Wallace v. Milliken & Co.

• Decision Date: 05 December 1989
• Docket Number: No. 1448,1448
• Citation: 300 S.C. 553,389 S.E.2d 448
• Court: South Carolina Court of Appeals
• Parties: , 5 IER Cases 38 Jimmy WALLACE, Respondent, v. MILLIKEN & COMPANY, Appellant. . Heard

Page 448

389 S.E.2d 448

300 S.C. 553, 5 IER Cases 38

Jimmy WALLACE, Respondent, v. MILLIKEN & COMPANY, Appellant.

No. 1448.

Court of Appeals of South Carolina.

Heard Dec. 5, 1989.

Decided Jan. 8, 1990.

John P. Mann and M. Lee Daniels, Jr. of Thompson, Mann & Hutson, Greenville, for appellant.

William G. Rhoden, Gaffney, for respondent.

GOOLSBY, Judge:

This is a retaliatory discharge action brought by Jimmy Wallace against Milliken & Company pursuant to Section 41-1-80 of the South Carolina Code of Laws (1976 &amp Supp.1988). ¹ The trial judge, sitting without a jury, found in Wallace's favor. He awarded Wallace $12,500.69 in lost wages and ordered him reinstated. Milliken appeals. We affirm.

The questions on appeal relate to the standard of review, the sufficiency of the evidence as to retaliatory discharge, the burden of proof regarding an affirmative defense allowed by Section 41-1-80, the trial judge's denial of Milliken's motion for involuntary dismissal, and the trial judge's determination of lost wages awarded Wallace.

Milliken hired Wallace on July 22, 1986 as a Topaz machine operator. Wallace severely injured his hand on September 10, 1986, while operating a Calendar machine. A workers' compensation claim was immediately filed. After being hospitalized and undergoing several operations, Wallace returned to work on December 15, 1986. Milliken fired him the same day.

This action followed.

Wallace alleges that Milliken discharged him because he instituted a workers' compensation proceeding. Milliken, on the other hand, alleges that it fired Wallace because he violated safety rules.

I.

Milliken contends that a retaliatory discharge action brought under Section 41-1-80 is an equity action and that, accordingly, the standard of review is the one used in equity cases tried by a single judge.

An action created by statute is generally considered a law action unless the statute provides otherwise or the nature of the relief permitted by the statute is clearly equitable. 1A C.J.S. Actions Sec. 126 at 539 (1985).

Here, Section 41-1-80, the statute creating the action brought by Wallace, allows a wrongfully-discharged employee to recover only "lost wages" and "reinstatement." Relief in the form of "lost wages" is generally considered equitable in nature. See Equal Employment Opportunity Commission v. Detroit Edison Co., 515 F.2d 301 (6th Cir.1975), vacated on other grounds, 431 U.S. 951, 97 S.Ct. 2669, 53 L.Ed.2d 267 (1977) (back pay recoverable under Title VII of the Civil Rights Act, 42 U.S.C. Secs. 2000e et seq. (1982), seen as restitution and not as damages); 77 C.J.S. Restitution at 322 (1952) (restitution is an equitable principle); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir.1969) (in an action brought under Title VII, a demand for back pay is not in the nature of a claim for damages but is an integral part of the statutory equitable remedy). Relief in the form of "reinstatement" is similarly viewed. See Smith v. Hampton Training School for Nurses, 360 F.2d 577, 581 n. 8 (4th Cir.1966) (reinstatement is an equitable remedy).

We therefore hold that an action brought pursuant to Section 41-1-80 is an equitable action. Brunecz v. Houdaille Industries, Inc., 13 Ohio App. 3d 106, 468 N.E.2d 370 (1983); see Kofoid v. Woodard Hotels, Inc., 78 Or.App. 283, 716 P.2d 771 (1986) (a statutory action for employment discrimination viewed as equitable where the statute creating the action, OR.REV.STAT. Sec. 659.121 (1983), permitted "injunctive ... and ... other equitable relief ..., including but not limited to reinstatement [and] back pay." ); cf. Patterson v. I.H Services, 295 S.C. 300, 368 S.E.2d 215 (Ct.App.1988) (Section 41-1-70, which creates a cause of action for wrongful discharge of an employee who complies with a subpoena and allows a claimant to seek "damages," rather than lost wages or reinstatement, viewed as a law action); N.C.GEN.STAT. Sec. 97-6.1 (1985) (North Carolina statute, which creates a cause of action for retaliatory discharge, authorizes both legal and equitable relief by allowing a claimant to seek "reasonable damages" and reinstatement).

II.

Milliken maintains that the evidence is insufficient to support a finding of retaliatory discharge because the preponderance of the evidence does not show it discharged Wallace for instituting a workers' compensation proceeding.

Since this is an equity case tried by a judge without a reference, we have jurisdiction to find facts in accordance with our own view of the preponderance of the evidence. Fryar v. Currin, 280 S.C. 241, 312 S.E.2d 16 (Ct.App.1984). Even so, we are not required to ignore the trial judge's findings. Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct.App.1985). After all, the trial judge occupies a much better position than do we to evaluate the credibility of witnesses. Thompson v. Brunson, 283 S.C. 221, 321 S.E.2d 622 (Ct.App.1984). In an equity case, the appellant bears the burden of convincing the reviewing court that the trial judge erred in his findings of fact. Inabinet v. Inabinet, 236 S.C. 52, 113 S.E.2d 66 (1960).

For a claimant to prevail in a retaliatory discharge action brought under Section 41-1-80, the claimant must prove by a preponderance of the evidence that his instituting of a workers' compensation proceeding was a substantial factor in bringing about his discharge. See J. Love, Retaliatory Discharge for Filing a Workers' Compensation Claim: The Development of a Modern Tort Action, 37 Hastings L.J. 551 at 571 (1986) ("It is preferable to require the plaintiff to prove that the filing of a workers' compensation claim was either a 'substantial factor' or a 'determinative factor' in causing the discharge." ); RESTATEMENT (SECOND) OF TORTS Sec. 431 at 428 (1965) ("The actor's negligent conduct is a legal cause of harm to another ... if his conduct is a substantial factor in bringing about the harm...." ). Under this test, the claimant must establish that retaliation was an important factor motivating his discharge. J. Love, supra at 571; 2A LARSON, WORKMEN'S COMPENSATION Sec. 68.36(c) at 13-186 (1989) ("[T]he normal rule would presumably be that the prima facie case would be made by a showing that the claim was a cause of the discharge." ). The claimant need not show that the employer discharged him "solely" because of the workers' compensation claim. Cf. HAWAII REV.STAT. Sec. 378-32(2) (1976 & Supp.1984) and MD.ANN.CODE art. 101, Sec. 39A(a) (1979) (statutes requiring the employee to show his firing was due "solely" to the workers' compensation claim). Because it is highly unlikely that an employer will declare retaliation as the motive for discharge, the claimant must ordinarily rely on circumstantial evidence. 2A LARSON, supra at 13-187.

We are satisfied, given the trial judge's implicit findings regarding credibility, that Wallace established by a preponderance of the evidence that retaliation for Wallace's exercise of his rights under the Workers' Compensation Act was an important factor motivating his discharge.

Wallace injured his hand on September 10, 1986. Milliken fired him on December 15, 1986, his first day back at work. Between those dates, Wallace, who owned an unblemished safety and disciplinary record before he was injured, was accorded workers' compensation benefits. Although Milliken made the decision to fire Wallace sometime before he returned to work, it did not inform him of its decision until then. Had Milliken, as it claims, discharged Wallace solely because he violated safety rules, a charge Wallace denies, it would have told Wallace he was fired immediately upon concluding its investigation into his accident. Milliken would not have waited until Wallace returned to work in December, considering the emphasis Milliken says it places on safety awareness and accident prevention and considering what the record suggests Milliken does in other cases involving employee violations of its safety rules.

We do not ignore Milliken's contention regarding its assertion that Wallace neither instituted nor caused to be instituted a workers' compensation proceeding. It bases this contention on Wallace's admission that Milliken filed Wallace's workers' compensation claim for him. Other testimony revealed that whenever an employee is injured on the job the plant nurse fills out an "industrial commission [sic ] report" and sends the report to Liberty Mutual Insurance Company, Milliken's workers' compensation insurance carrier.

An employer's filing of a claim for an injured employee, however, does not preclude the employee from bringing an action under Section 41-1-80. "[A] proceeding under the South Carolina Workers' Compensation [Act]" is instituted where, as here, the employer's workers' compensation insurance carrier pays for the employee's medical expenses and pays the employee his average weekly wage "in accordance with the provisions" of the Act before he is discharged. See Roseborough v. N.L. Industries, 10 Ohio St. 3d 142, 462 N.E.2d 384, 387 (1984) (for the purposes of the Ohio retaliatory discharge statute, OHIO REV.CODE ANN. Sec. 4123.90 (Page 1980), a workers' compensation proceeding for medical expense benefits has been "instituted" if an employer has paid for medical care provided to an injured employee); Webb v. Dayton Tire & Rubber Co., etc., 697 P.2d 519, 524 (Okla.1985) (the receipt of medical treatment and commencement of temporary compensation under the Workers' Compensation Act constitutes "institution of a proceeding for purposes of ... the Workers' Compensation Act." ).

III.

We find no error in the trial judge's requiring Milliken to prove by a preponderance of the evidence that it discharged Wallace for violating a safety rule.

Milliken pled as a third and...