Gastineau v. Murphy

Decision Date07 May 1996
Docket NumberNo. 2517,2517
Citation473 S.E.2d 819,323 S.C. 168
CourtSouth Carolina Court of Appeals
PartiesJames E. GASTINEAU, Respondent, v. Leigh MURPHY, Individually, and as Executive Director of the Beaufort County Mental Retardation Board, Beaufort County Council, The State Department of Mental Retardation, Defendants, of whom The Beaufort County Mental Retardation Board is, Appellant. . Heard

Charles E. Carpenter, Jr. and Deborah Harrison Sheffield, both of Richardson, Plowden, Grier & Howser, Columbia; James S. Gibson, Jr. of Howell, Gibson & Hughes, Beaufort, for Appellant.

V.M. Manning Smith, of Moss & Kuhn, Beaufort, for Respondent.


This is an action under the South Carolina Whistleblower Act, S.C.Code Ann. § 8-27-10 et seq. (Supp.1991), in which the jury returned a verdict in favor of the Plaintiff, James Gastineau, in the amount of $375,000. The Whistleblower Act became effective March 14, 1988, and was substantially revised effective June 21, 1993. Because Gastineau was terminated in 1990, the original statute applies. The Defendant, Beaufort County Mental Retardation Board, appeals the denial of its trial motions for judgment notwithstanding the verdict and new trial. We affirm.


Townes Assoc., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976), is unexcelled in South Carolina in outlining the scope of review in civil cases. Townes instructs:

In an action at law, on appeal of a case tried by a jury, the jurisdiction of this Court extends merely to the correction of errors of law, and a factual finding of the jury will not be disturbed unless a review of the record discloses that there is no evidence which reasonably supports the jury's findings. Odom v. Weathersbee, 225 S.C. 253, 81 S.E.2d 788 (1954).

Townes, 266 S.C. at 85, 221 S.E.2d at 775.

On appeal from an order granting a directed verdict, the appellate court views the evidence and all reasonable inferences from the evidence in a light most favorable to the party against whom the directed verdict was granted. If the evidence as a whole is susceptible of more than one reasonable inference, a jury issue is created and the motion should have been denied. See Adams v. G.J. Creel and Sons, Inc., 320 S.C. 274, 465 S.E.2d 84 (1995); Whelan v. Welch, 304 S.C. 548, 405 S.E.2d 836 (Ct.App.1991); Unlimited Services, Inc. v. Macklen Enterprises, Inc., 303 S.C. 384, 401 S.E.2d 153 (1991) (d.v. or j.n.o.v.). This does not mean that the court should ignore facts unfavorable to the opposing party. Love v. Gamble, 316 S.C 203, 448 S.E.2d 876 (Ct.App.1994). "In essence, the court must determine whether a verdict for the opposing party 'would be reasonably possible under the facts as liberally construed in his favor.' " Love, 448 S.E.2d at 879 (quoting Bultman v. Barber, 277 S.C. 5, 7, 281 S.E.2d 791, 792 (1981)). See also Small v. Pioneer Machinery , Inc., 316 S.C. 479, 450 S.E.2d 609 (Ct.App.1994) ("The trial court must eliminate from its consideration all evidence contrary to or in conflict with the evidence favorable to the nonmoving party and give to the nonmoving party every favorable inference that the facts reasonably suggest.").

The Mental Retardation Board argues the court erred in denying its motion for judgment notwithstanding the verdict because there is no evidence Gastineau's employment was terminated because he made a complaint to the South Carolina Department of Mental Retardation. In ruling on motions for directed verdict and judgment notwithstanding the verdict, "the trial court must view the evidence and all reasonable inferences in the light most favorable to the non-moving party." McGill v. University of South Carolina, 310 S.C. 224, 226, 423 S.E.2d 109, 111 (1992). "If the evidence yields more than one inference, the motion for directed verdict should be denied." Garrett v. Locke, 309 S.C. 94, 98, 419 S.E.2d 842, 845 (Ct.App.1992). In ruling on the directed verdict motion, the trial court does not have the authority to decide credibility issues nor to resolve conflicts in the testimony and evidence. Garrett, supra. Procedurally, the motion for judgment notwithstanding the verdict is a renewal of the directed verdict motion and cannot raise grounds beyond those raised in the directed verdict motion. Glover v. N.C. Mut. Life Ins. Co., 295 S.C. 251, 368 S.E.2d 68 (Ct.App.1988).


In his complaint, Gastineau alleged he was discharged by his supervisor, Leigh Murphy, from his employment with the Beaufort County Mental Retardation Board on October 31, 1990. Leigh Murphy was the Executive Director of the Mental Retardation Board. Gastineau asserted he was discharged because he reported alleged wage and safety violations concerning handicapped clients. He further claimed his discharge came within one year of his report of the violations. In response, the Mental Retardation Board denied Gastineau's allegations. At trial, the court dismissed all defendants except the Mental Retardation Board and denied the Board's motion for directed verdict. During the jury deliberations, the jurors sent a note to the court requesting a response to certain questions. The court instructed the jury to consider only the evidence submitted at trial. After the jury returned its verdict, the court denied the Board's trial motions in a written order.

Viewing the evidence in the light most favorable to Gastineau, he was hired by the Mental Retardation Board on April 2, 1990, as the director of a residential home for mentally handicapped individuals. Handicapped persons who lived at the home participated in a day program at the Beaufort County Rehabilitation Center. One of the functions of the Rehabilitation Center was to provide employment for the handicapped clients either through a workshop at the center or in the community. Gastineau's wife was employed at the Rehabilitation Center as a trainer/driver. In August of 1990, Mrs. Gastineau informed her husband several handicapped workers were being transported one day a week to clean up a construction site on Fripp Island. Mrs. Gastineau investigated the records at the Rehabilitation Center and learned the construction company was owned by Robert Murphy, the husband of Leigh Murphy, who was the Executive Director of the Mental Retardation Board. Mrs. Gastineau told her husband she was concerned about the wages being paid to the clients and their safety on the site. She also expressed her concerns to her immediate supervisors at the Rehabilitation Center. According to Mrs. Gastineau, her supervisors stated they would have to discuss the matter with Mrs. Murphy.

Gastineau testified that after a few weeks passed he contacted Alice Shook, an employee of the South Carolina Department of Mental Retardation. Ms. Shook provided technical assistance to county employees who worked with residential programs. Ms. Shook testified Gastineau contacted her about the work program at the Rehabilitation Center and expressed concern over how the handicapped clients were paid. 1 After talking with her supervisors, they decided to send Gary Hudson from the licensing division to review the day program at the Rehabilitation Center. At the time of trial, Mr. Hudson was deceased and no written report could be located concerning his investigation. However, Ms. Shook testified she recalled no problems were found. Ms. Shook denied contacting Leigh Murphy about her conversation with Gastineau. She did not know who Mr. Hudson may have talked to while conducting his review in Beaufort.

Gastineau received performance evaluations by Leigh Murphy at three and six months. The three month evaluation indicated Gastineau was meeting or exceeding expectations in numerous areas, although he was below expectations in others. The six month evaluation stated he met or exceeded expectations in many areas, but there also were notations of below level performance. Mr. Gastineau suffers from cerebral palsy and during the job interview he indicated his greatest weakness was manual clerical work. At trial, he testified he felt he was doing alright at the job but was struggling with the required paperwork. On October 3, 1990, Gastineau received a written warning from Leigh Murphy concerning violation of directives. He was assigned non-supervisory work and was terminated on October 31, 1990.

Leigh Murphy testified she had no knowledge of Gastineau's conversation with Alice Shook when she fired him. She denied being advised by anyone of a complaint concerning wage payments to handicapped clients. According to Murphy, she fired Gastineau because his job performance decreased during the period of his employment and she was concerned about the residential home's ability to pass a state licensing audit. An informal audit conducted by an outside consultant had indicated problems with client records and other regulatory requirements and Murphy felt Gastineau had not adequately addressed these concerns.

At trial, the Board moved for a directed verdict based upon Gastineau's alleged failure to prove it had any knowledge of his whistleblowing activity before his termination and based upon the conclusion Gastineau was terminated because of his poor job performance. Neither James Gastineau nor his wife reported their wage payment concerns to Leigh Murphy. Contrary to her testimony, Mrs. Gastineau's supervisors testified she did not report anything to them. Alice Shook stated she did not discuss Gastineau's report with Murphy. Additionally, Leigh Murphy denied she knew anything about Gastineau's report concerning the wages paid to handicapped workers by her husband's company. However, the jury may have inferred she learned about it during Gary Hudson's review and this was the basis for Gastineau's termination instead of his job performance. It was the jury's responsibility to assess the credibility of the...

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    ...not justify the verdict. This ruling has also been termed a granting of a new trial upon the facts. See Gastineau v. Murphy, --- S.C. ----, ----, 473 S.E.2d 819, 827 (Ct.App.1996). The seminal case stating the "thirteenth juror" doctrine is Worrell v. South Carolina Power Co., 186 S.C. 306,......
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    ...within the range of damages testified to, the verdict cannot be disturbed on the ground of excessiveness." Gastineau v. Murphy , 323 S.C. 168, 183, 473 S.E.2d 819, 828 (Ct. App. 1996) (alteration in original) (quoting Buzhardt v. Cromer , 272 S.C. 159, 163, 249 S.E.2d 898, 900 (1978) ), rev......
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