Greene v. Scott et al

Filing 63

ORDER RULING ON REPORT AND RECOMMENDATION adopting 50 Report and Recommendation, granting 29 Motion for Summary Judgment. Signed by Honorable Joseph F. Anderson, Jr. on 05/06/2015. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Isa P. Greene,

C/A No. 3:13-cv-0567-JFA
Plaintiff,

vs.
Randy Scott, individually and in his official
capacity as chief of the Columbia Police
Department; and City of Columbia

ORDER

Defendants.

I.

INTRODUCTION

Isa P. Greene (“Plaintiff”) has filed a lawsuit alleging a claim under 42 U.S.C. § 1983 for
violation of her Fourteenth Amendment right to due process against the City of Columbia and
former Police Chief, Randy Scott (“Defendants”).1
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the case
was referred to the Magistrate Judge for pretrial handling.2

Before the Magistrate Judge,

Defendants moved for summary judgment. (ECF No. 29).

Plaintiff filed a Response in

Opposition (ECF No. 37), and Defendants filed a reply. (ECF No. 39). This is the motion
currently before this Court.

1

Plaintiff also asserted four additional causes of action in her Complaint: (1) Hostile Work Environment, (2) Wage
Discrimination in violation of Title VII and SCHLA, (3) Wage Discrimination in violation of the EPA, and (4)
Retaliatory Discharge. As Plaintiff declined to address these claims in her opposition memorandum to Defendants’
summary judgment motion, the Magistrate deemed these causes of action abandoned. Plaintiff did not object to this
finding by the Magistrate. Therefore, this Court is not required to make a de novo review of the Magistrate’s
findings and the Court adopts the recommendation of the Magistrate that these claims are now abandoned. Wright v.
Collins, 766 F.2d 841, 845-46 (4th Cir. 1985) (finding a party who fails to object to a magistrate judge’s proposed
findings of fact and conclusions of law is not entitled to de novo review of the magistrate judge’s determination and
is barred from appealing the judgment of a district court adopting the magistrate’s findings).
2
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive
weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S.
261 (1976).

On January 21, 2015, the Magistrate Judge issued a Report and Recommendation
(“Report”) wherein she recommends that this court grant Defendants’ motion for summary
judgment (ECF No. 50). Plaintiff filed a statement of objection to the Report. (ECF No. 60).
Defendants filed a Response to Plaintiff’s objections. (ECF No. 61). Thus, this matter is ripe for
the Court’s review.
The court is charged with making a de novo determination of those portions of the Report
to which specific objections are made, and the court may accept, reject, or modify, in whole or in
part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. § 636(b)(1). However, a district court is only required to
conduct a de novo review of the specific portions of the Magistrate Judge’s Report to which an
objection is made. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); Carniewski v. W. Virginia Bd.
of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to
portions of the Report of the Magistrate, this Court is not required to give an explanation for
adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
The Report sets forth in detail the relevant facts and standards of law on this matter, and
the court incorporates those without a recitation.
II.

DISCUSSION

Plaintiff has lodged two objections to the Report rendered by the Magistrate.
Specifically, Plaintiff contends the Magistrate erred (1) in concluding that Plaintiff cannot
establish the first element of her liberty interest claim, and (2) in concluding that the statements
made concerning Plaintiff were merely statements related to incompetence.

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A. First Element of Liberty Interest Claim
In order to show a liberty interest protected by the Due Process Clause, Plaintiff must
demonstrate the charges against her: (1) placed a stigma on her reputation, (2) were made public
by the employer, (3) were made in conjunction with her termination or demotion, and (4) were
false. Sciolino v. City of Newport News, 480 F.3d 642, 646 (4th Cir. 2007) (citing Stone v. Univ.
of Md. Med. Sys. Corp., 855 F.2d 167, 173 n.5 (4th Cir. 1988)). In her analysis, the Magistrate
concluded that Plaintiff cannot establish that the public statements made about her placed a
stigma on her reputation. Plaintiff objects to this determination on two grounds: (1) the
Magistrate used the wrong standard in assessing Plaintiff’s claim, and (2) a genuine issue of
material fact exists as to whether the public announcement of Plaintiff’s termination placed a
stigma on her reputation.
Plaintiff first argues that the Magistrate used the incorrect standard in evaluating her
claim. Specifically, Plaintiff argues, “[t]he proper question is not whether Plaintiff can establish
the first element, but whether, when viewing the evidence in the light most favorable to the
Plaintiff there is a genuine issue of material fact existing as to each essential element of the
claim.” (ECF No. 60). In opposition, Defendants argue the appropriate standard was utilized and
applied by the Magistrate, and Plaintiff failed to present any evidence that the statements made
about her were false or that those statements accused her of dishonesty or immorality.
The Magistrate explained in her report that in discrimination cases, “a party is entitled to
summary judgment if no reasonable jury could rule in the non-moving party’s favor.” (ECF No.
50) (citing Dennis v. Columbia Colletion Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). As
such, “[t]he court must determine whether a party’s offered evidence is legally sufficient to
support a finding of discrimination and look at the strength of a party’s case on its own terms.”

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(Id.) (citing Dennis at 148 (stating that “[c]ertainly there will be instances where, although the
plaintiff has established a prima facie case and set forth sufficient evidence to reject the
defendant’s explanation, no rational fact-finder could conclude that the action was
discriminatory.”)).
Review of the Report indicates the Magistrate properly utilized this standard in finding
that summary judgment was appropriate based on her determination that Plaintiff failed to
provide evidence sufficient to establish the first element of a liberty interest claim.

It is

axiomatic that Plaintiff’s failure to prove all the elements of her claim would produce but one
result at trial: a reasonable jury that cannot find in Plaintiff’s favor. Therefore, the Court finds
the Magistrate applied the appropriate standard in her assessment of Plaintiff’s claim.3
Plaintiff also argues that a genuine issue of material fact exists as to whether the
Defendants’ public announcement of her termination placed a stigma on her reputation. Plaintiff
contends that her liberty interest was violated because her reputation was damaged when she was
publically fired from the police force. In support of this assertion, Plaintiff directs the Court to a
newspaper article that appeared in The State newspaper following Plaintiff’s firing and her
deposition testimony.4
The newspaper article submitted by Plaintiff was published by The State newspaper and
focused on the firing of Plaintiff and another law enforcement officer as a result of the Tom
3

Plaintiff also maintains that the “the only issue [the Magistrate] concluded is at issue in is the first element – ‘the
stigma element’. Therefore, [the Magistrate] implicitly concluded that the statements made by the Defendant in
conjunction with [Plaintiff’s] termination were false or at least there was a genuine issue of material fact concerning
the falsity of the statements.” (ECF No. 60). The Court disagrees and finds that this construction of the Magistrate’s
Report is erroneous. The Magistrate’s Report makes no such finding, directly, impliedly, or otherwise. The Report
does not address the additional elements necessary to prove a liberty interest violation because the Magistrate
determined that Plaintiff was unable to prove the first element necessary for such a claim. Accordingly, review of
the other elements was not warranted.
4
Plaintiff’s deposition excerpts and the newspaper article were not submitted by Plaintiff when she filed her
memorandum in opposition to Defendants’ motion for summary judgment. In her Report, the Magistrate assumed
for purposes of her findings that all testimony cited by Plaintiff’s counsel was an accurate recitation of Plaintiff’s
deposition. (ECF No. 50). After the Magistrate’s Report was issued and upon motion of Plaintiff, this Court allowed
Plaintiff to file her deposition transcript in toto, as well as the newspaper article for consideration. (ECF No. 57).

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Sponseller investigation. The story quotes a statement of support made by Steve Benjamin,
Mayor of the City of Columbia, for the Columbia police chief’s termination decision. Plaintiff
offers this newspaper article as evidence of her sullied reputation. Conversely, Defendants urge
the Court not to consider this evidence in its analysis because it is inadmissible hearsay.
The Fourth Circuit has routinely held that hearsay evidence, which is inadmissible at
trial, is likewise inadmissible at the summary judgment stage. Maryland Highways Contractors
Ass'n, Inc. v. State of Md., 933 F.2d 1246, 1251-52 (4th Cir. 1991) (citing Rohrbough v. Wyeth
Laboratories, Inc., 916 F.2d 970, 973–74 n. 8 (4th Cir.1990)); see also Sakaria v. Trans World
Airlines, 8 F.3d 164, 171 (4th Cir.1993) (finding that the district court properly did not consider
inadmissible hearsay in an affidavit filed with motion for summary judgment); Mitchell v. Data
General Corp., 12 F.3d 1310, 1315-16 (4th Cir.1993) (“The summary judgment inquiry thus
scrutinizes the plaintiff's case to determine whether the plaintiff has proffered sufficient proof in
the form of admissible evidence that could carry the burden of proof in his claim at trial.”).
In evaluating the admissibility of newspaper articles in particular, the Fourth Circuit has
consistently found that “newspaper articles are inadmissible hearsay to the extent that they are
introduced ‘to prove the factual matters asserted therein.’” United States v. ReBrook, 58 F.3d
961, 967 (4th Cir.1995); Gantt v. Whitaker, 57 F. App'x 141, 150 (4th Cir. 2003) (finding that
district court did not abuse its discretion by excluding the newspaper article because plaintiff
“failed to establish the prerequisites for applicability of an exception to the hearsay rule.”). Here,
based on Plaintiff’s objections, it is clear she wishes to admit the newspaper article for the
purpose of establishing that the statements quoted in the story were, in fact, made by the Mayor.
In short, Plaintiff intends to use the article to “prove the factual matters asserted therein.” Use of
the article in this fashion constitutes inadmissible hearsay because Plaintiff has failed to provide

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the Court with an applicable hearsay exception allowing for its admission and consideration by
the Court.
B. Statements Regarding Plaintiff’s Incompetence
Plaintiff’s second objection to the Report centers on her contention that the Magistrate
narrowly interpreted Plaintiff’s allegations and erred in concluding that the statements made
concerning the Plaintiff were merely statements concerning her incompetence. First, Plaintiff
maintains the Magistrate should have looked to the well-pleaded allegations of the Complaint in
order to ascertain the extent of Plaintiff’s claims and the fact that Plaintiff’s termination is about
more than just competency issues. Plaintiff goes on to cite the specific allegations contained her
in Complaint as proof that the statements made by Defendants question Plaintiff’s honesty,
integrity, and professionalism.
To the extent Plaintiff attempts to offer the complaint as evidence of her claims, the Court
finds that at this procedural stage it is improper for Plaintiff to merely rely on her pleadings as a
mechanism for overcoming summary judgment. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.
1991) (“As a general rule, when one party files a motion for summary judgment, the non-movant
cannot merely rely on matters pleaded in the complaint, but must, by factual affidavit or the like,
respond to the motion.”) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Kipps v.
Ewell, 538 F.2d 564, 566 (4th Cir.1976); Fed.R.Civ.P. 56(e)); Hubbard v. U.S. Postal Serv., No.
85-4812, 1986 WL 12748, at *2 (D. Md. Nov. 7, 1986) (“In order for a plaintiff to oppose a
motion for summary judgment in an employment discrimination case, he cannot simply rely on
the allegations of his complaint. He must produce evidence countering that presented by the
moving party.”) (citing International Woodworkers v. Chesapeake Bay Plywood, 659 F.2d 1259
(4th Cir.1981)). Therefore, this Court will not consider the allegations of Plaintiff’s complaint as

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evidence sufficient to overcome summary judgment, and it was not error for the Magistrate to
disregard these allegations in her analysis.
Second, Plaintiff urges the Court to review her deposition testimony, which she claims
reveals statements of more than just incompetence. As set out by the Magistrate, in order to
implicate a constitutionally protected liberty interest in her reputation, Plaintiff must demonstrate
that the public statements made about her conferred a “badge of infamy” or created some stigma
against her character. Sciolino v. City of Newport News, 480 F.3d. 642, 647 n.2, 653 (4th Cir.
2007) (citing Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). Since due process is
triggered when a person’s good name, reputation, honor, or integrity is at stake, the objectionable
statements must imply the existence of a serious character defect such as dishonesty or
immorality. Bd. of Regents v. Roth, 408 U.S. 564, 573(1972); Sciolino, 480 F.3d at 647 n.2;
Robertson v Rogers, 679 F.2d 1090, 1092 (4th Cir. 1982).
As such, allegations of mistakes or even incompetence are not enough. Sciolino, 480 F.3d
at 647 n.2; Roberston, 679 F.2d at 1092; see also Bunting v. City of Columbia, 639 F.2d 1090,
1094 (4th Cir. 1981) (public statements that the services of discharged police officers did not
meet the expectations of the police department were insufficient to trigger a protected liberty
interest). In fact, our own Circuit has repeatedly distinguished statements that imply serious
character defects from those that simply allege incompetence. Compare Boston v. Webb, 783
F.2d 1163, 1165-66 (4th Cir. 1986) (recognizing that plaintiff’s liberty interest “was surely
implicated” by public announcement that he was discharged after failing to disprove allegations
of receiving a bribe), Cox v. N. Va. Transp. Comm’n, 551 F.2d 555, 557-58 (4th Cir. 1976)
(affirming trial court’s determination that plaintiff’s liberty interest was infringed when employer
publically linked her discharge to investigation of financial irregularities, thus “insinuating

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dishonesty”), and McNeil v. Butz, 480 F.2d 314, 319-20 (4th Cir. 1973) (concluding that federal
employees’ interests were implicated by government employer’s charges of Agriculture
Department regulation violations that “smack of deliberate fraud” and “in effect allege
dishonest”) with Zepp v. Rehrmann, 79 F.3d 381, 388 (4th Cir. 1996) (rejecting deprivation of
liberty interest claim where employer announced that plaintiff was being forced to retire “due to
management problems” which was an accusation at most of “incompetence or unsatisfactory job
performance”), and Roberston, 679 F.2d at 1091-92 (concluding that liberty interest was not
implicated by nonrenewal of employment contract for “incompetence and outside activities”
because such allegations did not involve attack on plaintiff’s integrity or honor).
Review of Plaintiff’s deposition reveals she considered Defendants’ statements to imply
that she was incompetent as a police officer. Plaintiff testified, “The only thing [Defendant
Scott] said was related to his press conference when he and the mayor said I was incompetent
pretty much.”, and “[The statements] portrayed me as being an incompetent leader.” (Greene
Dep. 92: 7-9; 190: 13). As reflected in controlling jurisprudence, these statements of mere
incompetence are insufficient to trigger a protected liberty interest. Moreover, while Plaintiff
also testified that she was exposed to embarrassment and ridicule (Greene Dep. 191: 14-18) and
that she believes her reputation as a police officer was tarnished as result of the public
termination (Greene Dep. 192: 3-6), she has failed to point to any statements reflecting poorly on
her character, such as dishonesty or immorality. Accordingly, the Magistrate did not err in
finding that these statements of incompetence do not constitute a “stigma” such that a liberty
interest protected by the Due Process Clause would be implicated.
Finally, Plaintiff asserts that the Magistrate misconstrued controlling case law by
requiring Plaintiff to demonstrate that the Defendants took steps to foreclose her from obtaining

8

employment as a police officer elsewhere. Plaintiff argues that the Magistrate “heightened” the
requirement set forth in Bd. of Regents v. Roth, 408 U.S. 564, 573(1972). Review of the Roth
Court decision and its progeny reveals that foreclosure from obtaining employment elsewhere is
but another way for a plaintiff to ultimately prove a liberty interest violation. As the Fourth
Circuit explained in Bunting, “In [Roth] the Supreme Court indicated that when a public
employer who, in refusing to rehire an employee, makes charges against him that might damage
his standing in the community or otherwise impose a stigma on the employee that forecloses his
freedom to take advantage of other employment opportunities, an employee’s interest in liberty
may be implicated . . .” Bunting, 639 F.2d at 1094 (emphasis added) (finding that plaintiffs were
not “stigmatized to such a degree that their freedom to take advantage of other employment
opportunities was foreclosed”).

See also, Sciolino, 480 F.3d at 649 (“A public employer who

fires (or refuses to rehire) and employee in a manner that sullies the employee’s good name and
restricts his future employment opportunities deprives him of important liberty interests
protected by the Fourteenth Amendment.”); Hamilton v. Mayor & City Council of Baltimore,
807 F.Supp.2d 331, 357 (D.Md. 2011) (“By marking the employee as one who lost his job
because of dishonesty or other job-related moral turpitude, the state has made the employee all
but unemployable in his chosen occupation.”) (internal quotation marks and citations omitted).
Accordingly, the Magistrate found that Plaintiff’s failure to present any evidence
suggesting that she was foreclosed from obtaining other gainful employment lent further support
for granting Defendants’ summary judgment motion. Therefore, the Court finds no fault in this
analysis by the Magistrate.5

5

In their Response to Plaintiff’s Objections to the Report, Defendants’ discuss the name-clearing opportunities
afforded to Plaintiff post-termination and argue that the public hearing and press conference comply with due
process requirements. The implications of pre-termination versus post-termination proceedings on her liberty

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III.

CONCLUSION

After a careful review of the record, of the applicable law, and of the Report and the
objections thereto, this Court finds the Magistrate Judge’s recommendation is proper.
Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate and hereby
GRANTS Defendants’ motion for summary judgment.

IT IS SO ORDERED.

May 6, 2015
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

interests were not specifically raised by Plaintiff in her objections. Accordingly, the Court does not find it necessary
to address this issue.

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