Andrew HaLevi PHD v. Charleston County School

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Andrew HaLevi, Ph. D., Appellant,

v.

Charleston County School District, Respondent.

Appellate Case No. 2020-001460

Appeal From Charleston County
Bentley Price, Circuit Court Judge

Unpublished Opinion No. 2024-UP-041
Submitted October 2, 2023 – Filed January 31, 2024

AFFIRMED

Lucy Clark Sanders and Nancy Bloodgood, both of
Bloodgood & Sanders, LLC, of Mt. Pleasant, for
Appellant.

Eugene Hamilton Matthews, of Richardson Plowden &
Robinson, PA, of Columbia, for Respondent.

PER CURIAM: Andrew HaLevi (Dr. HaLevi) appeals the circuit court's grant of
summary judgment to Charleston County School District (the District) on his
claims of defamation, violation of due process, and breach of the covenant of good
faith and fair dealing. We affirm summary judgment.
FACTS/PROCEDURAL HISTORY

In 2009, the District hired Dr. HaLevi for the position of "Program Coordinator" at
Septima Clark Academy (Clark Academy). The District classified the job as an
"Assistant Principal Level 3 Grade 13 Step 16." On April 12, 2016, the District
sent Dr. HaLevi a letter wherein it characterized his position at Clark Academy as
"Associate Principal."

In April 2016, a female Clark Academy student violated the dress code, and Dr.
HaLevi's actions regarding the incident attracted public attention. The student sued
Dr. HaLevi and the District. Dr. HaLevi was placed on administrative leave, and
the Post and Courier newspaper published an article titled "Clark Academy
Principal Placed on Leave." Another article in The Chronicle quoted "county
school board member" Chris Collins as saying "I think [Dr. HaLevi] just got
mad . . . I think he should be fired, but I don't think there is board support to do
that." In deposition testimony, Collins said he did not speak for the District.

Dr. HaLevi wrote a letter to the Post and Courier after the incident. He noted that
educators were prohibited by law from commenting on ongoing disciplinary issues.
He discussed the challenges that he and the staff at Clark Academy encountered in
dealing with at-risk students. He stated that "each student we fail to reach is a
tragedy for the entire Charleston community."

The District investigated the dress code incident and made findings in a
confidential report on April 29, 2016, concluding that Dr. HaLevi did not act
appropriately. The District recommended that Dr. HaLevi be suspended,
dismissed, or removed from Clark Academy.

Dr. HaLevi sent numerous letters to various District officials and eventually
followed the grievance process whereupon the District classified his complaints as
a grievance and responded to it. It appears the District sent Dr. HaLevi a new
"draft" grievance procedure in November 2016. In May 2017, after reviewing the
grievance and all information regarding the dress code incident, the District
Superintendent (the Superintendent) found that Dr. HaLevi did not exercise good
judgment. The Superintendent noted that Dr. HaLevi's handling of the dress code
incident alone was sufficient to warrant his reassignment. To rebut Dr. HaLevi's
claims that the District had not kept him apprised of his employment status, she
outlined four instances of communication between April 24, 2016, and July 28,
2016, from the District to Dr. HaLevi about his status in the District. Dr. HaLevi
was neither terminated from the District nor suspended without pay. He left the
District in 2017. 1

Dr. HaLevi sued the District for defamation, a due process violation, and breach of
the covenant of good faith and fair dealing. The circuit court granted summary
judgment to the District on all claims, and this appeal followed.

ISSUE ON APPEAL

Did the circuit err in granting summary judgment to the District?

STANDARD OF REVIEW

"Rule 56(c) of the South Carolina Rules of Civil Procedure provides that the
moving party is entitled to summary judgment 'if the [evidence before the court]
show[s] that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.'" Kitchen Planners, LLC v.
Friedman, 440 S.C. 456, 459, 892 S.E.2d 297, 297 (2023) (quoting Rule 56(c),
SCRCP). "When determining if any triable issues of fact exist, the evidence and
all reasonable inferences must be viewed in the light most favorable to the non-
moving party." Callawassie Island Member Club, Inc. v. Martin, 437 S.C. 148,
157, 877 S.E.2d 341, 345 (2022).

LAW/ANALYSIS

I. Defamation and Defamation by Innuendo

Dr. HaLevi argues a jury "could find that [the District's] actions clearly inferred
that [Dr. HaLevi] was unfit for his job. His complaint contended the District
defamed him by placing him on leave, by not defending him in the press as they
had done for other employees, and by demoting him.

In order to prove defamation, the plaintiff must show (1)
a false and defamatory statement was made; (2) the
unprivileged publication was made to a third party; (3)
the publisher was at fault; and (4) either actionability of
the statement irrespective of special harm or the
existence of special harm caused by the publication.

1
Dr. HaLevi currently lives and works in Israel.
Erickson v. Jones St. Publishers, LLC, 368 S.C. 444, 465, 629 S.E.2d 653, 664
(2006).

To render [a] defamatory statement actionable, it is not
necessary that the false charge be made in a direct, open
and positive manner. A mere insinuation is as actionable
as a positive assertion if it is false and malicious and the
meaning is plain. Statements therefore may be either
defamatory on their face, or defamatory by way of
innuendo. Innuendo is extrinsic evidence used to prove a
statement's defamatory nature. It includes the aid of
inducements, colloquialisms, and explanatory
circumstances.

Fountain v. First Reliance Bank, 398 S.C. 434, 441–42, 730 S.E.2d 305, 309
(2012).

We find the evidence and all reasonable inferences do not show a genuine issue of
material fact as to whether the District defamed Dr. HaLevi by innuendo. Dr.
HaLevi has not shown that the District was under any obligation to comment on
his behalf, regardless of whether it chose to speak on other issues in the past. Dr.
HaLevi's other claims outlined above relate to internal administrative findings and
were not "mere insinuations" and were not "false and malicious" with a plain
meaning. The District investigated Dr. HaLevi's handling of the dress code
violation and sent him communications and findings regarding that investigation.
These communications and findings were not available to the public, do not
correspond to the Erickson or Fountain factors outlined above, and were not
defamatory.

The circuit court also found that the District was not a proper defendant regarding
statements made by board member Chris Collins. The circuit court also found Dr.
HaLevi was a public official and barred from asserting a defamation claim against
the District under the South Carolina Tort Claims Act.

Dr. HaLevi argues that Chris Collins made defamatory statements in his official
capacity as a board member of the District. He contends Collins's testimony that
he did not act as the District's agent at the time the statements were made is
irrelevant. We disagree.
"[A] principal may be held liable for defamatory statements made by an agent
acting within the scope of his employment or within the scope of his apparent
authority." Murray v. Holnam, Inc., 344 S.C. 129, 139, 542 S.E.2d 743, 748 (Ct.
App. 2001). Here, Collins claimed he did not speak for the District. We agree.
The statement Dr. HaLevi relies on in making his defamation claim against the
District consists chiefly of Collins's own thoughts about the incident. The words "I
think" appear multiple times in the quotation. Collins states that he is expressing
his opinion that Dr. HaLevi should be fired, before he goes on to express his belief
that there is not board support for that action. These comments aptly demonstrate
that Collins was not acting within the authority of the board. Because Collins
made the underlying comments outside the scope of his official capacity as a board
member, there is no genuine dispute that the statement was improperly attributed to
the board. On its face, this statement cannot be actionable as defamation against
the District, regardless of whether Dr. HaLevi is a public official, because Collins
was acting in an individual capacity.

II. Violation of Due Process Rights

Dr. HaLevi argues the circuit court erred in relying on Foreman v. Griffith 2 and
Johnson v. Morris 3 in finding he could not bring an action for a violation of his due
process rights. He contends that unlike the cases cited by the circuit court, he was
"placed on administrative leave for months and not given any chance to present his
grievance to the Board." Additionally, Dr. HaLevi avers his liberty interest in his
name and reputation was violated when CCSD refused to grant him a hearing
before the Board to clear his name. We disagree.

The record shows that Dr. HaLevi and the District communicated with each other
during the investigation of the dress code violation incident and that Dr. HaLevi
filed a grievance with the District. The District and Dr. HaLevi followed grievance
procedures, and the Charleston County School District Board of Trustees informed
Dr. HaLevi that it considered his grievance and denied it. Dr. HaLevi argues that
part of due process is a party's right to notice and opportunity to be heard, which
"must be granted at a meaningful time and in a meaningful manner." Armstrong v.
Manzo, 380 U.S. 545, 552 (1965). Here, we find the record shows Dr. HaLevi was
granted plentiful opportunity to be heard in a meaningful way, and we agree with
the circuit court's finding that Dr. HaLevi did not demonstrate that he was deprived
of due process. See Young. v. Charleston Cnty. Sch. Dist., 397 S.C. 303, 310, 725

2
81 F. App'x 432 (4th Cir. 2003).
3
903 F.2d 996 (4th Cir. 1990).
S.E.2d 107, 110 (2012) ("[W]e find that a meaningful review requires some
showing that the Board made an informed decision based on the evidence
presented by both parties.").

III. Breach of Covenant of Good Faith and Fair Dealing

Dr. HaLevi argues the circuit court erred in finding he could not bring an action for
breach of covenant of good faith and fair dealing because the District breached his
employment contract by failing to follow its own policies.4 The circuit court found
Dr. HaLevi did not allege that the District fired him and he merely alleged the
District "did not do what he wanted it to do." The circuit court found Dr. HaLevi
did not allege a breach of contract, and failed to show "anything in the contract, the
record, or in law that gives him the right to direct how the [District conducted]
investigations . . . or responds to the findings of the investigations." We agree with
the findings of the circuit court.

Dr. HaLevi contends the District breached the contract he signed on April 15,
2016, titled "Contract for Certified Administrator" (the Contract). The Contract
states that "whenever it is deemed in the best interest of the District, the
Superintendent may reassign, upon notice to and in consultation with the affected
employee, consistent with S.C. Code Ann. 59-24-15." Dr. HaLevi stated in his
complaint that the District breached the Contract by its failure to "publicly support
Dr. HaLevi in his administrator position, its failure to properly investigate the bus
incident, its failure to publicize accurate facts about the bus incident, its refusal to
restore Dr. HaLevi to his administrator position, and its failure to correct the public
record and restore Dr. HaLevi's reputation."

As noted above, the District was under no obligation, contractual or otherwise, to
publicly support Dr. HaLevi in relation to the dress code incident. The Contract

4
Additionally, he contends the Department of Education's (the Department's) order
presents a genuine issue of fact as to whether the District followed its own polices
and breached the duty of good faith and fair dealing. The Department's order states
"admittedly, HaLevi's judgment . . . was flawed." The order also states his actions
did not rise to "the level of inappropriate or unprofessional conduct." However,
the Department investigation that led to the order was to determine whether action
should be taken against his educator certificate. We find the order is not relevant
to our inquiry because it dealt with whether he should be allowed to be an educator
in South Carolina, not whether he should be employed by the District. In fact, the
District did not fire Dr. HaLevi.
specifically states the Superintendent could reassign Dr. HaLevi whenever it was
deemed to be in the District's best interest. The District investigated the dress code
incident and decided to reassign Dr. HaLevi. This administrative decision was not
a breach of contract and was within the District's statutory and contractual power.
See S.C. Code Ann. § 59-24-15 (2020) ("Certified education personnel who are
employed as administrators on an annual or multi-year contract will retain their
rights as a teacher . . . but no such rights are granted to the position or salary of
administrator."); Snipes v. McAndrew, 280 S.C. 320, 323, 313 S.E.2d 294, 296
(1984) ("We are of the opinion that policy decisions concerning where an
employee will best serve the school district are better left to school officials, not
the courts.").

CONCLUSION

Based on the foregoing analysis, the circuit court's order is
AFFIRMED. 5

WILLIAMS, C.J., and HEWITT and VERDIN, JJ., concur.

5
We decide this case without oral argument pursuant to Rule 215, SCACR.