Labor & Employment – Public Employees – Whistleblower – Wrongful Discharge Claim – Defamation

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Plaintiff was fired after emailing defendant’s Chief of Human Resources, suggesting that defendant ignore a nationwide injunction imposed by a federal court in Texas on the enforcement of a new federal labor regulation. Plaintiff did not allege that her grievance resulted in a decision that she would not have been disciplined but for her reporting of the alleged wrongdoing. Therefore, plaintiff has not stated a claim under the Whistleblower Protection Act.

The court grants in part and denies in part defendant’s motion for judgment on the pleadings.

The WPA requires an employee to exhaust administrative remedies and obtain a favorable ruling on the report of alleged wrongdoing in order to bring suit. Although plaintiff contends that it is improbable that the decision-makers in her case – who were also the policy-makers – would invite liability by finding that she was terminated for whistleblowing, a literal application of the words of S.C. Code Ann. § 8-27-30(A) does not lead to a patently absurd result.

In support of her defamation claim, plaintiff has alleged that three named individuals “and others acting on behalf of the Defendant District have published, together and separately, to numerous persons both within and without the District that the Plaintiff is incompetent in her job and that she has engaged in unprofessional conduct some of which violates the policies and procedures of the District. Those publications have been false, malicious and knowingly made.” She clarifies that the publications were made to employees and other community members without justification or privilege.

Plaintiff further alleges that the statements were false, recklessly made, and constitute per se defamation because the statements accused plaintiff of being unfit in her profession and of improper and illegal conduct. Accordingly, plaintiff has stated a claim for defamation.

Plaintiff alleges that she was wrongfully discharged in violation of public policy because she was discharged for insisting upon compliance with the South Carolina Payment of Wages Act. However, plaintiff has an alternative remedy, which she is pursuing, in the Fair Labor Standards Act. Plaintiff’s argument that her public policy discharge claim does not overlap with her other retaliation claims does not alter the fact that she has another statutory remedy available for the allegedly wrongful discharge.

To accept plaintiff’s argument that she can plead her claims in the alternative would essentially nullify decisions such as Bolin v. Ross Stores, Inc., No. 08-cv-2759-MJP, 2009 WL 363990 (D.S.C. Feb.11, 2009) which hold that “no common law public policy wrongful termination claim can be stated where the employee has an existing statutory remedy.”

Plaintiff’s due process claim fails because she was an at-will employee and because she has failed to identify any employment policy or mutually explicit understanding that would support a claim of entitlement to her employment as defendant’s director of classified employment services. As such, she cannot assert any property interest in her continued employment sufficient to state a claim for violation of her due process rights.

Where plaintiff’s allegations do not establish that any facts contained in her termination memo were false, she has failed to state a claim for a violation of her protected liberty interest in her reputation.

Motion granted in part, denied in par.

Thompson v. Richland County School District One (Lawyers Weekly No. 002-116-18, 18 pp.) (Donald Coggins Jr., J.) 3:17-cv-00510; James Lewis Cromer, James Paul Porter and Shannon Polvi for plaintiff; Adam Mandell, Christopher Johnson, Kenneth Allen Davis, Shawn David Eubanks, Tierney Dukes and Vance Bettis for defendant. D.S.C.