Torrence v. S.C. Dep't of Corr., Appellate Case No. 2016-000285

CourtCourt of Appeals of South Carolina
Citation433 S.C. 633,861 S.E.2d 36
Decision Date30 June 2021
Docket NumberAppellate Case No. 2016-000285,Opinion No. 5829

433 S.C. 633
861 S.E.2d 36

Thomas J. TORRENCE, Respondent,

Appellate Case No. 2016-000285
Opinion No. 5829

Court of Appeals of South Carolina.

Submitted May 26, 2021
Filed June 30, 2021
Rehearing Denied August 4, 2021

Lake E. Summers, of Malone, Thompson, Summers & Ott, LLC, of Columbia, for Appellant.

Thomas J. Torrence, pro se.


The South Carolina Department of Corrections (the Department) appeals two orders of the administrative law court (the ALC), which reversed the Department's final decision in the matter of inmate Thomas Torrence's grievance and remanded the case back to the Department to calculate and pay wages to Torrence in accordance with the Prevailing Wage Statute.1 On appeal, the Department argues the ALC erred by: (1) finding Torrence timely filed the grievance at issue, (2) finding the doctrine of equitable tolling applied to Torrence's grievance, (3) calculating the prevailing wage in its order, and (4) finding the Department erred by failing to allow Torrence to designate persons or authorities under section 24-3-40 of the South Carolina Code.2 We affirm on the submitted briefs.3


Torrence is currently serving a life sentence without the possibility of parole. Between June 1997 and November 2004, Torrence participated in the prison industries service project (PIP) operated at Evans Correctional Institution. During this time, Torrence performed work for Insilco Global Industries/ESCOD

861 S.E.2d 39

(ESCOD). For the first 320 hours of Torrence's labor, the Department paid him a "training wage" of $0.25 per hour for the first 160 hours and $0.75 per hour for the remaining 160 training hours. After the completion of his training period, the Department paid Torrence a wage of $5.25 per hour and $7.86 per hour for overtime.

In 2001, Torrence and other inmates filed a class action suit against the Department in the circuit court, seeking a declaratory judgment finding the Department violated South Carolina law by (1) improperly diverting portions of inmate wages, (2) paying inmates less than the prevailing wage, and (3) preventing immediate distribution of inmate wages placed in escrow. Pursuant to Wicker4 and Adkins ,5 the circuit court granted the Department's motion to dismiss, and Torrence appealed. The South Carolina Supreme Court subsequently affirmed the circuit court's dismissal, holding inmates do not have a private right of action against the Department but do have a right to pursue their claims through the Department's internal grievance procedure. See Torrence v. S.C. Dep't of Corr. , 373 S.C. 586, 593-95, 646 S.E.2d 866, 869-70 (2007).

On May 21, 2007, Torrence submitted a step one grievance raising eight grounds "objecting to the Department's payment, disbursement, and retention of wages" for his work under PIP. Specifically, Torrence argued the Department violated state law by paying him an hourly wage below the prevailing wage in the industry. Torrence argued he was entitled to the difference between his wage and the prevailing wage for his work performed for ESCOD both during and after his training period as well as for any overtime hours. Torrence additionally argued the Department deprived him of his property rights by denying him the option of designating persons or entities to receive immediate distribution of his wages placed in escrow pursuant to section 24-3-40 of the South Carolina Code. Torrence argued that because he was serving a life sentence, he should be allowed to designate persons or entities to receive the escrowed wages for "his personal benefit." On December 1, 2011, the Department denied Torrence's claims, finding Torrence failed to timely file his grievance "within either seven ... days or even [fifteen] days of the incident upon which [he] anchored the claims ... presented in [his] [s]tep [one]" as required by Paragraph 13.1 of the Department's Policy GA-01.12.6 On December 5, 2011, Torrence appealed the Department's decision in a step two grievance, which raised the same grounds as his step one. Additionally, in his step two, Torrence argued the Department erred in finding he failed to timely file his step one because (1) the class action lawsuit, which was filed four years before Wicker , tolled the statute of limitations and (2) he filed his step one "immediately" after receiving notice of the supreme court's decision. On February 9, 2012, the Department reiterated its response to Torrence's step one and denied his step two.

On May 7, 2012, Torrence appealed to the ALC. The ALC subsequently bifurcated the issues on appeal to determine the timeliness of Torrence's grievance before reaching the merits of his case. On January 30, 2014, the ALC issued an order finding Torrence timely filed his step one. In its order, the ALC found Torrence timely filed his step one because Torrence's claims fell within Paragraph 13.9 of the Department's Policy GA-01.12, which provides "[e]xceptions to the [fifteen-]day time limit requirement will be made for grievances concerning policies/procedures." The ALC noted,

The Inmate Grievance System Policy fails to define either "incident" or "policies/procedures." ... Based on the "plain and ordinary meaning" of both of these words, it is clear that an incident would be a one-time, specific event, and a policy would be continuous course of action. In the present case, it was not a one-time event, in which [Torrence] was not paid a prevailing wage.
861 S.E.2d 40
The Department continuously failed to pay [Torrence] a prevailing wage. Therefore, the grievance involved is related to a policy or procedure.


Prior to the Wicker opinion issued by the [s]upreme [c]ourt, the Department maintained that wage issues were not grievable under the internal grievance system.... Thus, any attempt by [Torrence] to file a grievance prior to August 22, 2004[,] would have been futile. By that time, [Torrence's] lawsuit initiated as a class action in [the c]ircuit [c]ourt was pending ..., representing ongoing litigation between these same parties over the same issue. [Torrence] filed his grievance within fifteen days of the date the [s]upreme [c]ourt issued its decision in his case ....

The ALC additionally found Torrence timely filed his step one because his grievance "present[ed] the type of extraordinary circumstances in which fairness demands that the doctrine of equitable tolling be applied." The ALC further stated it would address the merits of Torrence's claims upon receiving the parties’ briefs.

On January 21, 2016, the ALC issued its order addressing the merits of Torrence's claims. In its order, the ALC found the Department erred by failing to pay Torrence the prevailing wage for his labor pre- and post-training, stating "there is no construction of law under which the Department could pay [Torrence] less than the prevailing wage." The ALC further stated, "The question then becomes, what is the ‘prevailing wage’ that must be paid for all hours worked in both the training period and thereafter?" Addressing this question, the ALC stated,

The [PIP] Guideline ... states that the prevailing wage must be obtained from the state agency that determines wage rates.... In South Carolina, this agency would have been the Employment Security Commission (ESC) at the times relevant to this case, but would now be the Department of Employment and Workforce (DEW).

The ALC continued,

The Department cites a [c]ircuit [c]ourt order in another case as support for the theory that [s]ection [24-3]-410, and not [s]ection [24-3]-430, governs the wage standard applicable in this case. Not only is this [c]ircuit [c]ourt order not binding, the argument for which it is cited contradicts the statements of the higher courts in this state. This [c]ourt declines to further address the argument that only [s]ection [24-3]-410 applies, noting that the South Carolina Supreme Court has already stated that the program at issue in this case operated under [s]ection 24-3-430.

The ALC continued, "While the [c]ourt agrees that verification of wage rates by the ESC is the method for determining the prevailing wage that the federal [g]uideline and state statutes contemplate, the [c]ourt does not agree that the $5.25 regular hourly rate conforms to the ESC data in the record." The ALC stated,

[Torrence] has asked this [c]ourt to determine the prevailing wage based on the record in this case. In so doing, the [c]ourt reaches an issue not yet addressed by South Carolina courts. While it has been decided that the Department may not pay less than the prevailing wage during training, no inmate has successfully raised the issue of how the prevailing wage is calculated.

In calculating the prevailing wage, the ALC interpreted section 24-3-430 of the South Carolina Code (2007). The court stated,

The Merriam-Webster Dictionary defines "prevail" as "to be frequent: predominate." ... Predominate is defined as "to hold advantage in numbers or quantity." ... The affidavit in the record of Rebecca Eleazor of the ESC supports the conclusion that the "average" wage in South Carolina for a given occupational category would be the ordinary interpretation of the statutory phrase prevailing wage. The [c]ourt therefore concludes that the "prevailing wage" equals the mean average

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