Tuesday, October 21, 2014

SC Administrative Law Court Decisions

CAPTION:
Dr. Robin Bowers vs College of Charleston

AGENCY:
College of Charleston

PARTIES:
Appellant

Respondent
 
DOCKET NUMBER:
08-ALJ-30-0092-AP

APPEARANCES:
APPEARANCES: Gregory S. Forman, Esquire, for Appellant
Wilbur E. Johnson, Esquire, for Respondent
 

ORDERS:

This matter is before the Administrative Law Court (ALC or Court) pursuant to the appeal of Dr. Robin Bowers (Bowers or Appellant), from a decision of the Board of Trustees of the Respondent, College of Charleston (College) dated January 28, 2008, which terminated Bowers’ employment as a professor of psychology at the College.  For the following reasons, the Respondent’s decision is affirmed. 

 

STATEMENT OF THE CASE

            The Appellant Bowers was a tenured professor of psychology at the College.  In the fall of 2006, Bowers taught a course in Advanced General Psychology.  In January 2007, Raven Ray, a student in that course, informed an official in the College’s Student Services office that she and Bowers had engaged in a sexual relationship during the fall 2006 semester.  The official, Jane Corbin, interviewed Ray and then referred her to the College’s Director of Human Relations and Minority Affairs, Denise Mitchell.  Ms. Mitchell also interviewed Ray and on January 19, 2007, at the request of Ms. Mitchell, Ray gave a sworn statement to College officials.  Thereafter, on January 26, 2007, Ray filed a formal complaint of sexual harassment with Ms. Mitchell’s office.  Mitchell began an investigation of Ray’s allegations on the basis of the complaint.  She met with Bowers, informed Bowers of the complaint against him and requested that he provide any information which might tend to disprove the charges.  Bowers submitted a telephone bill showing text messages from Ray, and a copy of a test Ray had taken in his class.  After receiving information from both parties, Mitchell decided to forward the complaint and a report of her investigation to the College’s Provost and Executive Vice President for Academic Affairs, Elise Jorgens in late February, 2007.  Upon receiving Mitchell’s report, Jorgens began her own review of the complaint.  As part of that review, she corresponded with Bowers and reviewed documents and information provided by both parties.  By letter dated May 23, 2007, Jorgens informed Bowers that he was suspended from his employment and that she intended to seek his dismissal.  The letter detailed prior admonitions by Jorgens to Bowers in 2005 and 2006 regarding inappropriate communications, informed Bowers of some of the evidence of misconduct involving Ray’s complaint, referred to the portions of the Faculty Administration Manual dealing with termination of tenured faculty members, and advised Bowers of his appeal rights under the College’s Faculty Grievance Procedure. 

            Pursuant to the College’s grievance procedures, Bowers filed a notice of grievance and appeal with the Chair of the College’s Faculty Hearing Committee on September 10, 2007.  On September 26, 2007, the Committee held a pre-hearing conference in which counsel for both the College and Bowers participated.  The hearing before the Committee was held on October 3, 10, 15, 16 and 31, 2007.  Following its review of the testimony and evidence presented in the case, the Faculty Hearing Committee issued a recommendation on December 3, 2007, that Bowers’ employment be terminated for conduct unbecoming a faculty member, sexual harassment, and related inappropriate contact between a faculty member and a student, in violation of College policy.  The Committee did not find clear and convincing evidence that there was a consensual sexual relationship between Ray and Bowers while Ray was a student in Bowers’ class.

            Following the issuance of the Committee’s recommendation, the College’s President, P. George Benson, reviewed the record of the proceedings.  On December 10, 2007, Dr. Benson issued a letter in which he concurred with the Committee’s recommendation and informed Bowers that his employment with the College was terminated.  Bowers appealed the President’s decision to the College’s Board of Trustees on December 19, 2007.  The Board of Trustees reviewed the record of the proceedings and issued a decision on January 28, 2008, upholding the President’s decision to terminate Bowers.  Thereafter, Bowers timely filed an appeal with this Court.

 

ISSUES

            1.         Did the termination procedure employed by the College violate the Appellant’s right to due process?

            2.         Did the Faculty Hearing Committee’s admission and consideration of certain items of evidence constitute an error of law, an abuse of discretion, or a denial of Appellant’s right to due process?

            3.         Was there substantial evidence to support the College’s decision to terminate Appellant’s employment?

 

STANDARD OF REVIEW

            This case is before the Administrative Law Court pursuant to S.C. Code Ann. § 1-23-600(D) (Supp. 2008).  In cases arising from employee grievances, the Administrative Law Judge sits in an appellate capacity under the APA rather than as an independent finder of fact.  In South Carolina, the provisions of the APA -- specifically S.C. Code Ann. § 1-23-600(E) (Supp. 2008), which incorporates the provisions of S.C. Code Ann. §1-23-380(5) (Supp. 2008) -- govern the circumstances in which an appellate body may reverse or modify an agency decision.  The latter section sets forth:

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact.  The court may affirm the decision of the agency or remand the case for further proceedings.  The court may reverse or modify the decision [of the agency] if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

      (a)        in violation of constitutional or statutory provisions;

      (b)        in excess of the statutory authority of the agency;

      (c)        made upon unlawful procedure;

      (d)       affected by other error of law;

(e)        clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f)        arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

S.C. Code Ann. § 1-23-380(5) (Supp. 2008).

            The findings of the agency are presumed correct and must be affirmed if supported by substantial evidence.  Substantial evidence is something less than the weight of the evidence.  It is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the administrative agency reached.  Jones v. Georgia-Pacific Corp., 355 S.C. 413, 417, 586 S.E.2d 111, 113 (2003); Anderson v. Baptist Medical Center, 343 S.C. 487, 492, 541 S.E.2d 526, 528 (2001); Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981).  The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.  DuRant v. S.C. Dep’t of Health and Envtl. Control, 361 S.C. 416, 420, 604 S.E.2d 704, 707 (Ct. App. 2004); Grant v. S.C. Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995); Palmetto Alliance, Inc. v. S.C. Pub. Serv. Comm., 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984).

An abuse of discretion occurs when an administrative agency’s ruling is based upon an error of law, such as application of the wrong legal principle; or, when based upon factual conclusions, the ruling is without evidentiary support; or, when the trial court is vested with discretion, but the ruling reveals no discretion was exercised; or, when the ruling does not fall within the range of permissible decisions applicable in a particular case, such that it may be deemed arbitrary and capricious.  State v. Allen, 370 S.C. 88, 94, 634 S.E.2d 653, 656 (2006) (application of standard to circuit court) (citing Fontaine v. Peitz, 291 S.C. 536, 539, 354 S.E.2d 565, 566 (1987).  A decision is arbitrary if no rational basis for the conclusion exists, or when it is based on one’s will and not upon any course of reasoning and exercise of judgment.  A decision may also be arbitrary if it is made at pleasure without adequate determining principles or is governed by no fixed rules or standards. Converse Power Corp v. S.C. Dep’t of Health and Envtl. Control, 350 S.C. 39, 564 S.E.2d 341 (Ct. App. 2002).

 

DISCUSSION

Hearing Procedure

            Bowers first argues that the procedures contained in the College’s Faculty Administration Manual and employed by the Faculty Hearing Committee in his proceeding violated his right to due process.  The College’s grievance procedures are authorized by S.C. Code Ann. § 8-17-380(b), which, in relevant part, provides that a grievance procedure promulgated by an institution of higher education must include a hearing “before an individual or committee designated for such purposes, at which the employee shall have the right to be represented by counsel.”  Bowers contends that the College’s procedures, which limit counsel’s participation to providing advice to any party upon request and addressing procedural issues, and which provide that counsel may not question witnesses or make opening statements or closing arguments, denied him the right to be represented by counsel as required by Section 8-17-380(b) as well as his right to due process.

            First, nowhere in the record of the proceedings is there any evidence that Bowers or his counsel ever raised any objection to the limitation on counsel’s participation in the hearing, although this limitation was specified in the Faculty Administration Manual.  Prior to the hearing, the Committee conducted a lengthy pre-hearing conference at which the rules and procedures to be employed at the hearing, the proposed witnesses, and the exhibit list were discussed.  Both Bowers’ counsel and the College’s counsel actively participated in this conference and raised issues and objections concerning the procedures, witnesses, and exhibits.  The record reflects that at no time did Bowers or his counsel raise any issue concerning his counsel’s participation at the hearing.  Since this issue was not raised before the Committee, it is not preserved for appellate review by this Court.  Lee County Sch. Dist. Bd. of Trustees v. MLD Charter School Academy Planning Committee, 371 S.C. 561, 641 S.E.2d 24 (2007); Brown v. S.C. Dep’t of Health and Envtl. Control, 348 S.C. 507, 560 S.E.2d 410 (2002).

            Even assuming that this issue had been properly preserved for review, I do not find that the procedures utilized by the Committee violated Bowers’ right to due process or Section 8-17-380(b).  A tenured professor has a property interest in continued employment which is safeguarded by due process. Ross v. Medical Univ. of S.C., 328 S.C. 51, 492 S.E.2d 62 (1997).   The requirements of procedural due process which apply in a hearing affecting an individual’s property or liberty interest generally include adequate notice, the opportunity to be heard at a meaningful time and in a meaningful manner, the right to introduce evidence, the right to confront and cross-examine witnesses whose testimony is used to establish facts, and the right to judicial review.  Sloan v. S.C. Bd. of Physical Therapy Exam’rs, 370 S.C. 452, 636 S.E.2d 598 (2006).  See also Moore v. Moore, 376 S.C. 467, 657 S.E.2d 743 (2008) (procedural due process requires adequate notice; adequate opportunity for a hearing; the right to introduce evidence; and the right to confront and cross-examine witnesses). However, there is no constitutional requirement that specific procedures must be followed by the Committee during its hearings.  Sloan, 370 S.C. at 484, 636 S.E.2d at 615.  Due process is flexible and calls for such procedural protections as the particular situation demands.  Id. 

            Having reviewed the record, the Court finds that Bowers was not denied due process and was afforded the right to be represented by counsel.  Bowers was provided with advance notice of the charges made against him and of the hearing; he was advised of his right to be represented by counsel; he retained counsel to represent him in the proceedings; his counsel participated fully in the pre-hearing conference and advised him during the hearing; he was given the opportunity to present evidence, to cross-examine witnesses, and respond to all issues raised during the hearing; he fully participated at all stages of the hearing process and vigorously advocated his position; he received the Committee’s written order outlining its decision and reasoning; he received review of the Committee’s decision by the College’s President and Board of Trustees; and, he availed himself of the appeals procedure before this Court.  Accordingly, Appellant’s first contention is without merit.

 

Admission and Consideration of Evidence by the Committee

            1.         Documentary Evidence

            Bowers next contends that the Committee’s admission of certain items of evidence into the record—specifically Ray’s initial statements to Jane Corbin, her January 19, 2007 sexual harassment complaint, text messages between Ray and Bowers, and Ray’s sworn statement—constitutes an error of law and abuse of discretion.  Bowers further contends that he was denied the right to confront and cross-examine Ray at the Committee hearing and thus was denied due process. 

            First, with respect to the admission of the documentary evidence into the record, Appellant failed to raise any objection to the admission of the statements to Jane Corbin, the sexual harassment complaint or the text messages, either at the pre-hearing conference or during the hearing.  Therefore, this issue is not properly preserved for appellate review.  Lee County, supra. Moreover, pursuant to the College’s grievance procedure, the Committee was not bound by the rules of evidence.  See Record at 972. Accordingly, the Committee acted within its discretion in admitting these items into the record.

            Second, with respect to the sworn statement of Ray and Appellant’s contention that his due process rights were violated through his inability to cross-examine Ray, Appellant and his counsel were given the opportunity to consent to Ray’s appearing at the hearing to testify if her counsel was present as an observer only.  Given the choice of having Ray testify with her attorney present, or having the sworn statement admitted into the record, Appellant and his counsel chose to have the hearing go forward without Ray’s testimony.  See Record at 427.  Thus, Appellant waived any objection to the admission into evidence of the sworn statement.

 Furthermore, “one cannot complain of a violation of due process if he has recourse to a constitutionally sufficient administrative procedure but merely declines or fails to take advantage of it.”  Zaman v. S.C. Bd. of Medical Exam’rs, 305 S.C. 281, 285, 408 S.E.2d 213, 215 (1991).  The record reveals that Ray was available for examination at the Committee hearing, but agreed to testify and be cross-examined only if her attorney was present.  Although the Committee made it clear that the attorney would not be allowed to participate in the proceeding, but would merely be a spectator, Bowers and his counsel refused to allow the attorney to be present during Ray’s testimony.  Since the Committee had no power to compel Ray to testify, she did not appear at the hearing.  Thus, Bowers’ inability to cross-examine Ray was the result of his own conduct and does not constitute a denial of due process. 

Finally, “even if a party is not given the opportunity to confront witnesses, due process is not violated if there has been a meaningful opportunity to be heard.”  S.C. Dep’t of Social Services v. Holden, 319 S.C. 72, 459 S.E.2d 846, 849-50 (1995).  The record in this case reflects that Appellant took full advantage of his opportunity to present his side of the case, disputing Ray’s allegations at great length.  Accordingly, Appellant’s due process rights were not violated. 

            2.         Evidence of Alcohol Consumption

            Appellant next contends that the Committee erred in relying upon testimony that he was complicit in Ray’s excessive consumption of alcohol, since this particular charge was not listed in the College’s complaint against him.  In the May 23, 2007, letter from Provost Jorgens, Appellant was notified that his dismissal was being sought because he had “engaged in conduct unbecoming a member of [the College’s] faculty” and had “abused the power relationship that always exists between a faculty member and student.”  The letter further stated that the evidence for the decision “includes, but is not limited to” Ray’s complaint and sworn statement, Ms. Mitchell’s review and findings, a sworn affidavit from another student attesting to Appellant’s misconduct with Ray, cell phone records, and the song “Warmed X Warm: for Raven” on Appellant’s College website.  The letter further listed the categories of conduct which were considered adequate cause for the termination of tenure according to the Faculty Administration Manual,[1] and stated that Appellant’s conduct fell within several of those categories.  See Record at 23-25.  I find that Appellant was reasonably placed upon notice that all aspects of his conduct with Ray, including evidence of alcohol consumption in social settings, would be considered by the Committee. 

            Appellant further argues that the Committee’s reliance upon testimony relating to alcohol consumption was unsupported by substantial evidence and constituted an error of law and abuse of discretion, in that the College’s policy manual did not support disciplinary action based upon such actions.  Notably, the evidence in the record concerning Ray’s consumption of alcohol in Appellant’s presence was presented by the Appellant himself.  See Record at 445-49, 735-741. Furthermore, the grounds for termination of tenure, as listed in the Faculty Administration Manual, clearly state that one ground for termination of tenure for cause is “conduct unbecoming a faculty member.”  The Committee acted within its discretion in weighing the evidence and determining, based upon the testimony before it, that Appellant’s behavior with respect to Ray’s alcohol consumption constituted conduct unbecoming a faculty member and supported his termination for cause. 

Substantial Evidence

Finally, Appellant argues that the College’s decision to terminate him is unsupported by substantial evidence because there is no evidence that his communications or actions towards Ray met the definition of “sexual harassment” in the College’s policy manual.  Appellant specifically contends that there was insufficient evidence that his conduct was “unwelcome.”  First of all, Ray’s sworn statement contains numerous instances in which Ray claimed Appellant’s conduct was unwelcome.  As set forth above, Appellant and his counsel chose to have the hearing go forward without Ray’s testimony. 

Even if Ray’s sworn statement is not considered, substantial evidence exists in the record to support the College’s decision to terminate Bowers for conduct unbecoming a faculty member.  In fact, the Board of Trustees in its January 28, 2008 decision specifically noted that its disposition of Bowers’ appeal was “wholly independent of any material contained in Ms. Ray’s sworn deposition.”  Record at 7.

Most importantly, the poem or song “Warmed X Warm” posted on Bowers’ College website and specifically dedicated “To Raven” contains explicit and obvious sexual connotations. See Record at 1034.  Although Bowers presented witnesses who gave conflicting evidence as to the interpretation of the poem, the Committee found that the poem was sexual in nature and specifically directed at Ray.  This Court cannot re-weigh the facts and can only overturn the Committee’s factual findings if there is not substantial evidence in the record to support them.  See S.C. Code Ann. §1-23-380(5) (Supp. 2008).   I find that the posting of this poem on Bowers’ College website, which was available to be seen by members of the College of Charleston community, violated the College’s sexual harassment policy[2] and constitutes substantial evidence supporting the Board’s determination that Bowers’ employment should be terminated for conduct unbecoming a faculty member. 

Moreover, Bowers and other witnesses testified at the hearing that Bowers had engaged in sexual relationships with several College of Charleston students other than Ray.  One of those students, Kristal Cooper, even lived with Bowers and his daughter at their home for a time, beginning while she was a student in one of his classes.  The evidence of Bowers’ admitted propensity for engaging in sexual relationships with students, while not deemed necessary by the Committee or the Board in reaching their conclusions that Bowers had sexually harassed Ray, constitutes substantial evidence to support the College’s determination to dismiss him from employment for conduct unbecoming a faculty member. 

Finally, regardless of whether the text messages between Appellant and Ray indicate whether they were engaged in a sexual relationship, there is no doubt that numerous text communications between them occurred while Ray was a student in Appellant’s class, and that some of them contain sexual references.  See Record at 1035-1047; 1049-1113. These text messages also constitute substantial evidence to support the College’s determination to dismiss Appellant from employment for conduct unbecoming a faculty member. 

 

 

 

 

 

 

 

 

 

 

ORDER

            For all the foregoing reasons, the decision of the Respondent to terminate Appellant’s employment as a tenured professor is hereby AFFIRMED.  This Court’s Order of September 9, 2008, imposing a stay is hereby VACATED.

 

AND IT IS SO ORDERED.

 

 

                                                                        ____________________________________

                                                                        Marvin F. Kittrell

                                                                        Chief Administrative Law Judge

 

Columbia, South Carolina

June 8, 2009



[1] The categories listed in the Manual which were considered adequate cause for the termination of tenure were “incompetence, neglect of duty, immorality, dishonesty, including but not limited to plagiarism, falsification of academic credentials or vitae, conduct unbecoming a faculty member, convictions of violating the criminal laws of any state or the United States, willful and repeated violations of College rules, regulations or policies.”  Faculty/Administration Manual, Section IV.P (1)(d). 

[2] The relevant portion of the College’s sexual harassment policy provides that examples of protected status harassment include but are not limited to “[n]on-verbal conduct, such as display of sexually suggestive objects or pictures, leering, whistling, or obscene gestures; written or graphic material (including communications by computers) that defames or shows hostility or aversion toward an individual or group because of race, color, religion, gender, national origin, age or disability and is in the public spaces of the College’s premises, or that is circulated in and affects the College community via e-mail, Internet posting or otherwise.” Sexual Harassment Policy, Section (A)(6) (Record at 978).


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