Fredrich v. Dolgencorp, LLC, C/A No. 3:13-cv-01072-JFA

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtJoseph F. Anderson, Jr. United States District Judge
Docket NumberC/A No. 3:13-cv-01072-JFA
PartiesGary Fredrich, Plaintiff, v. Dolgencorp, LLC, Defendant.
Decision Date08 September 2014

Gary Fredrich, Plaintiff,
v.
Dolgencorp, LLC, Defendant.

C/A No. 3:13-cv-01072-JFA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

September 8, 2014


ORDER

I. INTRODUCTION

This matter comes before the court on a Motion for Summary Judgment by Defendant Dolgencorp, LLC. Plaintiff Gary Fredrich, a former store manager at Dollar General, was terminated on November 8, 2012, for purported violations of Defendant's policies related to cash handling. Plaintiff claims his termination was in retaliation for filing a workers' compensation claim and that he was defamed based on his termination and alleged statements by Defendant's employees suggesting he stole money from the store and that he is prejudice.

Accordingly, Plaintiff's Amended Complaint alleges two causes of action: 1) workers' compensation retaliation pursuant to S.C. Code Ann. § 41-1-80 and 2) defamation (slander). Discovery has closed and this case is now ripe for the court's consideration of dispositive motions. Defendant filed a motion for summary judgment on June 13, 2014. For the reasons discussed below, this Court grants Defendant's motion for summary judgment in part and denies Defendant's motion for summary judgment in part.

II. BACKGROUND FACTS

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Plaintiff's employment with Defendant began in November 2008 (Fredrich Dep. 25:9-15). Plaintiff‘s career with Defendant progressed and he ultimately became the store manager of Defendant's store 12106 in Sumter, South Carolina around May 2010. (Fredrich Dep. 34:1-15). While the store manager, Plaintiff attempted to terminate a part-time sales associate, Renard Belser ("Belser"), for working slower than required by company policy while unloading the rolltainers from the inventory truck. (Fredrich Dep. 49:6-50:6; 52:11-17). However, Ben Bellamy ("Bellamy"), the District Manager of Defendant, required Plaintiff to reinstate Belser as a sale associate because Plaintiff failed to document properly the reasons for Belser's termination. (Bellamy Dep. 66:5-12). After Belser's reinstatement, the relationship between Belser and Plaintiff grew contentious and eventually escalated to a confrontation between the two employees. (Fredrich Dep. 71:16-72:5). After his reinstatement, Belser believed that Plaintiff directed more effort to terminate him. (Fredrich Dep. 63:21-64:23). Belser expressed such beliefs with other employees in allegedly defamatory remarks about Plaintiff. See id. More details about Belser's statements are discussed below within the defamation claim.

On October 24, 2012, Plaintiff states that he hurt his back when setting up a display rack. (Fredrich Dep. 170:22-24). Around that same time, Plaintiff reported the injury. Id. Sometime before October 24, 2012, Bellamy noticed cash inconsistencies at the Sumter store and began an investigation. (Bellamy Dep. 28:13-29:10). The exact date Bellamy launched the investigation is not clear; however, it is clear from the evidence that it was before October 24, 2012. Eventually, Bellamy's investigation yielded information that warranted an on-site visit by loss prevention. (Bellamy Dep. 32:24-33:4). Bellamy contacted Bradley Newkirk ("Newkirk"), the Regional Loss Prevention Manager, and Newkirk agreed to conduct an on-site investigation on

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November 8, 2012. (Bellamy Dep. 34:12-17). Both Bellamy and Newkirk visited the Sumter store on November 8, 2012, coincidentally, the same day that John West, the Regional Director, visited the Sumter store. (Fredrich Dep. 88:3-12; 14-26). After about an hour investigating paperwork, Newkirk conducted an interview with Plaintiff. (Fredrich Dep. 89:6-25). Newkirk testified that during this interview, Plaintiff admitted to certain violations of the Defendant's corporate policy. (Newkirk Dep. 21-22). At the end of the interview, Plaintiff provided a handwritten statement admitting to certain violations of the Defendant's corporate policy. (Fredrich Dep. Exh. 1; Bellamy Dep. Exh. 2). Newkirk then stepped outside of the interview room to discuss the findings with Bellamy. (Bellamy Dep. 65:4-8). Bellamy contacted human resources regarding Plaintiff's possible termination. (Bellamy Dep. 64-65). After his discussion with human resources and Newkirk, Bellamy immediately terminated Plaintiff. (Bellamy Dep. 64:7-24). Plaintiff exited the store without an escort and without speaking to any person regarding his termination. (Fredrich Dep. 115:23-25). After Plaintiff's termination, Belser made allegedly defamatory statements concerning Plaintiff's termination and the reasons for such termination. Such statements are detailed within the defamation claim discussed below.

III. LEGAL STANDARD

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). A fact is deemed "material" if proof of its existence or non-existence would affect disposition of the case under

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applicable law. Anderson, 477 U.S. 242 at 248. "Genuineness means that the evidence must create fair doubt; wholly speculative assertions will not suffice." Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). While all facts and the reasonable inferences therefrom must be construed in the light most favorable to the nonmoving party, that party only creates a genuine issue of fact when it produces evidence that would create a reasonable probability, and not a mere possibility, of a jury finding in that party's favor. Cook v. CSX Transp. Corp., 988 F.2d 507, 512 (4th Cir. 1993).

The moving party "bears the initial burden of pointing to the absence of a genuine issue of material fact." Temkin v. Frederick Cnty. Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party carries this burden, "the burden then shifts to the non-moving party to come forward with facts sufficient to create a triable issue of fact." Id. at 718-19 (citing Anderson, 477 U.S. at 247-248).

The party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (1) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (2) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. FED. R. CIV. P. 56(c)(1)(A-B).

If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion;

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(3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it; or (4) issue any other appropriate order. FED. R. CIV. P. 56(e)(1-4).

IV. DISCUSSION

A. Retaliatory Discharge in Violation of S.C. Code Ann. § 41-1-80

In 1986, the South Carolina General Assembly enacted a statute prohibiting an employer from retaliating against an employee because the employee filed a workers' compensation claim. The statute provides:

No employer may discharge or demote any employee because the employee has instituted or caused to be instituted, in good faith, any proceeding under the South Carolina Workers' Compensation Law (Title 42 of the 1976 Code), or has testified or is about to testify in any such proceeding.

. . .

Any employer shall have as an affirmative defense to this section the following: willful or habitual tardiness or absence from work; being disorderly or intoxicated while at work; destruction of any of the employer's property; failure to meet established employer work standards; malingering; embezzlement or larceny of the employer's property; violating specific written company policy for which the action is a stated remedy of the violation.

S.C. CODE ANN. § 41-1-80. The burden of proving a violation of the retaliatory discharge statute is on the employee. Id. The elements of a claim under Section 41-1-80 are: (1) institution of workers' compensation proceedings; (2) discharge or demotion; and (3) a causal connection between elements (1) and (2). Hines v. United Parcel Serv., Inc., 736 F. Supp. 675, 677-78 (D.S.C. 1990). Defendant concedes that Plaintiff can satisfy the first two elements of a workers' compensation retaliation claim; therefore, this Court will address only the causation element.

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To satisfy the causation element, the employee must prove that the filing of a workers' compensation claim was the "determinative factor" in his termination. Hinton v. Designer Ensembles, Inc., 343 S.C. 236, 540 S.E.2d 94, 97 (S.C. 2000). Accordingly, the employee must show that "he would not have been discharged 'but for' the filing of the claim." Wallace v. Milliken & Co., 305 S.C. 118, 121, 406 S.E.2d 358, 360 (S.C. 1991).

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