South Carolina Lawyers Weekly
A former Charleston County assistant public defender who says he was terminated after he leveled allegations of corruption against the local prosecutor’s office can move forward with much of his lawsuit against his former boss, a federal judge has ruled.
U.S. District Judge Bruce Bowe Hendricks issued a ruling April 16 agreeing with most of the recommendations entered by a magistrate judge in November and allowing Beattie Butler to proceed with most, but not all, of his claims against the Public Defender for the Ninth Circuit, Ashley Pennington.
Butler alleges that, beginning in 2007, he discovered serious prosecutorial misconduct being perpetrated by attorneys from the Ninth Circuit Solicitor’s Office, but Pennington forbade him from reporting it to the Office of Disciplinary Counsel and ordered him not to make any comments critical of the Solicitor, Scarlett Wilson, or her assistants without his permission.
Butler says that instead of keeping mum, he brought his concerns to the South Carolina Association of Criminal Defense Lawyers, which led to SCADCL filing a grievance against Wilson in 2014 alleging misconduct (the grievance was eventually dismissed). Pennington fired Butler in October 2014 while Butler was undergoing chemotherapy to treat cancer, and Butler claims he was fired for disobeying Pennington’s directives regarding complaints about the solicitor’s office.
Butler alleges that Pennington violated his First Amendment rights by restraining his speech and firing him, and is seeking to be reinstated to his old position. He also alleges that his firing violated the Family Medical Leave Act and the Americans with Disabilities Act.
Pennington denies wrongdoing, and countersued Butler for defamation based on statements that Butler made about him, and the circumstances of his firing, to media outlets. In the motions before Hendricks, Pennington asked to have all of Butler’s claims dismissed and requested summary judgment for his own defamation claims.
In restraint of tirades
Hendricks denied most of those requests. Butler’s claim for restraint of speech could go ahead, she wrote, because there was enough evidence to conclude that the speech was related to a matter of significant public concern—alleged ethical misconduct by the local prosecutor’s office—and to create questions for a jury as to whether Pennington restrained Butler’s speech unlawfully by ordering him not to disclose alleged ethical misconduct, and whether his legitimate managerial interest outweighed Butler’s First Amendment interests.
Hendricks also ruled that Butler’s First Amendment claims were not contradicted by his claims for violations of the ADA, in which Butler alleges that his sacking was strategically timed during a specific course of his treatment that was especially debilitating and physically demanding.
“Plaintiff argues that these averments, taken together, represent a ‘novel claim under ADA law’ that Pennington used the timing of a particularly difficult stage of his illness and treatment to take advantage of his cancer disability when effecting his termination,” Hendricks wrote. “Without expressing any opinion on the viability of Plaintiff’s ‘novel’ disability discrimination theory … it is not fundamentally at odds with Plaintiff’s core assertion that he was fired for making ethical allegations against personnel from the Solicitor’s Office.” (Emphasis in the original.)
Hendricks also found that Pennington, in his personal capacity, was not entitled to qualified immunity against Butler’s First Amendment claims because it was clearly established that Butler maintained a First Amendment right to report alleged prosecutorial misconduct by the Ninth Circuit Solicitor’s Office. She did dismiss Charleston County from those claims, and ruled that Butler could sue Pennington in his official capacity, but only to pursue injunctive relief (his reinstatement), for those claims.
But on Butler’s FMLA claims the result was just the opposite—Pennington was dismissed from those claims, while Butler’s claims against Charleston County were allowed to continue.
Hey, that’s us
Hendricks denied Pennington’s motion for summary judgment in his favor on his defamation claim, finding that there was a clear factual dispute over whether Pennington ordered Butler not to file a grievance, and that issues of fact remained over whether such statements would actually qualify as defamation.
Pennington claims that Butler falsely told at least nine attorneys that he had ordered Butler not to file a grievance, thereby inferring that Pennington was unethically “covering for” or protecting the Solicitor at the expense of the best interests of his clients and the community. He also alleges that Butler repeated the allegedly false statement to a South Carolina Lawyers Weekly reporter, and that our newspaper then published the statement to members of the state’s bar and the broader community. Pennington says that he learned of the grievance’s existence when the same reporter called him to ask him about it.
Lawyers Weekly (no apostrophe, by the way) has indeed reported extensively over the course of many years about the dispute between Butler and Pennington, but Butler did not leak the grievance to this newspaper and had no role in our first reporting that SCACDL had complained about Wilson’s conduct. (This newspaper later unsuccessfully sought to compel Wilson to comply with a FOIA request to produce any disciplinary complaints against her.)
Butler has filed his own defamation suit against Pennington; Hendricks denied Pennington’s motion to dismiss those claims.
Jonathan Kiker of Hilton Head Island and Michael Corley of Greenville represent Butler. Bob Conley, Caroline Wrenn Cleveland, and Emmanuel Ferguson of Charleston and Lucy Clark Sanders and Nancy Bloodgood of Mount Pleasant represent Pennington. The attorneys could not be immediately reached for comment on the ruling.
The 29-page decision is Butler v. Pennington (Lawyers Weekly No. 002-028-19). An opinion digest is available online at sclawyersweekly.com.
Follow David Donovan on Twitter @SCLWDonovan
