UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1303
CHARLES S. MOORE,
Plaintiff - Appellant,
versus
GREENWOOD SCHOOL DISTRICT NO. 52; BUTCH COBB;
ANDY OWINGS; MICHAEL DOOLITTLE; JOANNE
CAMPBELL, in their individual and official
capacities,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., District
Judge. (CA-01336-8)
Submitted: June 21, 2006 Decided: August 18, 2006
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Charles S. Moore, Appellant Pro Se. Andrea Eaton White, DUFF,
DUBBERLY, TURNER, WHITE & BOYKIN, L.L.C., Columbia, South Carolina;
Andrew Elliott Haselden, William George Besley, HOWSER, NEWMAN &
BESLEY, L.L.C., Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles S. Moore appeals the district court’s order
dismissing his complaint and denying his motion to alter or amend
judgment pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure. We affirm in part and vacate and remand in part.
Moore, who was employed by the Greenwood School District
(“Greenwood”) from 1992 through 2002 as a basketball coach and math
teacher at Ninety Six High School, alleges he was relieved of his
coaching duties in violation of Title IX of the Education
Amendments Act of 1972, 20 U.S.C. §§ 1681-1688 (2000) (“Title
IX”).1 Moore sued Greenwood and Michael Doolittle, the athletic
director at Ninety Six High School; Andy Owings, a member of the
school board; Joanne Campbell, principal of Ninety Six High School;
and Butch Cobb, chairman of the school board. The individual
Defendants were sued in their official and individual capacities.
According to Moore, in May 2000, parents complained to
the Office of Civil Rights (“OCR”) of the United States Department
of Education that Greenwood discriminated against female athletes
in the interscholastic athletic program in the areas of locker
1
Title IX provides in pertinent part:
No person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial
assistance.
20 U.S.C. § 1681 (2000).
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rooms, practice, competitive facilities, equipment, supplies,
coaching, and scheduling of games and practice times. Moore stated
his belief that the women’s athletic program was intentionally
discriminated against and that Greenwood was aware of his beliefs
and his support for the women’s softball and basketball coach. The
OCR interviewed Moore and ultimately concluded that Greenwood did
not provide “equivalent benefits, opportunities, and treatment to
female students at Ninety Six High School.” Moore alleges his
coaching contract was not renewed based on these comments and his
participation in the OCR investigation.
Moore then filed his own complaint with the OCR. After
an investigation, the OCR found Moore participated in protected
activity; the Defendants had knowledge of his protected activity;
the Defendants took adverse action against Moore when his coaching
contract was terminated; there was a connection between Moore’s
protected activity and the adverse action; and the Defendants
lacked a legitimate non-discriminatory reason for their actions.
Thus, the OCR determined Greenwood retaliated against Moore in
violation of Title IX.
Almost two years later, Moore filed his lawsuit, alleging
the following causes of action: a Title IX retaliation claim
against Greenwood; a First Amendment free speech claim against
Greenwood and the individual Defendants, in their official and
individual capacities, pursuant to 42 U.S.C. § 1983 (2000); a Fifth
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and Fourteenth Amendment procedural due process claim against
Greenwood, Cobb, and Owings, pursuant to § 1983; a Fifth and
Fourteenth Amendment substantive due process claim against
Greenwood, Cobb and Owings, pursuant to § 1983; and various state
law claims. The district court, after reviewing Defendants’
objections to the magistrate judge’s report and recommendation,
dismissed Moore’s complaint in its entirety and denied
reconsideration of that order. Moore timely appealed.
On appeal, Moore attacks only: (1) the district court’s
dismissal of his Title IX retaliation claim as untimely filed; or
alternatively, because Title IX affords no private right of action
for a claim of retaliation; and (2) the district court’s dismissal
of his First Amendment retaliation claim against the individual
defendants based on qualified immunity, or alternatively, because
Moore did not allege sufficient facts to state a claim for
supervisory liability under § 1983. Our review is therefore
limited to these issues. See 4th Cir. R. 34(b) (“The Court will
limit its review to the issues raised in the informal brief.”). We
affirm the district court’s order as to all other claims because
Moore has not raised those issues on appeal.
Moore asserts that Title IX provides a private right of
action for retaliation. The parties agree that under Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167 (2005), in which a school
district employee who claimed the school district retaliated
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against him for reporting Title IX violations was entitled to file
a private cause of action against the district, Moore could have a
private right of action for retaliation under Title IX. Jackson,
however, did not address the statute of limitations that should be
applied to such claims.
Moore argues that the applicable statute of limitations
in Title IX cases should be the general state statute of
limitations for personal injury actions, which is two years in
South Carolina. Although this Court has not yet ruled on the
issue, we have held that claims brought under Section 504 of the
Rehabilitation Act are governed by the limitations periods set
forth in state laws prohibiting discrimination on the basis of
disability. See Wolsky v. Med. Coll. of Hampton Roads, 1 F.3d 222,
225 (4th Cir. 1993) (holding that the Virginia Rights of Persons
with Disabilities Act was the state statute most analogous to
Section 504, and continuing to apply the one-year limitations
period in that Act to dismiss a complaint). Similarly, in South
Carolina, it is an unlawful employment practice for an employer “to
fail or refuse to hire, bar, or discharge from employment or
otherwise discriminate against an individual with respect to the
individual’s compensation or terms, conditions, or privileges of
employment because of the individual’s . . . sex, age, national
origin, or disability.” S.C. Code. Ann. § 1-13- 80(A)(1) (2005)
(the “State Human Affairs Law” or “SCHAL”). Thus, the same
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standard for evaluating claims under the State Human Affairs Law is
used for evaluating claims under federal anti-discrimination laws.
See Taylor v. Cummins Atlantic, Inc., 852 F. Supp. 1279, 1283 n.2
(D.S.C. 1994) (citing Orr v. Clyburn, 290 S.E.2d 804, 806 (S.C.
1982) (holding that Title VII cases “are certainly persuasive if
not controlling in construing the [SCHAL]”). We conclude that the
State Human Affairs Law is the more analogous law in this case, and
the district court correctly applied SCHAL’s one-year statute of
limitations instead of the two-year limitations period applicable
to personal injury actions. We therefore affirm the district
court’s order on that issue.
Moore does not challenge the district court’s dismissal
of his First Amendment retaliation claim against Greenwood or the
individual Defendants in their official capacities on the basis of
Eleventh Amendment immunity. Rather, Moore asks this Court to rule
that the individual Defendants in their individual capacities are
not entitled to qualified immunity. See Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). Moore alleges that he made statements
concerning discrimination and funding issues that were of public
concern, and that the Defendants retaliated against him based on
those statements.
A district court’s determination that the individual
Defendants are entitled to qualified immunity is reviewed de novo,
viewing the evidence in the light most favorable to Moore. See
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Gomez v. Atkins, 296 F.3d 253, 260-61 (4th Cir. 2002). In ruling
on a defense of qualified immunity, a court must (1) identify the
specific right allegedly violated; (2) determine whether at the
time of the alleged violation the right was clearly established;
and (3) if so, determine whether a reasonable person in the
official’s position would have known that his action would violate
the right. Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992);
see, e.g., Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004)
(holding that an assistant principal had a First Amendment right to
protest racially discriminatory practices at her school without
fear of retaliation).
Further, we reject any reliance upon the heightened
pleading standard articulated in Dunbar Corp. v. Lindsey, 905 F.2d
754, 763-64 (4th Cir. 1990), to conclude that Moore’s free speech
claim failed to state a cause of action under § 1983. Subsequent
to Dunbar, the Supreme Court unanimously rejected imposition of a
heightened pleading standard. See Swierkiewicz v. Sorema N.A., 534
U.S. 506 (2002). While the context of the decision was
consideration of the propriety of a heightened pleading in an
employment discrimination case, the Court pronounced that, with
limited exceptions not here relevant, the “simplified pleading
standard [of Federal Rule of Civil Procedure 8(a)] applies to all
civil actions.” Id. at 513. Applying Swierkiewicz here, we find
Moore pled sufficient facts to survive a motion to dismiss.
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Moore finally contends that the individual Defendants
Cobb, Owings and Campbell should be held liable for Doolittle’s
actions (with respect to his First Amendment retaliation claim) on
the basis of supervisory liability. According to Moore, the three
“supervisory” individual Defendants (1) were aware of his role as
a witness in the Title IX investigation; (2) were aware of his
statements to the OCR; and (3) were aware of Doolittle’s
retaliatory refusal to renew Moore’s coaching contract for speaking
on such issues. Moreover, Moore claims that the school board and
the supervisory individual Defendants acted personally to uphold
and ratify the alleged wrongful termination.
Supervisory officials may be held liable in certain
circumstances for the constitutional injuries inflicted by their
subordinates. See Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.
1984). We have articulated a three-part test to establish
supervisory liability under § 1983: “(1) that the supervisor had
actual or constructive knowledge that his subordinate was engaged
in conduct that posed ‘a pervasive and unreasonable risk' of
constitutional injury to citizens like the plaintiff; (2) that the
supervisor’s response to that knowledge was so inadequate as to
show ‘deliberate indifference to or tacit authorization of the
alleged offensive practices,’; and (3) that there was an
‘affirmative causal link’ between the supervisor’s inaction and the
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particular constitutional injury suffered by the plaintiff.” Shaw
v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations omitted).
In Randall v. Prince George’s County, 302 F.3d 188, 206
(4th Cir. 2002), this Court concluded that, “[u]nder the first
prong of Shaw, the conduct engaged in by the supervisor's
subordinates must be ‘pervasive,’ meaning that the ‘conduct is
widespread, or at least has been used on several different
occasions.’” Furthermore, in establishing “deliberate
indifference” under Shaw’s second prong, a plaintiff “[o]rdinarily
. . . cannot satisfy his burden of proof by pointing to a single
incident or isolated incidents . . . for a supervisor cannot be
expected . . . to guard against the deliberate criminal acts of his
properly trained employees when he has no basis upon which to
anticipate the misconduct.” Id. (quoting Slakan, 737 F.2d at 373).
The crux of Defendants’ argument is that the single alleged act of
individual Defendant Doolittle was insufficient, as a matter of
law, to meet the “widespread or pervasive” test or to demonstrate
supervisory deliberate indifference thereto.
We agree with the Defendants. The single incident of
upholding and ratifying Defendant Doolittle’s decision not to renew
Moore’s coaching contract is insufficient as a matter of law to
establish supervisory liability. Moore has not alleged that it was
customary for Defendant Doolittle to restrict the First Amendment
rights of the coaches or teachers, nor has Moore alleged even a
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single prior instance by Defendant Doolittle or any other official
at the high school analogous to his present claim.
Accordingly, we affirm the district court’s dismissal of
Moore’s Title IX claim against Greenwood as untimely and the
district court’s dismissal of Moore’s supervisory liability claim
against Campbell, Cobb, and Owings. We vacate the district court’s
order and remand for further consideration of Moore’s First
Amendment claim against the individual Defendants.2 We affirm the
district court’s orders in all other respects. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
2
By this disposition, we indicate no view as to the ultimate
disposition of Moore’s First Amendment claim. We accordingly leave
the course of proceedings on remand to the sound discretion of the
district court.
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