Labor & Employment – Public Employees – Official & Individual Capacities – FLSA & SCPWA – Whistleblower Act

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Billioni v. Bryant (Lawyers Weekly No. 002-147-15, 22 pp.) (J. Michelle Childs, J.) 0:14-cv-03060; D.S.C.

Holding: Where the defendant-sheriff is an arm of the state, and where plaintiff has not shown that the State of South Carolina has explicitly waived its sovereign immunity as to its potential liability under the Fair Labor Standards Act, plaintiff’s claim under the FLSA against defendant in his official capacity is barred.

The court grants defendant’s motion for partial summary judgment.

Plaintiff’s FLSA claim indicates that defendant’s allegedly unlawful actions were inextricably tied to his official duties. Plaintiff includes no allegation that, in so acting, defendant attempted to serve personal interests distinct from his official duties. Accordingly, the court finds that defendant in his official capacity is the real party in interest, and sovereign immunity grounded in the Eleventh Amendment requires dismissal of plaintiff’s claim.

Insofar as plaintiff seeks monetary damages under 42 U.S.C. § 1983 against defendant in his official capacity, defendant is not a person within the meaning of § 1983.

Furthermore, the Eleventh Amendment bars suit in federal court for money damages against an unconsenting state. This immunity extends to arms of the state. In his official capacity, a sheriff is an arm of the state. Therefore, defendant, in his official capacity, is an arm of the state and thus entitled to Eleventh Amendment immunity as to claims for monetary damages.

Although plaintiff may sue defendant in his official capacity for prospective injunctive relief, retroactive relief in the form of back pay and benefits is barred by the Eleventh Amendment.

Plaintiff has failed to exhaust all of his administrative remedies; accordingly, his whistleblower claim against defendant in his official capacity is barred.

The Whistleblower Act does not provide for individual liability; instead, it makes a public body answerable for such claims. The definition of public body in the Whistleblower Act does not include natural persons. Thus, plaintiff’s whistleblower claim against defendant in his individual capacity is barred.

Since plaintiff has a § 1983 remedy to vindicate his free speech and association rights, the public policy exception to the employment-at-will doctrine does not extend to plaintiff’s situation.

Plaintiff has a statutory cause of action for his First Amendment free speech claim through § 1983 as well as a statutory remedy for retaliation through the Whistleblower Act. Accordingly, plaintiff’s retaliation and wrongful termination claim against defendant in his official capacity is barred.

Defendant maintains that plaintiff’s retaliation and wrongful termination in violation of public policy claim against defendant in his individual capacity is barred because the cause of action lies only against employers, not individuals. South Carolina’s public policy exception has its origins in Ludwick v. This Minute of Carolina, Inc., 337 S.E.2d 213 (S.C. 1985). In recognizing this public policy exception, Ludwick relied in part on Sides v. Duke Univ., 328 S.E.2d 818 (N.C. Ct. App. 1985), which rejected individual liability because there was no employment relationship between the individuals and the plaintiffs. Importantly, the District of South Carolina has expressed doubt over the existence of individual liability for a wrongful discharge claim. Accordingly, plaintiff’s public policy claim against defendant in his individual capacity is barred.

Plaintiff seeks compensation for allegedly unpaid meal breaks and training. The FLSA provides regulations for determining when meal times and training times must be counted as work. Accordingly, the FLSA preempts plaintiff’s South Carolina Payment of Wages Act claim against defendant in his individual capacity.

Motion granted.