Hinton v. Designer Ensembles, Inc.

• Decision Date: 26 April 1999
• Docket Number: No. 2981.,2981.
• Citation: 516 S.E.2d 665,335 S.C. 305
• Court: South Carolina Court of Appeals
• Parties: Aaron Earl HINTON, Respondent, v. DESIGNER ENSEMBLES, INC., Appellant.

335 S.C. 305

516 S.E.2d 665

Aaron Earl HINTON, Respondent, v. DESIGNER ENSEMBLES, INC., Appellant.

No. 2981.

Court of Appeals of South Carolina.

Heard March 9, 1999.

Decided April 26, 1999.

Rehearing Denied June 26, 1999.

Randall S. Hiller, of Greenville, for appellant.

Eddie R. Harbin, of Greenville, for respondent.

HOWELL, Chief Judge:

Designer Ensembles, Inc. (Designer) appeals the trial court's decision awarding Aaron Earl Hinton lost wages and reinstatement under S.C.Code Ann. § 41-1-80 (Supp.1998). We affirm in part and reverse in part.

FACTS

Designer employed Hinton in December 1993 as a shipping department supervisor. As a supervisor, Hinton understood and was often required to enforce Designer's attendance policy. Under this policy, if an employee was absent for three consecutive days without calling Designer or for five consecutive days without providing Designer a doctor's excuse, the employee could be terminated.

On August 2, 1994, Hinton injured his right ankle and lower back in a work-related accident. Prior to the accident, Hinton had never missed a work day or arrived late, nor had he been disciplined by Designer for poor work performance.

After the accident, Hinton received emergency treatment from Greenville Memorial Hospital, which then referred Hinton to Dr. James Wallace. Dr. Wallace prescribed medication and referred Hinton to Dr. Collin Kanar when therapy failed to help. Dr. Kanar prescribed medication, performed a bone scan, and administered a steroid injection before transferring Hinton to Dr. Kevin Kopera of the Health and Occupational Facility at Greenville Memorial Hospital. Under Dr. Kopera's care, Hinton engaged in physical therapy and felt significant improvement. Dr. Kopera never took any X-rays or ordered an MRI test. In late October, Dr. Kopera released Hinton for work subject to certain restrictions and told Hinton that Designer intended to accommodate these restrictions.

Hinton's personnel manager, Marie Sitter, obtained notice of Hinton's release and requested he return to work or provide a doctor's excuse. Sitter also expressed Designer's desire to accommodate Hinton's restrictions. Hinton met with Sitter; Joe Nettles, Hinton's facility manager; and Carter Mahaffey, Hinton's immediate supervisor, to discuss accommodating Hinton's restrictions. Hinton's supervisors told him they only needed him to use his brain to supervise and that his job would not require physical exertion. His supervisors told him they would permit him to take breaks and even lie down when necessary. As a result, Hinton agreed to attempt work again.

Upon returning to work on November 1, Hinton worked a full shift, but felt pain in his back. Hinton left a message on Mahaffey's answering machine stating he experienced pain but planned on working the next day. On November 2, Hinton reported to work, but called Mahaffey at home complaining of pain. Hinton told Mahaffey he planned to leave if the pain remained. A member of Hinton's crew called Mahaffey an hour later and reported that Hinton had left work. Hinton testified that after approximately two hours, he informed Mahaffey the pain rendered work unbearable. Due to his pain, Hinton attempted to schedule another appointment with Dr. Kopera, who refused to see Hinton. Instead, Kopera scheduled an appointment for Hinton to see Dr. Stanley Reid, an orthopaedic specialist.

On November 3, Hinton called and complained of too much pain to work. Mahaffey informed Hinton the absence was unexcused because Kopera had released Hinton to work. On November 4, 1994, Hinton called and complained that he was in too much pain to work. Mahaffey again told Hinton the absence was unexcused without a doctor's excuse. On November 5, a Saturday, Hinton did not go to work and did not call, even though Mahaffey had previously required Hinton to work on Saturdays until January 1. On November 7, Hinton neither went to work nor called to tell Designer he would be absent. On November 8, Hinton called and complained of too much pain to work. When Mahaffey again told Hinton the absence was unexcused, Hinton responded by claiming someone called in for him on Monday. On November 9, 1994, Hinton called and complained of too much pain to work and Mahaffey again told Hinton the absence was unexcused. Hinton called on November 10, but Mahaffey was in a meeting. On November 11, 1994, Mahaffey called Hinton. When Hinton returned the call, Mahaffey transferred Hinton to Nettles, who discharged Hinton for having too many unexcused absences. On November 15, Dr. Reid ordered an MRI which revealed a herniated disc as the source of Hinton's problem. Dr. Reid determined Hinton reached maximum medical improvement (MMI) on January 20, 1995, and issued Hinton a 5 percent impairment rating. On February 12, 1995, Dr. Reid released Hinton to work retroactive to January 20, 1995. On February 14, 1995, Hinton attempted to resume working, but Designer told Hinton he no longer had a job. Hinton eventually obtained a job as a shipping manager at another company, but he resigned over salary negotiations in February 1996. He has not worked since.

Hinton received his full salary from Designer for the first thirty days after the accident and then began receiving temporary total disability payments. In June 1995, a hearing was held on Designer's motion to stop payment of the benefits. At the hearing, Hinton testified his injuries continued to worsen, necessitating further medical treatment. The hearing commissioner's order (the 1995 order) found Hinton reached MMI on January 20, 1995, found Hinton suffered a 14 percent permanent partial disability, and granted Designer's stop payment request. The hearing commissioner also required Hinton to refund a portion of the temporary total disability payments.

On November 9, 1995, Hinton filed a complaint against Designer alleging retaliatory discharge and wrongful discharge in violation of public policy. Designer answered, denying liability on both theories. Though the public policy action was eventually dismissed, the retaliatory discharge claim went to trial. At trial, Nettles testified he reminded Hinton on two occasions to obtain a doctor's excuse to avoid violating Designer's policy. After the second warning in late October, Hinton never provided a doctor's excuse except for a one-day excuse from St. Francis Hospital emergency room. Hinton acknowledged that failing to provide a doctor's excuse for eleven days would violate Designer's policy, but testified that he understood from his visits with Dr. Kopera that Kopera had communicated with Designer about Hinton's continued difficulty working. In addition, Sitter testified that she talked with Kopera on several occasions, but could not remember whether she continued to speak with him up until and after Hinton was fired. Sitter also testified that she "quite possibly" could have talked to Dr. Reid but could not recall definitely. Moreover, Sitter admitted she often talked with Designer's workers' compensation carrier, who kept Sitter informed about Hinton's treatment status.

After hearing the evidence, the trial court announced its ruling for Hinton, noting that Designer knew of Hinton's condition and fired Hinton while he was receiving temporary total disability benefits. In its June 2, 1997, order (the 1997 order), the court found that Designer knew or should have known of Hinton's condition, that Hinton had a sterling attendance record, and that Hinton was fired while receiving temporary total disability benefits. The 1997 order concluded that Hinton was discharged in retaliation against his workers' compensation claim.

LAW/ANALYSIS

A retaliatory discharge claim under Workers' Compensation Act section 41-1-80 is an action in equity. See Wallace v. Milliken & Co., 305 S.C. 118, 120, 406 S.E.2d 358, 359 (1991)

. In an action in equity, the appellate court may find facts in accordance with its own view of the preponderance of the evidence. See Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976). "However, this broad scope of review does not require us to disregard the findings of the trial judge who was in a better position to evaluate the credibility of the witnesses." Smothers v. Richland Mem'l Hosp., 328 S.C. 566, 570, 493 S.E.2d 107, 109 (Ct.App.1997).

I.

Designer argues that the trial court erred in ruling for Hinton because the evidence was insufficient to establish a retaliatory discharge. We disagree.

Section 41-1-80 provides, in pertinent part:

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 who violates any provision of this section is liable in a civil action for lost wages suffered by an employee as a result of the violation, and an employee discharged or demoted in violation of this section is entitled to be reinstated to his former position. The burden of proof is upon the employee.

S.C.Code Ann. § 41-1-80 (Supp.1998). "The elements of a claim under § 41-1-80 are: (1) institution of workers' compensation proceedings; (2) discharge or demotion; and (3) a causal connection between (1) and (2)." Hines v. United Parcel Service, Inc., 736 F.Supp. 675, 677 (D.S.C.1990).

An employer has certain affirmative defenses under section 41-1-80, including "wilful or habitual ... absence from work; ... failure to meet established employer work standards;... [and] violating specific written company policy for which the action is a stated remedy of the violation." § 41-1-80.

While the employer has the burden of proving its affirmative defenses, ... "[t]he ultimate burden of persuading the trier of fact that the employer retaliatorily discharged the employee for exercising statutory rights under the Act remains

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