Bowers v. College of Charleston

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

Dr. Robin
Bowers, Appellant/Respondent,

v.

College of
Charleston, Respondent/Appellant.

Appeal From the Administrative Law Court

 Marvin F. Kittrell, Chief Administrative
Law Judge

Unpublished Opinion No. 2011-UP-569

Heard December 8, 2011 – Filed December
20, 2011  

AFFIRMED

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. 

[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).