Bowers v. College of Charleston ( 2011 )

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

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Dr. Robin Bowers, Appellant/Respondent,

v.

College of Charleston, Respondent/Appellant.

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Appeal From the Administrative Law Court
Marvin F. Kittrell, Chief Administrative Law Judge

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Unpublished Opinion No. 2011-UP-569
Heard December 8, 2011 – Filed December 20, 2011  

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AFFIRMED

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Gregory Samuel Forman, of Charleston, for Appellant/Respondent.

Stephen L. Brown, Wilbur E. Johnson, and Russell G. Hines, all of Charleston, for Respondent/Appellant.

PER CURIAM:  In this cross-appeal, Appellant/Respondent Dr. Robin Bowers appeals from an order of the Administrative Law Court (the ALC) affirming Bowers' termination as a tenured professor at Respondent/Appellant College of Charleston (the College). Bowers argues on appeal that the College denied him due process and there is no evidence to support the College's decision to terminate his employment.  On cross-appeal, the College argues the ALC erred by enforcing an automatic stay which required the College to pay Bowers' wages during the pendency of his appeal to the ALC.  We affirm.

1.  As to Bowers' argument that the College's grievance procedures denied him due process by placing an impermissible limitation on his counsel's participation, we find the issue unpreserved because Bowers did not object to the grievance procedures at either the prehearing conference or the hearing itself.  See Lee Cnty. Sch. Dist. Bd. of Trs. v. MLD Charter Sch. Acad. Planning Comm., 371 S.C. 561, 566, 641 S.E.2d 24, 27 (2007) ("[An appellate court] has a limited scope of review and cannot consider issues that were not raised to and ruled on by the administrative agency.").

2.  As to Bowers' argument that the complaints, text messages, and deposition were unreliable evidence and admitted upon an unlawful procedure, we find the issue unpreserved.  In regard to the complaints and text messages, we find the issue unpreserved because Bowers did not object to the admission of this evidence.  See Burke v. AnMed Health, 393 S.C. 48, 54, 710 S.E.2d 84, 87 (Ct. App. 2011) (providing a contemporaneous objection to the admission of evidence is typically required to preserve issues for appellate review).  As to the deposition of Raven Ray, the hearing committee informed the parties at the beginning of the hearing that Ray did not feel comfortable testifying unless her attorney was present.  The committee stated it had no objection to Ray's attorney observing the proceedings, but it would only allow Ray's attorney to do so if both parties agreed.  Bowers objected, and therefore the committee decided it would not allow Ray's attorney to be present.  Later in the proceedings, Bowers objected to the admission of Ray's deposition into evidence.  The committee decided to admit the deposition, finding Bowers had an opportunity to question Ray by either agreeing to allow her attorney to observe the proceedings or by submitting counter affidavits.  Bowers' attorney responded by saying she was unaware at the time she objected to Ray's attorney being present that the alternative was the committee would allow Ray's deposition in as evidence and Bowers would not have an opportunity to cross-examine Ray.  The committee explained it lacked subpoena power and again offered Bowers the opportunity to have Ray testify in the presence of her attorney.  After Bowers and his attorney discussed the matter, Bowers' attorney told the committee Bowers did not wish to delay the proceedings any further by having Ray testify and they were ready to continue.  The committee then asked Bowers if he would prefer to have Ray's deposition admitted into evidence rather than have her testify in the presence of her attorney.  Bowers responded by restating his objection to Ray's attorney being present and stated he just wanted to move along with the proceedings because he did not believe he would get much out of having Ray testify.  Bowers' attorney then said to Bowers, "Sure, it's your case."  We find Bowers waived his prior objection to the admissibility of the deposition by deciding he wanted to move along the proceedings when the committee yet again presented Bowers the option and opportunity to have Ray testify.  See CFRE, LLC v. Greenville Cnty. Assessor, __ S.C. __, 716 S.E.2d 877, 885 (2011) (holding CFRE waived on appeal its claim that the trial court erred by not sanctioning property tax assessor for its failure to formally respond to CFRE's interrogatories and production requests, where the trial court offered to continue the proceedings and order a formal response from the assessor, but CFRE declined the court's invitation and agreed that a continuance would be unlikely to produce anything further).

3.  As to Bowers' argument that he was not required to preserve issues related to his right to counsel or evidentiary procedures, we find the exception to the general rule of error preservation noted in Ex parte Jackson, 381 S.C. 253, 672 S.E.2d 585 (Ct. App. 2009), is not applicable in this case because Bowers had counsel present and actively representing him at all times during the prehearing conference and the hearing itself.  See id. at 261 n.3, 672 S.E.2d at 589 n.3 (holding a pro se litigant could not be expected to raise the issue of whether he was entitled to counsel).

4.  As to Bowers' argument that the College denied him due process by not allowing him to confront Ray at the hearing, we find no error because Bowers' inability to cross-examine Ray was a result of his own conduct.  Ray agreed to appear and testify at the hearing so long as her attorney could be present.  Although the hearing committee explained to Bowers that Ray's attorney would be present in an observatory role only, Bowers did not agree to allow Ray's attorney to be present during her testimony.  Thus, Bowers' inability to cross-examine Ray was not a denial of due process.  See Zaman v. S.C. State Bd. of Med. Exam'rs, 305 S.C. 281, 285, 408 S.E.2d 213, 215 (1991) (holding a party cannot complain of a violation of due process if the party has recourse to a constitutionally sufficient administrative procedure, but merely fails to take advantage of it); In re Vora, 354 S.C. 590, 600, 582 S.E.2d 413, 418 (2003) ("Due process is not violated where a party is not given the opportunity to confront witnesses so long as there has been a meaningful opportunity to be heard.").

5.  As to Bowers' argument that the record contains no evidence that his communications or actions towards Ray met the College's definition of "sexual harassment," we find Ray's deposition, Bowers' text messages to Ray, and the lyrics of the poem posted on the internet, all provided evidence from which the College could reasonably find Bowers in violation of the College's sexual harassment policy.  See Risher v. S.C. Dep't of Health & Envtl. Control, 393 S.C. 198, 210, 712 S.E.2d 428, 434 (2011) (holding "substantial evidence" sufficient to support a finding of the ALC is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached); Spruill v. Richland Cnty. Sch. Dist. 2, 363 S.C. 61, 65, 609 S.E.2d 524, 526 (2005) (providing the appellate court traditionally defers to an agency's construction of its own regulation and the appellate court will not overturn such construction absent compelling reasons); ESA Servs., LLC v. S.C. Dep't of Revenue, 392 S.C. 11, 24, 707 S.E.2d 431, 438 (Ct. App. 2011) (holding a reviewing court may reverse or modify decisions that are controlled by error of law or are clearly erroneous in view of the substantial evidence on the record as a whole).[1]

6.  As to the College's argument that the ALC erred by enforcing an automatic stay pursuant to ALC Rule 34, we find no error because enforcement of the stay merely held Bowers in the same position that he was in prior to his termination, on suspension with pay, pending the final decision of the ALC.  See ALC Rule 34 ("The filing of an appeal from the final decision of an agency shall stay the final decision of that agency . . . ."); Santee Cooper Resort, Inc. v. S.C. Pub. Serv. Comm'n, 298 S.C. 179, 184, 379 S.E.2d 119, 122 (1989) ("To stay an order is to hold it in abeyance or refrain from enforcing it; a stay is a stopping." (internal quotations omitted)); Graham v. Graham, 301 S.C. 128, 130, 390 S.E.2d 469, 470 (Ct. App. 1990) (holding the purpose of a stay is to preserve the status quo pending the determination on appeal).

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur. 

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[1] Because we find sufficient evidence to support the College's decision to terminate Bowers' employment for his violation of the College's sexual harassment policy, we need not address Bowers' remaining arguments regarding other grounds asserted by the College as justification for its decision.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (providing an appellate court need not address remaining issues when disposition of prior issue is dispositive).