Kennedy v. Richland Cnty. Sch. Dist. Two

• Decision Date: 24 July 2019
• Docket Number: Opinion No. 5669,Appellate Case No. 2015-000613
• Court: South Carolina Court of Appeals
• Parties: Jeffrey KENNEDY, Respondent, v. RICHLAND COUNTY SCHOOL DISTRICT TWO, Eric Barnes, and Chuck Earles, Appellants.

428 S.C. 98

833 S.E.2d 414

Jeffrey KENNEDY, Respondent,

v.RICHLAND COUNTY SCHOOL DISTRICT TWO, Eric Barnes, and Chuck Earles, Appellants.

Appellate Case No. 2015-000613

Opinion No. 5669

Court of Appeals of South Carolina.

Heard November 17, 2016

Filed July 24, 2019

Rehearing Denied October 24, 2019

Kathryn Long Mahoney and Thomas Kennedy Barlow, both of Halligan Mahoney & Williams, of Columbia, for Appellants.

Thomas Jefferson Goodwyn, Jr. and Rachel Gottlieb Peavy, both of Goodwyn Law Firm, LLC, of Columbia, for Respondent.

WILLIAMS, J.:

In this civil matter, Richland County School District Two (the District), Eric Barnes, and Chuck Earles (collectively, Appellants) appeal the circuit court's award of actual and punitive damages to Jeffrey Kennedy in his defamation claim against them. Upon our initial consideration of this appeal, we reversed, finding Appellants acted within their qualified privilege. See Kennedy v. Richland Cty. Sch. Dist. Two , Op. No. 2017-UP-040, 2017 WL 393976 (S.C. Ct. App. filed Jan. 25, 2017). Respondent petitioned for a writ of certiorari. Our supreme court granted the writ, reversed our decision, and remanded the case to this court for consideration of Appellants' remaining issues on appeal. As to their remaining issues, Appellants contend the circuit court erred in (1) denying their motions for directed verdict and judgment notwithstanding the verdict (JNOV) regarding the defamation claim; (2) denying their motion for JNOV regarding individual capacity claims under the South Carolina Tort Claims Act (SCTCA); (3) denying their motion for JNOV regarding punitive damages, or alternatively, for a new trial absolute or nisi remittitur , and in affirming the constitutionality of the punitive damages award; (4) excluding evidence of Kennedy's alleged theft and termination from a subsequent employer that occurred during the pendency of the trial; and (5) failing to instruct the jury that no defamatory communication was made as a result of Kennedy's termination from the District and that Kennedy's termination was not part of his defamation claim. On remand, we affirm.

FACTS/PROCEDURAL HISTORY

Kennedy started working for the District in May 2008 as a security guard. Kennedy worked the third shift from 11:00 P.M. to 7:00 A.M., and he provided security for several schools, including Spring Valley High School (Spring Valley),¹ his base of operation. Specifically, Kennedy's security job required him to patrol the grounds of each school in his rotation, check all of the windows, secure doors, activate and reset alarms, and respond to alarm calls in the District. Although the third shift provided Kennedy with a normal hourly rate, Kennedy obtained a greater amount of pay by working overtime hours during events at Spring Valley.

Spring Valley gave Kennedy a set of keys, which provided him access to the various buildings and offices on campus and allowed him to properly perform his security duties. Unfortunately, security at Spring Valley was difficult to maintain because of the numerous keys issued to various groups of people including parents, students, teachers, coaches, administration, student groups, and custodial staff.

In 2010, the District named Earles as the Emergency Services Manager—essentially, the District's head of security—and Earles hired Barnes as his Assistant Security Manager. After perceiving the department's reputation of spreading gossip and rumors, Earles issued a "Change of Culture" memorandum to the entire department imploring the staff to not repeat rumors and to "MIND YOUR OWN BUSINESS." In February 2011, Earles recommended Kennedy for a promotion to lieutenant after Kennedy applied for the position. Kennedy was scheduled to start his new position within the department on March 7, 2011.

However, on March 4, 2011, Tim Hunter, Spring Valley's athletic director, reported a theft of $1,000 from his office in Bates Hall. Several people had keys to Hunter's office, including Kennedy, the custodial staff, and the athletic coaches. Kennedy was on duty the night of the alleged theft, and as a result, he set the alarm in Bates Hall that night, and he turned the alarm off the next morning. Sometime between when Kennedy initially set the alarm and when he turned it off the next morning, the baseball team returned from a game and set off the alarm in Bates Hall. Kennedy was called to respond, but he did not enter the building because he observed the baseball team inside as well as the baseball coach disarming and re-setting the alarm.

Following the reported theft, Appellants reviewed the videotape footage from the time Kennedy set the alarm to when he turned it off. There were only two cameras with recorded images. One showed traffic going by outside, and one showed the entrance and exit of Bates Hall. Neither of these camera covered the athletic director's office––the location of the reported missing funds. The videotape of the entrance to the building showed Kennedy turning off the alarm around 5:50 A.M. and leaving the camera's viewing range for about five minutes before exiting the building.

After reviewing the inconclusive video footage, Appellants believed Kennedy was the thief, and they questioned him about the incident twice in the presence of human resources (HR) staff. Appellants performed no further investigation and, specifically, did not interview others who were present in the building that night with access to the athletic director's office, including coaches, players, and custodial staff. Instead, Appellants placed Kennedy on paid administrative leave and turned over the investigation to the Richland County Sheriff's Office. Barnes acted as "liaison" between the District and the sheriff's office. The investigation focused mainly on Kennedy, although testimony indicated that various other people were around the area of the theft on the night of March 3, 2011. The sheriff's office never criminally charged Kennedy, or anyone else, with the theft of $1,000, but Appellants testified they believed Kennedy was the thief, and stated Kennedy could not be trusted as a security officer because he was a "common denominator" in the various other thefts that occurred at Spring Valley around the same time.

Following the theft accusations and subsequent investigations, the District's HR office informed Kennedy that he would no longer be considered for the promotion to lieutenant, but they permitted him to return to work. The District scheduled Kennedy to return to work on June 16, 2011. Prior to his return, however, Earles decided Kennedy would not be allowed to have keys or patrol buildings. Instead, Earles assigned Kennedy to the security watch room in what amounted to a reduced, desk-duty role. Due to the twenty-four-hour nature of the security department and the rare interaction with second and third shift personnel, instead of holding a mandatory meeting, Earles elected to send a confidential email on June 15, 2011, informing personnel of his decision regarding Kennedy. Earles addressed the email to security supervisors and an HR director.²

Earles's June 15, 2011 email, addressed with the subject line "CONFIDENTIAL ," read as follows:

THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND WILL ONLY BE SHARED WITH OTHER DISTRICT SECURITY SUPERVISORS, AS NEEDED, WHEN THEY WILL BE SUPERVISING MR. KENNEDY.

Mr. Kennedy will be reporting to work tomorrow night (Thursday, June 16) to work on 3rd shift, weekdays. This will be his permanent assignment.

I have told him that he will be assigned to work the watch room answering phones and performing whatever other duties are necessary in the watch room. [sic] His [sic] is NOT to be given any assignment that involves having keys to any District facility.

Thank you.

Appellants admit the email contained sensitive information that could harm Kennedy if it was released beyond its intended recipients. The email managed, however, to reach personnel beyond those intended recipients. While Appellants claim they did not print and place the email within the confines of the District,³ Kennedy and other witnesses testified they saw and read the printed email while it was located in unsecured District security vehicles and on a desk in an unsecured office where every security employee filled out their time cards.

Kennedy stated Appellants' distrust in him and their belief that he was a thief negatively impacted his life outside of the District. Prior to the theft accusations, Kennedy was actively involved in his church as a youth mentor and as security for his church's pastor during the collection of the offering plate. After the accusations, however, the church no longer scheduled Kennedy or asked for his assistance.

Kennedy continued to work at the District until October 2012, when he was terminated from his position.⁴ At trial, Kennedy presented evidence of his difficult home life following his termination, which included his eviction from his home, divorce from his long-term wife, repossession of his car, and cashing out of his retirement fund. Kennedy was able to secure work with Allied Barton Security, but he resigned in February 2014 after allegations surfaced that he stole a five-dollar pair of safety goggles and ten dollars in cash.⁵ At the time of trial, Kennedy was working for GEO Care as a security officer.

On March 11, 2013, Kennedy filed a lawsuit in the circuit court alleging multiple causes of action against numerous defendants, including Earles and Barnes. Prior to trial, Kennedy dismissed certain named defendants, leaving only the District, Appellants, and Kim Jones as named defendants. On the first day of trial, Kennedy filed a motion in limine seeking exclusion of any evidence or cross-examination related to specific instances of petty theft he was accused of while working as a security guard for Allied Barton in February 2014.⁶ The circuit court granted the motion to exclude the proffered witness' testimony as inadmissible character evidence...