7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 1 of 15 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA SPARTANBURG DIVISION

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1 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 1 of 15 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA SPARTANBURG DIVISION Michael Cash, Plaintiff, v. C.A. No. 7:16-cv BHH Dr. Ronald W. Garner, Individually and in his Official Capacity as Superintendent of Spartanburg School District One and Spartanburg County School District One Defendants. DEFENDANT SCHOOL DISTRICT S ANSWER AND AFFIRMATIVE DEFENSES Defendant Spartanburg County School District One ( the District ), by and through its undersigned counsel, hereby submits its Answer and Affirmative Defenses in response to the First and Third Causes of Action of the Complaint of Michael Cash ( Cash ). The Second Cause of Action is subject to a pending Motion by the District to dismiss for failure to state a claim, pursuant to Fed. R. Civ. Pro. 12(b)(6). The District answers below, the allegations of the Complaint in response to the numbered paragraphs thereof, without waiving any of its defenses. PRELIMINARY STATEMENT Defendant District files contemporaneously with this Answer and Affirmative Defenses a Motion to Dismiss the Complaint s Second Cause of Action (Violation of First Amendment Rights, 42 U.S.C. 1983). Subject to that Motion, the District answers herein all allegations of the Complaint, including those pertaining to the Second Cause of Action. 1

2 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 2 of The District admits that in this action, Cash seeks to present claims pursuant to the statutes cited in Paragraph 1 of the Complaint, but denies that it violated any statute, constitution, federal or state law, common law, or that it engaged in any wrongful act whatsoever. 2. The District denies that this Court is justified to award any relief to Cash and denies that it has violated Cash s constitutional rights or in any way caused harm to Cash. The District states that Cash, in the matter at issue, acted unprofessionally and in disregard of the best interests of students. 3. The District admits that it is a body politic incorporate and a public entity under the laws of South Carolina with the authority to sue and be sued in its own name. The District states that only it, and not Dr. Garner, should even be named as a defendant in this action. 4. The allegations of Paragraph 4 of the Complaint regarding the District operating public schools within the District and H.B. Swofford Career Center ( the School ) are admitted. The District states that it is the fiscal and operating agent for the School and that the District s policies and practices, including those related to personnel, govern the School, although the School also serves students who attend Spartanburg County School District Two. The remaining allegations of Paragraph 4 are denied. 5. The District admits that at all relevant times under Cash s allegations, it was a person which has acted, properly so, under the color of state law, within the meaning of 42 U.S.C The District states that Cash fails to state a claim under 1983 and the Constitution because public school teachers do not have a constitutional right under the First Amendment, as part of their so-called academic freedom, to assign grades to students without 2

3 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 3 of 15 appropriate review by administrators. The District further states that Cash improperly prepared a retest with the intent to re-grade it for the two students involved in this matter. Cash arbitrarily, and without communicating with School or District administration, decided to time the retest, which has never been one of Cash s normal assessment practices. Cash also incorporated content and material in the retest with the intent to cause the students to fail the exam. 6. It is admitted that Ronald W. Garner, at all relevant times herein, was and is the Superintendent of District One, and that Cash seeks to sue Garner individually and in his official capacity. It is denied that Garner is in any way liable to Cash or that he acted in combination and concert with the District in regard to Cash. Concerning the allegations of the second sentence of Paragraph 6, it is admitted only that Garner, as Superintendent, is one of the officials responsible for implementing the District s policies; the remaining allegations of the second sentence, and any inferences therefrom, are denied. The remaining allegations of Paragraph 6 constitute a legal conclusion which requires neither an admission nor a denial, but if a response is required, those allegations are denied. 7. The allegations of Paragraph 7 relating to Cash s residency and the allegation that he was a teacher and educator with the District and at the School are admitted. 8. The allegations of Paragraph 8 regarding the School and its role and function are admitted. 9. The District states that venue is proper in the United States District Court, the District of South Carolina, Spartanburg Division. 10. The allegation of Paragraph 10 regarding the courses and students whom Cash taught are admitted, except the District denies that the course EDD111 is an honors level course; it is rather a college preparatory course. 3

4 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 4 of The allegations of Paragraph 11 regarding Cash s performance generally as a teacher and his being named Teacher of the Year at Swofford for are admitted. 12. The allegations of the first sentence of Paragraph 12 related to Cash s administration of a three-part final exam are admitted. The allegations of the second sentence of Paragraph 12 are denied as stated. The District states that the assertions of the second sentence may reflect the initial intention regarding determination of the students final grades for the class; however, the District further states that Cash s own conduct in regard to his administration of the final exam, particularly his mishandling of the alleged student cheating, ultimately caused the School and District administrators to seek a reasonable resolution to the mishandled situation so that the students would be treated fairly and equitably regarding the final exam grade. 13. The allegations of the first sentence of Paragraph 13 concerning the date Cash administered the first part of the final exam are admitted. Regarding the remaining allegations of Paragraph 13 asserting what Cash noticed concerning two students, describing his response to what he noticed, what one student asked of Cash, and what Cash exclaimed in response, the District is without information sufficient to form a belief as to the truth or falsity of said allegations and, therefore, denies them. 14. The allegations of Paragraph 14 are denied for lack of information, knowledge, or belief. The District further states that Cash may have believed that the students cheated on the exam, but his response to that belief by arbitrarily assigning the students a score of 50 on that portion of the exam, while taking no action or steps to investigate or confirm his belief, or even to properly notify the students, their parents, or his supervisors of his belief, was contrary to expected and normal teacher action or response in such matters and, ultimately, was unprofessional. 4

5 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 5 of The District admits that Cash arbitrarily decided to give both students a 50 numerical score. For a further response, see Paragraph 14 above. 16. The District denies the allegations contained in Paragraph 16 of the Complaint as stated. The District states that when the parents of the students whom Cash believed were cheating learned of the grades he had assigned the students on the final exam, the parents of both students requested a meeting with Cash and School personnel. 17. Denied as stated. The District states that during the meeting the parents objected to the grades that Cash had assigned, as well as the fact they had not been informed that Cash believed their children had cheated. The District states further that the parents were, understandably, upset with Cash s handling of the matter, about which Scott Simpkins (Director of Swofford) had limited information regarding the details, since Cash had not properly informed him of the same. Defendant denies the allegations regarding what Simpkins said to the parents and the parents conduct, to the extent that it is inconsistent with the above statement. The District denies that the parents were escorted off the school s property by the School Resource Officer. 18. Denied as stated. The District states that following what Cash believed was a cheating incident, which he mishandled, Cash had some contact with Scott Simpkins, but had no contact with Ron Garner or Scott Mercer, Superintendent of District Two, until August 3, 2015, subsequent to Cash s decision on July 23, 2015, to resign his employment with the District. 19. Denied and denied as stated. The School, with the concurrence of the District, made the decision that a retest of the first part of the exam was necessary because of Cash s mishandling of what he believed to be an incident of cheating. The District states further 5

6 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 6 of 15 that the retest which Cash prepared, which was arbitrarily and uncharacteristically timed, was designed in such a way that the students were likely to fail the retest, which is exactly what happened. The District denies the allegations of the second sentence of Paragraph 19 asserting that Cash was assured by Stephanie Mathis, who is the Coordinator of Secondary Curriculum and Administrative Services, not Associate Superintendent, that the grade received on the retest would be the final grade for that portion of the exam. Even if that allegation were true, which the District denies, once Cash crafted a retest so as to set the students up for failure, the grades on the retest could not be and were not treated as final. 20. Denied as stated. On the date of the retest, July 7, 2015, one of the students failed to appear because his mother was leery about what had happened regarding Cash s handling of the alleged cheating incident and whether her child would be treated fairly by Cash in the administration of the retest. The other student, who was completely unaware that the retest would be timed, did take the retest and obtained a 25 numerical score, evidence that Cash had designed the retest to result in failure. 21. The District admits that teachers are to record students final grades in a web-based student information system known as PowerSchool. The District states that PowerSchool may be used by authorized persons to generate a transcript for a student. The District admits that each teacher, including Cash, is given a login to access the information system. The District is without information to form a belief as to the truth or falsity of the allegation that Cash entered all the final grades into PowerSchool for all his 2015 Spring semester classes and therefore denies the same, but states further that no teacher, including Cash, has the authority or ability to determine final grades without review by District and School administrators when circumstances warrant such review, as in this case. 6

7 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 7 of Denied as stated. The District states that on July 23, 2015, which is the day Cash resigned from employment, Cash learned from, Mr. Simpkins, that the final grades of the students had been re-calculated because of Cash s mishandling of the alleged cheating incident and his preparing of a retest designed to result in the students failure. Given Cash s conduct and behavior, particularly in his designing of the retest, the administration concluded that, in fairness to the students, the grades on the first part of the three-part final exam would be omitted, and the grade on the final exam would be determined by averaging the scores on the second two parts of the exam. This redetermination, made in fairness to the students, resulted in a final average of 85 for one student and an 82 for the other student. 23. The allegations of Paragraph 23 are admitted. The District states further that a score of 85 is the lowest numerical score one can receive in a college preparatory class to obtain a B as the final letter grade. 24. The allegations of Paragraph 24 are denied. The District states that while Cash resigned on July 23, 2015, his access to PowerSchool and other employment related accounts was not terminated until August 3, 2015, after two superintendents met with Cash and asked him to reconsider his decision to resign, which Cash chose not to do. 25. Denied and denied as stated. When Cash inquired of the Mr. Simpkins, regarding the redetermination of the students final grades, Mr. Simpkins advised Cash that because of his mishandling of the entire matter, Simpkins along with District administration were compelled to re-calculate the grades, in the interest of fairness and equity to the students. 26. Denied as stated. The District states that Cash filed a complaint against the District with the South Carolina Department of Education concerning what he believed was wrong or improper about the decisions of the School and the District regarding student grading 7

8 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 8 of 15 in this matter. The complaint has been investigated by Mr. Joel Griggs of the State Department, who feels that the District has cooperated fully in the investigation. The District states further that it has been informed by Mr. Griggs that Cash s complaint against the District has been dismissed for lack of evidence. 27. The District is without sufficient information to form a belief as to the truth or falsity of the allegation as to why Cash decided to resign and, therefore, denies that allegation. The District states that neither Cash nor any other person employed by the District engaged in criminal conduct regarding the re-calculation of the grades of the students, necessitated by Cash s mishandling of the entire matter. The remaining allegations of Paragraph 27 are denied as stated. The District states that Drs. Garner and Mercer requested Cash to meet with them on August 3, 2015, in separate meetings to ask that Cash reconsider his decision to resign. It later was discovered that on August 2, 2015, Cash had already announced to his fellow teachers in an that he had resigned. The remaining allegations of Paragraph 27 are denied. 28. The District denies the allegation contained in Paragraph 28 of the Complaint, specifically denying that Cash was constructively discharged when he voluntarily chose to resign, and further specifically denying that the District asked or required Cash to violate a criminal law. The District denies the allegations of the second sentence of Paragraph The District incorporates in this Paragraph its responses to Paragraphs 1-28 of the Complaint as if fully set forth in this Paragraph. 30. Paragraph 30 of the Complaint contains a legal conclusion to which no response is required, but the District states that the statute cited in Paragraph 30 is inapplicable to 8

9 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 9 of 15 the present situation because no one has falsified or altered a transcript, diploma, or GED in this matter. 31. Paragraph 31 contains a legal conclusion as to which no response is required, but the District states that the statute cited in Paragraph 31 is inapplicable to the present case. 32. Denied and denied as stated. The District states that once the School and District administration re-calculated the grades in fairness to the students, the now-corrected grades were reported by Mr. Simpkins to the Principal of Landrum High School, where the students are enrolled, who, as Principal, on July 8, 2015, stored the corrected grades in PowerSchool. The District further states that this process and action was in all ways appropriate and proper. 33. Denied. The District states that no one employed by the District altered the transcripts of the two students in question. 34. Denied. The District states that Cash was not constructively discharged (forced to quit) regarding this matter. Cash chose to quit of his own free will. The District further states that Cash had previously indicated he planned to retire in December 2015 anyway. The District states further that Cash was not engaged in actions protected by a clear mandate of public policy, nor that he has suffered damages in any manner by virtue of his own decision to terminate his own employment. 35. The District incorporates in this Paragraph its responses to Paragraphs 1-34 of the Complaint as if fully set forth in this Paragraph. 36. The District denies that it is the policy of the District or the School to vest total grading authority of students in teachers. It specifically states that the grades assigned by 9

10 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 10 of 15 teachers are subject to review by administration when circumstances so warrant, as was the case here. 37. The District specifically denies that a teacher s assignment of a letter grade is a symbolic communication intended to send a specific message to a student and as such is entitled to First Amendment protection. No such First Amendment protection has been recognized in any court to which the District Court must follow. 38. The District denies that any School or District official altered two students grades in violation of state law or that the re-calculation of the grades is in any way associated with speech that touches on a matter of public concern. 39. The District denies that Cash spoke out against grade altering, or that he spoke out because he sought to address the public school system s implementation of an illegal act, which is denied, or its resulting effect on public education, which also is denied. 40. Denied. The District states that the State s public education system has a very legitimate interest in granting students letter grades such that they properly reflect actual performance and fair treatment by teachers in determining grades. 41. The allegations of Paragraph 41 are denied. The District states that it did not take away Cash s ability to assign grades, subject to review, or that it required him to acquiesce in violation of law to retain his employment. The District further denies that it infringed in any way on Cash s First Amendment rights. 42. The District denies that it or Defendant Garner in any way has caused Cash to suffer irreparable harm resulting from any violation of law, or that Cash is entitled to the relief that he requested in Paragraph

11 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 11 of The District incorporates in this Paragraph its responses to Paragraphs 1-42 of the Complaint as if fully set forth in this Paragraph. 44. Denied as stated. The District states that Cash may have accrued a number of days of sick leave, but states that under District policy he was not entitled to payment for accrued sick leave upon resignation. 45. The District admits that it employed Cash and that his payment of wages was covered by state law, but the District denies that it violated state law regarding the payment of Cash s wages. 46. The District is without information sufficient as to form a belief as to the truth or falsity of what Cash s understanding and agreement was regarding his employment under applicable law. 47. The allegations of Paragraph 47 constitute legal conclusions to which no response is required. The District further states that it in no way has failed to pay Cash wages under the S.C. Payment of Wages Act. 48. See response to Paragraph The allegations of Paragraph 49 constitute a legal conclusion to which no response is required. The District denies that it has withheld or diverted any portion of Cash s wages. 50. The District denies that any of its policies are unlawful or that it engaged in unlawful practices in regard to the payment of wages to Cash, or that he has been deprived of compensation due and owing to him, or that it has in any way violated the Payment of Wages Act. 11

12 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 12 of The District denies that Cash has suffered any losses or has been deprived of any compensation to which he is entitled, and further denies that Cash is entitled to monetary damages in any amount for any alleged unpaid wages, costs or attorneys fees, which the District denies Cash has any entitlement to. The District admits that Cash prays for the relief described in the WHEREFORE paragraph of the Complaint, but denies that Cash is entitled to recover for any alleged damages sought or to any relief whatsoever. The District denies each and every allegation set forth in the Complaint not specifically admitted herein. The District admits that Cash demands a jury trial, but denies that he is entitled to one. ALL THE DISTRICT S DEFENSES Without admitting any allegations asserted in the Complaint, the District interposes the following defenses. Nothing stated in any of the defenses constitutes a concession that the District bears any burden of proof on any issue on which it would not otherwise bear such burden. FIRST DEFENSE The Complaint s Second Cause of Action (Violation of First Amendment Rights, 42 U.S.C. 1983) fails to state a claim upon which relief can be granted, in that the right of a public school teacher to assign student grades without review by administrators has never been recognized in law. Therefore, this cause of action should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). 12

13 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 13 of 15 SECOND DEFENSE The Complaint s First Cause of Action (Wrongful Termination in Violation of Public Policy) fails to state a claim upon which relief can be granted, in that such a cause of action has only been recognized in cases where the employer requires the employee to violate a law or where the reason for the employee s termination is itself a violation of a criminal law, neither of which Cash alleges. THIRD DEFENSE The District is immune from liability under the South Carolina Tort Claims Act, S.C. Code Ann (5) as to the Complaint s First Cause of Action (Wrongful Termination in Violation of Public Policy) because Cash s alleged losses, damages, or injuries, if any, resulted from the exercise of discretion or judgment by the governmental entity or its employees and the District was not grossly negligent in exercising that discretion. FOURTH DEFENSE Cash s claims are barred in whole or in part, or any recovery thereon should be reduced, because of his neglect and fault in connection with the matters alleged. FIFTH DEFENSE All actions taken by the District with respect to Cash were lawful, proper, reasonable, and appropriate. SIXTH DEFENSE Cash has not suffered any legally cognizable damages. SEVENTH DEFENSE To the extent that Cash has failed to reasonably mitigate his alleged damages, his claims for damages are barred in whole or in part. 13

14 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 14 of 15 EIGHTH DEFENSE The District is absolutely immune from liability for punitive damages. NINTH DEFENSE The District avers that this action is frivolous, unreasonable, and groundless, and accordingly, it is entitled to recover its attorneys fees and other costs associated with the defense of this action. TENTH DEFENSE The District reserves the right to assert other affirmative defenses as they become evident through discovery or investigation. DEFENDANT S REQUESTS FOR ATTORNEY S FEES AND OTHER COSTS The District requests that the Court upon dismissing the Complaint before or after trial, or through other disposition, order Plaintiff Cash to pay all of the District s reasonable attorney s fees, litigation expenses, and costs, upon the grounds that Cash s claims are completely meritless and without foundation. WHEREFORE, the District respectfully prays that Plaintiff Cash take nothing by his suit, that the District recovers its costs, fees, and expenses herein, and for such other and further relief, legal and equitable, to which it may show itself justly entitled. SEE SIGNATURE BLOCK NEXT PAGE 14

15 7:16-cv BHH Date Filed 03/01/16 Entry Number 6 Page 15 of 15 Respectfully submitted, DUFF, WHITE & TURNER, LLC By: s/david T. Duff David T. Duff (Fed I.D. No. 623) David N. Lyon (Fed. I.D. No ) P.O. Box 1486 Columbia, SC Ph. (803) Fax (803) dduff@dwtlawfirm.com dlyon@dwtlawfirm.com Attorneys for Spartanburg County School District One March 1, 2016 Columbia, South Carolina 15

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