Patterson v. I.H. Services, Inc.

• Citation: 295 S.C. 300,368 S.E.2d 215
• Decision Date: 22 February 1988
• Docket Number: No. 1130,1130
• Court: Court of Appeals of South Carolina
• Parties: , 3 IER Cases 515 Denise R. PATTERSON, Respondent-Appellant, v. I.H. SERVICES, INC., a corporation, Appellant-Respondent. . Heard

Page 215

368 S.E.2d 215

295 S.C. 300, 3 IER Cases 515

Denise R. PATTERSON, Respondent-Appellant, v. I.H. SERVICES, INC., a corporation, Appellant-Respondent.

No. 1130.

Court of Appeals of South Carolina.

Heard Feb. 22, 1988.

Decided April 4, 1988.

Jack H. Tedards, Jr., and Thomas L. Stephenson, Leatherwood, Walker, Todd and Mann, Greenville, for appellant-respondent.

William L. Dodson, Jr., Greenville, for respondent-appellant.

GOOLSBY, Judge:

This action by Denise R. Patterson against I.H. Services, Inc., arises out of Patterson's allegedly wrongful discharge from employment. The trial judge, sitting without a jury, denied Patterson relief under the Victim's and Witness's Bill of Rights Act, South Carolina Code of Laws § 16-3-1510 et seq. (1976), but awarded her actual damages in the amount of $6,968 under the statute that creates a civil action for dismissal of an employee who complies with a subpoena, South Carolina Code of Laws § 41-1-70 (1976) (Cum.Supp.1987). Both parties appeal. We affirm.

The questions presented by I.H. Services relate to the sufficiency of the evidence to support the trial judge's finding that Patterson was wrongfully discharged from her employment, to the sufficiency of the evidence to support an award of actual damages equaling 52 weeks' wages, and to the exclusion of certain evidence challenged as hearsay. The questions presented by Patterson involve the trial judge's finding that the Victim's and Witness's Bill of Rights Act does not create a private cause of action and his finding that a violation of Section 41-1-70 does not allow for the recovery of punitive damages. We affirm.

I.H. Services contracts with businesses and manufacturers to provide janitorial services. It employed Patterson in early April, 1985, to work as a sweeper on the third shift at the Estes Plant of J.P. Stevens, Inc., in Piedmont, South Carolina. When she was hired, Patterson informed her immediate supervisor she might be absent from her job in order to testify as a material witness in an upcoming criminal trial.

Patterson later received subpoenas from both the state and the defendant to appear at the trial. She delivered both subpoenas to Miles Pearson, her immediate supervisor. He excused Patterson from work so that she could appear in court.

Patterson missed only one day of work because of the trial, April 30, 1985.

When Patterson came to work the next day, Pearson dismissed her from employment. He acted on orders from his supervisor. I.H. Services, however, reinstated Patterson on May 2, 1985, after the Solicitor's office intervened on her behalf.

Patterson's reinstatement with I.H. Services lasted only briefly. Her employment ended again on the evening of May 4, 1985.

She thereafter brought the instant action, alleging I.H. Services dismissed her from employment because she complied with a subpoena. I.H. Services answered, alleging Patterson was discharged because she was absent from work and not because she complied with a subpoena.

I.

A.

I.H. Services argues the trial judge erred in finding that the evidence supported Patterson's contention that she was discharged from employment on the night of May 4, 1985. It contends Patterson's account of her firing is entirely lacking in probative value in that it could not possibly have happened in the way she claimed.

Since this is an action at law tried by the trial judge without a jury, his findings of fact have the force and effect of a jury verdict and are conclusive upon appeal when supported by competent evidence. Southeastern P.V.C. Pipe Manufacturing, Inc. v. Rothrock Construction Company, Inc., 280 S.C. 498, 313 S.E.2d 50 (Ct.App.1984). In a case like the instant one, we cannot weigh the evidence. Id. The most we can do is to determine whether there is any evidence that reasonably supports the factual findings of the trial judge. Aperm of South Carolina v. Roof, 290 S.C. 442, 351 S.E.2d 171 (Ct.App.1986).

The record, we have determined, contains evidence that reasonably supports the trial judge's finding of fact that I.H. Services discharged Patterson from her employment on the night of May 4, 1985.

Patterson herself testified Jimmy Adams, the second shift supervisor, fired her in I.H. Services offices inside the Estes Plant when she reported to work that evening. She stated Adams told her in the presence of her immediate supervisor, Debbie Davis, that she was "on layoff." After being informed of this, Patterson testified she said, "Thank you," turned around, and left. She also testified she "was just in there and out."

Adams and Davis, however, disputed Patterson's testimony. Adams denied telling Patterson she had been laid off. He further testified Patterson did not report for work that evening, at least not while he was there. Davis denied seeing Patterson at all.

The guard's sign-in sheet corroborates Davis' testimony in that it shows Patterson leaving the plant at 11:13 p.m. and Davis not arriving at the plant until 11:45 p.m. Patterson did not contest the accuracy of the sign-in sheet.

I.H. Services bases its argument that Patterson's account of her firing is entirely lacking in probative value on the guard's sign-in sheet, on estimates regarding the distance between the main gate and the parking lot where Patterson would be expected to park her car, and on estimates regarding the amount of time it takes to travel from the main gate to the parking lot, get out of the car, walk from the parking lot to I.H. Services' office inside the plant, confer with someone in the office, walk back to the parking lot, get back into the car, and return to the main gate.

The sign-in sheet shows Patterson was about the grounds of her workplace only eight minutes on the night in question. Estimates offered by I.H. Services' witnesses indicated the round trip from the main gate to the office would take anywhere from 20 to 30 minutes and the distance from the main gate to the parking lot is between one-fourth and three-fourths of a mile.

I.H. Services maintains it would be impossible for Patterson to make the round trip from the main gate to the office, do everything she said she did, and be discharged by Adams in only eight minutes. In support of its argument, I.H. Services relies upon Lail v. South Carolina State Highway Department, 244 S.C. 237, 136 S.E.2d 306 (1964), and Still v. Hampton and Branchville Railroad, 258 S.C. 416, 189 S.E.2d 15 (1972).

Both Lail and Still, however, differ considerably from the instant action.

In Lail, testimony relied upon by the plaintiff to establish liability was inconsistent with incontrovertible physical facts and therefore lacked probative value. In Still, the plaintiff's testimony as to liability lacked probative value because it was contrary to common knowledge.

Here, neither objective nor scientific evidence offered by I.H. Services nor common knowledge render inherently incredible Patterson's testimony that she was discharged on the evening of May 4, 1985. See Parker v. Davis, 221 Va. 299, 269 S.E.2d 377 (1980) (oral evidence is overcome only when the physical facts are such that they demonstrate the oral evidence is incredible); Florida Power Corp. v. Willis, 112 So.2d 15, 20 (Fla.Dist.Ct.App.1959), cert. denied, 115 So.2d 6 (Fla.1959) and 115 So.2d 416 (Fla.1959) ("It is a sound rule that when physical situations or matters of common knowledge point so certainly to the truth as to leave no room for a contrary determination, based on reason and common sense, such physical situation and reasonable probabilities are not affected by sworn testimony which, in mere words, conflicts therewith."); 30 Am.Jur.2d Evidence § 1985 at 239 (1967) ("[T]he probative value of the testimony of witnesses is not destroyed by physical facts unless the facts are such as to permit of but one interpretation."). Obviously, the question of how quickly Patterson was able to reach her work area after leaving the main gate, confer with Adams, and return to the main gate on the evening in question is a matter that depended on many variables.

At most, Patterson's testimony is implausible; however, "[t]he mere fact that testimony given by a witness in support of an issue is not plausible does not necessarily destroy all probative value of the testimony." Id. at 237; see Kirby v. Moehlman, 182 Va. 876, 30 S.E.2d 548 (1944) (simply because the testimony of a witness on which a verdict is based is not plausible will not suffice to justify the court pronouncing as a matter of law that the testimony is manifestly untrue or inherently incredible).

B.

1.

I.H. Services asserts the trial judge erred in awarding Patterson pursuant to Section 41-1-70 ¹ actual damages equaling 52 weeks' lost wages "when the evidence showed that she lost no more than three months' wages as a result of her job termination." ² I.H. Services maintains the only reasonable inference to be drawn from the evidence is that Patterson would have lost her job in July, 1985, when I.H. Services lost its contract with J.P. Stevens to provide janitorial services at the latter's Estes Plant.

Although there is evidence from which the trial judge could have concluded that Patterson would have been discharged in July, 1985, when I.H. Services lost its contract to service J.P. Stevens' Estes Plant, there is also evidence that reasonably supports his conclusion that Patterson would not have been discharged at that time.

I.H. Services is, as we noted earlier, a janitorial service employing over 2,000 workers. Patterson was employed as a sweeper, i.e., a person who "sweep[s] up and haul[s] the waste and weigh[s] it." She performed her duties well, according to one supervisor. Patterson worked for minimum wage, as did Davis who, as we also noted earlier, was Patterson's immediate supervisor. When I.H. Services lost its contract with J.P. Stevens, I.H. Services transferred Davis to another plant where she continued her employment with I.H. Services. The trial judge...