fraudulent act in this
case can be shown through staff meetings telling employees to go around the Plaintiff for District
communications, false allegations being made to the media about the Plaintiff’s conduct, emails
regarding the plan to remove Plaintiff from her position, as well as others.” (Id. (citing ECF No.

13

1 at 15 ¶ 80).)
“In order to have a claim for breach of contract accompanied by a fraudulent act, the
plaintiff must establish three elements: (1) a breach of contract; (2) fraudulent intent relating to
the breaching of the contract and not merely to its making; and (3) a fraudulent act
accompanying the breach.” Conner v. City of Forest Acres, 560 S.E.2d 606, 612 (S.C. 2002)
(citing Harper v. Ethridge, 348 S.E.2d 374 (S.C. Ct. App. 1986)). Because the court has already
found Plaintiff’s allegations sufficient to demonstrate a breach of the Contract, Plaintiff needs
only to establish the last two elements of a breach of contract accompanied by fraudulent act
claim to survive the MJOP. In the Complaint, Plaintiff describes the BCSD’s fraudulent intent in
breaching the contract with the following allegations:
The fraudulent intent relating to the breach of Plaintiff’s employment contract []
evidenced by the following: a. District employees and Defendant Johnson holding
secret meetings about District operations excluding Plaintiff; b. Defendant
Priester having secret communications, via telephone and otherwise, concerning
District operations and her plan to remove Plaintiff from her position; c.
Defendant Priester emailing Board members and other employees about her plan
to remove Plaintiff from the superintendent’s office; d. Defendant Priester and
other board members making false allegations in the news media about Plaintiff’s
job performance and participation in unethical conduct; e. Upon information and
belief, Defendant Priester advising Defendant Johnson and District employees to
act pursuant to the Board’s direction; f. Upon information and belief Defendant
Johnson holding staff meetings at every school advising District employees to
contact [] [Defendant] Birt if they needed to communicate with him concerning
the District; and g. Other conduct that will be proven at trial.
(ECF No. 1 at 15–16 ¶ 80.) The Complaint further alleges a fraudulent act accompanying the
breach pursuant to an allegation that the BCSD took actions “accompanied by fraudulent acts
contemporaneous with Defendant District’s breach of Plaintiff’s employment contract including,
but not limited to, Defendant District flagrantly violating the terms and conditions of Plaintiff’s
employment, District policy, and state and federal law.” (ECF No. 1 at 15 ¶ 79.)
Upon review, the court is not persuaded that Plaintiff has sufficiently alleged an

14

“independent fraudulent act which accompanied the breach.” Minter v. GOCT, Inc., 473 S.E.2d
67, 71 (S.C. Ct. App. 1996). To this point, even if the court combines the one fraudulent act
allegation in the Complaint with the acts cited by Plaintiff in her brief, these instances do not
meet the requisite characterization for a fraudulent act. Harper v. Ethridge, 348 S.E.2d 374, 378
(S.C. Ct. App. 1986) (“The fraudulent act is any act characterized by dishonesty in fact, unfair
dealing, or the unlawful appropriation of another’s property by design.”) (citation omitted). As a
result, the court finds that Plaintiff fails to sufficiently allege a fraudulent act accompanied any
alleged breach of the contract. Accordingly, the BCSD is entitled to dismissal of this claim.
3. Interference with a Contractual Relationship against Individual Defendants
Defendants argue that Individual Defendants cannot be liable for interference with a
contractual

relationship

because

they

are

parties

to

the

Contract

through

their

agency/employment status with the BCSD. (ECF No. 20-1 at 14.) In addition, Defendants argue
that there is no evidence of the intentional procurement of the Contract’s breach since it was
allowed to expire at the end of its term on June 30, 2016. (Id.)
Succinctly, Plaintiff states that Individual Defendants interfered with the Contract when
“Priester and the other Individual Defendants’ actions or omissions caused Plaintiff’s contract to
be breached by undermining Plaintiff’s authority as superintendent.” (ECF No. 28 at 18 (citing
Haddle v. Garrison, 525 U.S. 121, 126 (1998) (“One who maliciously and without justifiable
cause, induces an employer to discharge an employee, by means of false statements, threats or
putting in fear, or perhaps by means of malevolent advice and persuasion, is liable in an action of
tort to the employee for the damages thereby sustained. And it makes no difference whether the
employment was for a fixed term not yet expired or is terminable at the will of the employer.”)).)
“The elements of the tort of wrongful interference with an existing contractual

15

relationship are as follows: (1) A contract, (2) knowledge of the contract by the wrongdoer, (3)
an intentional procurement of the contract's breach, (4) the absence of justification, and (5)
damages resulting therefrom.” Love v. Gamble, 448 S.E.2d 876, 882 (S.C. Ct. App. 1994)
(citing, e.g., Todd v. S.C. Farm Bureau Mut. Ins. Co., 336 S.E.2d 472, 473 (S.C. 1985)). “[A]n
action for tortious interference protects the property rights of the parties to a contract against
unlawful interference by third parties.” Threlkeld v. Christoph, 312 S.E.2d 14, 15 (S.C. Ct. App.
1984). “[I]t does not protect a party to a contract from actions of the other party.” Id.
In considering the merits of the MJOP as to this claim, the court observes that it is
uncontested that Individual Defendants were agents of the BCSD. Moreover, unlike some of her
other claims, Plaintiff did not disclaim the Complaint’s early acknowledgement that Individual
Defendants Priester, Faust, Jowers, McClary, Birt, Corder, Grubbs, and Johnson were “agents
and employees” of the BCSD “[a]t all times relevant to the allegations of this Complaint.” (ECF
No. 1 at 3–4 ¶ 13.) Therefore, because it is undisputed that Individual Defendants were acting as
the BCSD’s agents at all times relevant to this claim, Plaintiff cannot set forth a plausible claim
of interference with contractual relationship thereby warranting its dismissal. Threlkeld, 312
S.E.2d at 15 (finding proper grant of summary judgment as to an interference with employment
contract claim on the basis that the individual defendants were agents of the corporate
defendant).
4. Civil Conspiracy against Individual Defendants
Defendants argue that Plaintiff cannot maintain a civil conspiracy claim because (1) she
was an at-will employee; (2) she failed “to plead with specificity acts taken by each of the
Individual Defendants in furtherance of the alleged conspiracy”; and (3) she “failed to plead
special damages.” (ECF No. 20-1 at 15–16 (citing, e.g., Angus v. Burroughs & Chapin Co., 596

16

S.E.2d 67, 70 (S.C. Ct. App. 2004) (“[A]n at-will employee cannot maintain an action against a
former employer for civil conspiracy that resulted in the employee's termination.”); Hackworth
v. Greywood at Hammett, LLC, 682 S.E.2d 871, 874 (S.C. Ct. App. 2009) (“A claim for civil
conspiracy must allege additional acts in furtherance of a conspiracy rather than reallege other
claims within the complaint.”)).)
Plaintiff contends that she has alleged a valid claim of civil conspiracy. Plaintiff asserts
that the civil conspiracy claim “does not arise out of a termination” and the allegations in her
Complaint and its supporting exhibits clearly depict the campaign engaged in by Individual
Defendants to remove her from her position. (ECF No. 28 at 10–11.) As to special damages,
Plaintiff asserts that her civil conspiracy “damages do go beyond the damages alleged in her
other causes of action” since her civil conspiracy damages are based on “a deteriorating medical
condition, which includes, but is not limited to depression, anxiety, excessive stress, high blood
pressure, and other medical complications.” (ECF No. 28 at 12 (citing ECF No. 1 at 19 ¶ 100).)
Under South Carolina law, a “[c]ivil conspiracy consists of three elements: (1) a
combination of two or more persons, (2) for the purpose of injuring the plaintiff, (3) which
causes him special damage.” Vaught v. Waites, 387 S.E.2d 91, 95 (S.C. Ct. App. 1989). As
long as sufficient facts are alleged to make out a prima facie civil conspiracy claim, the plaintiff
does not have to explain all of the details of the conspiracy in his complaint. Charles v. Tex. Co.,
5 S.E.2d 464, 472 (S.C. 1939). However, a civil conspiracy claim must be supported by facts
independent of the other causes of action in the complaint; a plaintiff may not simply incorporate
allegations that support other causes of action to sustain a cause of action for civil conspiracy.
Cricket Cove Ventures, LLC v. Gilland, 701 S.E.2d 39, 46 (S.C. 2010) (citing Todd v. S.C. Farm
Bureau Mut. Ins. Co., 278 S.E.2d 607, 611 (S.C. 1981)). The plaintiff must also plead damages

17

suffered as a result of the conspiracy that go beyond damages alleged in other causes of action.
Id. at 39 (citing Vaught, 387 S.E.2d at 95). Additionally, “a civil conspiracy cannot exist when
the alleged acts arise in the context of a principal-agent relationship because by virtue of the
relationship such acts do not involve separate entities.” McMillan v. Oconee Mem’l Hosp., Inc.,
626 S.E.2d 884, 886-87 (S.C. 2006) (citation omitted). In this regard, “agents for a corporation
acting in the scope of their duties cannot conspire with the corporation absent the guilty
knowledge of a third party.” Id. (citing Goble v. Am. Ry. Express Co., 115 S.E. 900, 903 (S.C.
1923)).
At the outset, the court observes that Defendants’ argument regarding Plaintiff’s at-will
employment is not dispositive. Under South Carolina law, at-will status is altered when “a
contract, policy, procedure, or representation [] limit[s] either the duration of the employment or
the employer’s right to terminate the employee.” Weaver v. John Lucas Tree Expert Co., C.A.
No. 2:13-CV-01698-PMD, 2013 WL 5587854, at *6 (D.S.C. Oct. 10, 2013) (citations omitted).
In this case, not only was the Contract for a definite term ending on June 30, 2016, but it
contained provisions that effectively limited the BCSD’s right to terminate by requiring cause
(ECF No. 20-2 at 8 § 10(c)) or the affirmative vote of four members of the BCSD’s board of
trustees. (Id. at § 10(d).) As a result, the court finds that Defendants are not entitled to dismissal
of Plaintiff’s civil conspiracy claim on the basis of her alleged at-will employment.8
As to the specifics of her civil conspiracy claim, Plaintiff alleges that Individual
“Defendants Priester, Birt, Johnson, and others met at various times and places to scheme,
conspire and plan in secret – outside of the natural course and scope of their employment duties
and roles – to have Plaintiff eliminated from the District as superintendent for a variety of
8

The court observes that the court in Angus focused on the fact that Angus’s “employment
contract stated that she was ‘employed at the will’ of the Horry County Council.” Angus, 596
S.E.2d at 69, 70. The Contract in this case did not contain such language.
18

reasons, which include but are not limited to dislike, ambition, and power.” (ECF No. 1 at 17–18
¶ 93.) Plaintiff alleges that Priester led Individual Defendants who covertly plotted Plaintiff’s
termination, hired her replacement while she was still acting superintendent and ridiculed
Plaintiff’s “supervisory ability to the public and others and encouraging someone to file
untruthful grievances against her.” (Id. at 18 ¶¶ 94–95 & 19 ¶ 98.) Plaintiff further alleges
special damages (see id. at 19 ¶ 100 (“deteriorating medical condition . . . depression, anxiety,
excessive stress, high blood pressure . . . .”) that are not alleged in support of any other claims.
Upon consideration of the foregoing, the court finds that Plaintiff’s allegations sufficiently allege
a claim for civil conspiracy against Individual Defendants to survive the MJOP.
5. Defamation against Defendants
Defendants contend that Plaintiff’s defamation claim fails because she did not plead with
specificity either designating any defendant by name or by making “any factual allegations to tie
any specific individual defendant to any alleged defamatory statements.” (ECF No. 20-1 at 18.)
Defendants further contend Plaintiff's claim fails because as a public official, she was required
to, but did not, plead facts establishing actual malice by the clear and convincing standard. (Id.
at 20.)
Plaintiff defends her defamation claim asserting that it is supported by specific
allegations in the Complaint along with supporting Exhibits A–C.

(ECF No. 28 at 14

(referencing ECF Nos. 1-1, 1-2 & 1-3).) In addition, Plaintiff asserts that the defamation claim
against BCSD is actionable per se because “the defamatory statements made against Plaintiff in
e-mails and in the news concern her alleged unfitness in her job.” (Id. at 15 (citing Holtzscheiter
v. Thomson Newspapers, Inc., 506 S.E.2d 497 (S.C. 1998) (“[S]lander is actionable per se only
if it charges the plaintiff with one of five types of acts or characteristics: (1) commission of a

19

crime of moral turpitude; (2) contraction of a loathsome disease; (3) adultery; (4) unchastity; or
(5) unfitness in one’s business or profession.”)).)
The tort of defamation allows a plaintiff to recover for injury to his or her reputation as
the result of the defendant’s communications to others of a false message about the plaintiff.
Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998). To establish a
claim for defamation, the plaintiff must show (1) a false and defamatory statement was made
concerning the plaintiff; (2) the unprivileged publication was made to a third party; (3) the
publisher was at fault; and (4) either actionability of the statement irrespective of special harm or
the existence of special harm caused by the publication.9 Fleming v. Rose, 567 S.E.2d 857, 860
(S.C. 2002). “Additionally, a plaintiff, who is a public official or public figure, must prove by
clear and convincing evidence that the defendant acted with constitutional actual malice in
publishing a false and defamatory statement about the plaintiff.” MRR S., LLC v. Citizens for
Marlboro Cty., C/A No. 4:09-03102-JMC, 2012 WL 1016180, at *2 (D.S.C. Mar. 26, 2012)
(citing, e.g., Time, Inc. v. Firestone, 424 U.S. 448, 453–55 (1976)). “Constitutional actual
malice exists when a statement is made ‘with knowledge that it was false or with reckless
disregard of whether it was false or not.’” Id. (quoting N.Y. Times Co. v. Sullivan, 376 U.S.
254, 279–80 (1964)).
In the Complaint, Plaintiff generally alleges that the BCSD through the Individual
9

The defamatory meaning of a message or statement may be obvious on the face of the
statement, in which case the statement is defamatory per se. Holtzscheiter, 506 S.E.2d at 501. If
the defamatory meaning is not clear unless the hearer knows facts or circumstances not contained
in the statement itself, then the statement is defamatory per quod, and the plaintiff must introduce
extrinsic facts to prove the defamatory meaning. Id. In addition to those classifications, a
statement may be actionable per se, in which case the defendant is presumed to have acted with
common law malice and the plaintiff is presumed to have suffered general damages. Id. A
statement may also not be actionable per se, in which case nothing is presumed and the plaintiff
must plead and prove both common law malice and special damages. Holtzscheiter, 506 S.E.2d
at 501–2.
20

Defendants defamed her by
a. Publishing editorials in news publications; b. Making false and negative
comments to reporters on news television stations; c. Filing unfounded ethics
complaints against Plaintiff; d. Causing unfounded ethics allegations against
Plaintiff to become public; e. Advising District employees that they work for the
Board; f. Advising District employees that they need to follow the instructions of
Dr. Johnson; g. Undermining Plaintiff’s authority by engaging in the operations of
schools and the District; and h. Other conduct to be proven at trial.
(ECF No. 1 at 19–20 ¶ 103.) Plaintiff further alleges that “[s]uch publications, statements, acts,
and republications are false and have been made in reckless disregard for the truth and with
conscious knowledge of the falsity of the same.” (Id. at 20 ¶ 110.)
Upon consideration of these allegations as pleaded, the court finds that they are not
sufficient to survive Defendants’ MJOP. Specifically, the Complaint’s allegations do not “state
with specificity the time, place, medium, and listener of the alleged defamatory statements.”
Doe v. Cannon, C/A No. C/A No 2:16-cv-00530-RMG, 2017 WL 591121, at *1 (D.S.C. Feb. 14,
2017) (citing, e.g., Caudle v. Thomason, 942 F. Supp. 635, 638 (D.D.C. 1996) (“[I]n order to
plead defamation, a plaintiff should allege specific defamatory comments [including] ‘the time,
place, content, speaker, and listener of the alleged defamatory matter.’”)). In addition, and as
Defendants note, a claim of defamation carries a two year statute of limitations from the time an
alleged defamatory statement is made. (ECF No. 30 at 9 (citing S.C. Code Ann. § 15-3-550(1))),
Therefore, any defamation claim based on Exhibits A–C to the Complaint (ECF Nos. 1-1, 1-2 &
1-3) is barred by the statute of limitations. Accordingly, the court grants the MJOP as to
Plaintiff’s claim for defamation.
6. Negligent Infliction of Emotional Distress Against Defendants
Defendants assert that the claim for negligent infliction of emotional distress (“NIED”) is
barred by the exclusivity provisions of the South Carolina Workers’ Compensation Act. (ECF
No. 20-1 at 21.)
21

In response, Plaintiff agrees that her claim for NIED against the BCSD is barred by the
exclusivity provisions of the South Carolina Workers’ Compensation Act. (ECF No. 28 at 18.)
However, Plaintiff maintains that her NIED claim against Individual Defendants is viable
because she can “demonstrate physical injury that manifested itself due to the actions of the
Defendants.” (Id.)
As a result of Plaintiff’s concession, the court dismisses Plaintiff’s claim against the
BCSD for NIED. Turning to Plaintiff’s NIED claim against Individual Defendants, the court
observes that she alleges that Individual Defendants engaged in outrageous conduct “some of
which was carried out in connection with their job responsibilities.” (ECF No. 1 at 22 ¶ 119.)
“Under South Carolina Code Ann. section 42-5-10 (1985), a co-employee who negligently
injures another employee while in the scope of employment is immune under the Workers’
Compensation Act and cannot be held personally liable.” Strickland v. Galloway, 560 S.E.2d
448, 449 (S.C. Ct. App. 2002). Therefore, the court finds that any alleged conduct by Individual
Defendants “carried out in connection with their job responsibilities” is barred by the South
Carolina Workers’ Compensation Act’s exclusivity provisions. As to any remaining conduct not
in the scope of employment, the court concludes that Plaintiff’s allegations do not state a claim
for NIED. See Stephens v. United States, C/A No. 0:16-cv-149-BHH, 2017 WL 217965, at *3
(D.S.C. Jan. 19, 2017) (“South Carolina law does permit recovery for negligent infliction of
emotional distress, but only in the very limited context of situations involving bystander trauma,
specifically: (a) the negligence of the defendant must cause death or serious physical injury to
another; (b) the plaintiff bystander must be in close proximity to the accident; (c) the plaintiff
and the victim must be closely related; (d) the plaintiff must contemporaneously perceive the
accident; and (e) the emotional distress must both manifest itself by physical symptoms capable

22

of objective diagnosis and be established by expert testimony.”) (citing Kinard v. August Sash &
Door Co., 336 S.E.2d 465, 467 (S.C. 1985)). Therefore, Individual Defendants are also entitled
to dismissal of Plaintiff’s NIED claim.
7. Intentional Infliction of Emotional Distress Against Individual Defendants
Defendants assert that the claim for intentional infliction of emotional distress (“IIED”)
against Individual Defendants is barred by the exclusivity provisions of the South Carolina
Workers’ Compensation Act. (ECF No. 20-1 at 22.) In addition, Defendants assert that the IIED
claim fails because Plaintiff did not “plead facts to meet the heightened threshold required for an
IIED claim.” (Id. at 23.)
As to her IIED claim, Plaintiff asserts that the Motion should be denied because her
medical evidence “shows the severe emotional distress and resulting physical injuries inflicted as
a result of the Defendants’ actions.” (ECF No. 28 at 13.)
“To recover under an intentional infliction of emotional distress theory, a plaintiff must
establish (1) the defendant intentionally or recklessly inflicted severe emotional distress, or was
certain, or substantially certain, that such distress would result from his conduct; (2) the conduct
was so ‘extreme and outrageous’ so as to exceed ‘all possible bounds of decency’ and must be
regarded as ‘atrocious, and utterly intolerable in a civilized community;’ (3) the actions of the
defendant caused plaintiff’s emotional distress; and (4) the emotional distress suffered by the
plaintiff was ‘severe’ such that ‘no reasonable man could expect to endure it.’” Bass v. S.C.
Dep’t of Soc. Servs., 742 S.E.2d 667, 672 (S.C. Ct. App. 2013) (citing Argoe v. Three Rivers
Behavioral Health, L.L.C., 710 S.E.2d 67, 74 (S.C. 2011)). Moreover, there is a heightened
burden found in the second and fourth elements that requires a plaintiff “in order to prevail in a
tort action alleging damages for purely mental anguish [] [to] show both that the conduct on the
part of the defendant was ‘extreme and outrageous,’ and that the conduct caused distress of an
23

‘extreme or severe nature.’” Hansson v. Scalise Builders of S.C., 650 S.E.2d 68, 71 (S.C. 2007)
(citing Ford v. Hutson, 276 S.E.2d 776, 778 (S.C. 1981)).
Upon review, the court first observes that Plaintiff generally alleges intentional conduct
by Individual Defendants (see ECF No. 1 at 22 ¶ 124) thereby placing them outside the scope of
the South Carolina Workers’ Compensation Act. Dickert v. Metro. Life Ins. Co., 428 S.E.2d
700, 702 (S.C. 1993) (“The Worker’s Compensation Act may not be used as a shield for a coemployee’s intentional injurious conduct.”). As to the allegations specifically, Plaintiff states
that she suffered severe emotional distress as a result of the following actions by Individual
Defendants: “a. Filing an unfounded ethics complaint against Plaintiff; b. Continuing to levy
false allegations against Plaintiff publicly after receiving knowledge that the allegations were
false; c. Engaging in activities to force Plaintiff from her position; d. Directing District
employees to not work with Plaintiff; e. Harassing Plaintiff with accusatory emails, statements,
and actions publicly and privately and; f. Other conduct to be proven at trial.” (ECF No. 1 at 22–
23 ¶ 124.)

Assuming the aforementioned allegations to be true, together with plausible

references in Plaintiff’s favor, the court finds that Individual Defendants could be liable to
Plaintiff for conduct so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community. As a result, Individual Defendants are not entitled to dismissal of Plaintiff’s claim
for intentional infliction of emotional distress.
8. Deprivation of Liberty Interest, Violation of Civil Rights and Procedural Due Process
against the BCSD
Defendants assert that Plaintiff failed to allege a liberty interest against the BCSD
because the Complaint lacks allegations demonstrating alleged false statements, their speaker,
their publication, their relation to her termination, and how they stigmatized her reputation. (Id.

24

at 27.) Specifically, Defendants assert that the only statement relevant to Plaintiff’s liberty
interest claim (referencing ECF No. 1-9) neither made “negative statements about Plaintiff” nor
published the reason why the BCSD did not renew the Contract. (ECF No. 20-1 at 28–29.)
Moreover, Plaintiff is unable to show damage to her reputation because “she was able to
immediately obtain new employment in the education field” after the expiration of the Contract.
(Id. at 30.)
Plaintiff attempts to demonstrate “the validity of her liberty interest claim” by asserting
that she “has pled facts and presented supporting exhibits demonstrating the Individual
Defendants making false statements, publicly and privately, that stigmatized her reputation.”
(ECF No. 28 at 8.) Moreover, she asserts that “[t]he actions of the Defendants have damaged
Plaintiff’s reputation to the extent that she cannot obtain new employment in the field of public
education.” (Id.) As a result, Plaintiff argues that she “should be afforded the opportunity to
proceed on her claims as a result and because she has sufficiently pled facts to allege her claims
against the Defendants.” (Id. at 8–9.)
“[I]n order to claim entitlement to the protections of the due process clause . . . a plaintiff
must first show that he has a constitutionally protected ‘liberty’ or ‘property’ interest, and that he
has been ‘deprived’ of that protected interest by some form of ‘state action.’” Johnson v. Morris,
903 F.2d 996 (4th Cir. 1990) (quoting Stone v. University of Md. Med. Sys. Corp., 855 F.2d 167,
172 (4th Cir. 1988)).

“Injury to reputation, standing alone, is not enough to demonstrate

deprivation of a liberty interest.” Fleming v. Rose, 526 S.E.2d 732, 741 (S.C. Ct. App. 2000)
(citing Paul v. Davis, 424 U.S. 693 (1976)). “Yet, injury to reputation does deprive a person of a
liberty interest when the injury is combined with the impairment of ‘some more tangible’
government benefit.” Id. (citing Paul, 424 U.S. at 701). “It is enough, for example, if the

25

plaintiff shows the reputational injury causes the ‘loss of government employment.’” Id. (citing
Paul, 424 U.S. at 706). “To state this type of liberty interest claim under the Due Process Clause,
a plaintiff must allege that the charges against him: (1) placed a stigma on his reputation; (2)
were made public by the employer; (3) were made in conjunction with his termination or
demotion; and (4) were false.” Sciolino v. City of Newport News, Va., 480 F.3d 642, 646 (4th
Cir. 2007) (citing Stone, 855 F.2d at 172 n.5).
Upon review, the court finds that these elements are not all present in Plaintiff’s
Complaint. Specifically, the court observes that Plaintiff’s allegations do not establish that any
false statements were made in conjunction with her placement on administrative leave or the
expiration of the Contract. As a result of the foregoing, the court is constrained to find that
Plaintiff has not sufficiently alleged a Fourteenth Amendment liberty interest due process claim.
Accordingly, the MJOP is granted as to this claim.
9. Deprivation of a Property Interest without Due Process against the BCSD
Defendants argue that Plaintiff cannot establish a property interest in the superintendent
position because she fails to demonstrate a “legitimate claim of entitlement to [continued
employment] arising from a state statute, local ordinance or employment contract.” (ECF No.
20-1 at 32.) In support of the foregoing, Defendants claim that both state law and the Contract’s
language show that “Plaintiff had no legitimate claim of entitlement to continued employment as
superintendent after the expiration of the Employment Agreement.” (Id.)
Plaintiff concedes that “she did not have a property interest in her employment as
superintendent despite the wrongful actions of the Defendants.” (ECF No. 28 at 10.) As a result
of Plaintiff’s concession, the BCSD is entitled to dismissal of the claim alleging deprivation of a
property interest without due process.
V.

CONCLUSION
26

Upon careful consideration of the pleadings (ECF Nos. 1, 14 & 19) and the arguments of
the parties, the court hereby GRANTS IN PART AND DENIES IN PART Defendants’ Motion
for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). (ECF No. 20.)
Accordingly, the court dismisses from this action Plaintiff’s claims for breach of contract
accompanied by fraudulent act (“Count 2”); interference with a contractual relationship (“Count
3”); defamation (“Count 5”); negligent infliction of emotional distress (“Count 6”); deprivation
of liberty interest, violation of civil rights and procedural due process (“Count 8”); and
deprivation of a property interest without due process (“Count 9”). As a result of the foregoing,
the court has dismissed all claims for which it has original jurisdiction.

However, in its

discretion, the court will retain jurisdiction over the remaining state law claims for breach of
contract (“Count 1”), civil conspiracy (“Count 4”) and intentional infliction of emotional distress
(“Count 7”).10

10

The Fourth Circuit explained the court’s discretion as follows:
Once the district court dismissed the federal claims against Defendants, the court
had the authority to retain jurisdiction over the state law claims that were closely
related to the original claims. 28 U.S.C. § 1367(a). However, the district court
also had the discretion to decline to exercise supplemental jurisdiction over claims
outside its original jurisdiction. 28 U.S.C. § 1367(c)(3). We have recognized that
“trial courts enjoy wide latitude in determining whether or not to retain
jurisdiction over state claims when all federal claims have been extinguished.”
Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). In exercising that
discretion, the district court should consider “convenience and fairness to the
parties, the existence of any underlying issues of federal policy, comity, and
considerations of judicial economy.” Semple v. City of Moundsville, 195 F.3d
708, 714 (4th Cir. 1999). In addition, the dismissal may be an abuse of discretion
where the state statute of limitations expired prior to dismissal of the anchor
federal claim. Edwards v. Okaloosa County, 5 F.3d 1431, 1433–35 (11th Cir.
1993); Joiner v. Diamond M Drilling Co., 677 F.2d 1035, 1043 (5th Cir. 1982).

Katema v. Midwest Stamping, Inc., 180 F. App’x 427, 428 (4th Cir. 2006).
27

IT IS SO ORDERED.

United States District Judge
March 28, 2017
Columbia, South Carolina

28