Wallace v. Milliken & Co., No. 1448

CourtCourt of Appeals of South Carolina
Writing for the CourtGOOLSBY; SANDERS, C.J., and GARDNER
Citation300 S.C. 553,389 S.E.2d 448
Parties, 5 IER Cases 38 Jimmy WALLACE, Respondent, v. MILLIKEN & COMPANY, Appellant. . Heard
Decision Date05 December 1989
Docket NumberNo. 1448

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.

[300 S.C. 554] 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 &

Page 449

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[300 S.C. 555] 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 [300 S.C. 556] 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.

Page 450

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).

[300 S.C. 557] For a claimant to prevail in a...

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16 practice notes
  • Wallace v. Milliken & Co., No. 23427
    • United States
    • United States State Supreme Court of South Carolina
    • January 8, 1991
    ...William G. Rhoden, Gaffney, for respondent. CHANDLER, Justice: We granted certiorari to review the Court of Appeals' decision reported at 300 S.C. 553, 389 S.E.2d 448 On July 22, 1986, Respondent, Jimmy Wallace (Wallace), was hired by Petitioner, Milliken & Company (Milliken), as an industr......
  • Branco v. Hull Storey Retail Group, LLC, 2021-UP-009
    • United States
    • Court of Appeals of South Carolina
    • January 13, 2021
    ...of the application of the law." Id. Preservation of All Issues As an initial matter, Respondents, citing Wallace v. Milliken & Co., 300 S.C. 553, 389 S.E.2d 448 (Ct. App. 1990), aff'd as modified, 305 S.C. 118, 406 S.E.2d 358 (1991), contend that none of the issues raised by Appellants on a......
  • Branco v. Hull Storey Retail Grp., Appellate Case No. 2017-000998
    • United States
    • Court of Appeals of South Carolina
    • January 13, 2021
    ...of the application of the law." Id.Preservation of All IssuesAs an initial matter, Respondents, citing Wallace v. Milliken & Co., 300 S.C. 553, 389 S.E.2d 448 (Ct. App. 1990), aff'd as modified, 305 S.C. 118, 406 S.E.2d 358 (1991), contend that none of the issues raised by Appellants on app......
  • Campbell v. Bi-Lo, Inc., BI-L
    • United States
    • Court of Appeals of South Carolina
    • February 19, 1990
    ...is entitled to be reinstated to his former position. The burden of proof is on the employee. [301 S.C. 454] In Wallace v. Milliken, 389 S.E.2d 448 (S.C.Ct.App.1990), we stated that the statute allows a wrongfully discharged employee to recover only lost wages and reinstatement. We suggested......
  • Request a trial to view additional results
16 cases
  • Wallace v. Milliken & Co., No. 23427
    • United States
    • United States State Supreme Court of South Carolina
    • January 8, 1991
    ...William G. Rhoden, Gaffney, for respondent. CHANDLER, Justice: We granted certiorari to review the Court of Appeals' decision reported at 300 S.C. 553, 389 S.E.2d 448 On July 22, 1986, Respondent, Jimmy Wallace (Wallace), was hired by Petitioner, Milliken & Company (Milliken), as an industr......
  • Branco v. Hull Storey Retail Group, LLC, 2021-UP-009
    • United States
    • Court of Appeals of South Carolina
    • January 13, 2021
    ...of the application of the law." Id. Preservation of All Issues As an initial matter, Respondents, citing Wallace v. Milliken & Co., 300 S.C. 553, 389 S.E.2d 448 (Ct. App. 1990), aff'd as modified, 305 S.C. 118, 406 S.E.2d 358 (1991), contend that none of the issues raised by Appellants on a......
  • Branco v. Hull Storey Retail Grp., Appellate Case No. 2017-000998
    • United States
    • Court of Appeals of South Carolina
    • January 13, 2021
    ...of the application of the law." Id.Preservation of All IssuesAs an initial matter, Respondents, citing Wallace v. Milliken & Co., 300 S.C. 553, 389 S.E.2d 448 (Ct. App. 1990), aff'd as modified, 305 S.C. 118, 406 S.E.2d 358 (1991), contend that none of the issues raised by Appellants on app......
  • Campbell v. Bi-Lo, Inc., BI-L
    • United States
    • Court of Appeals of South Carolina
    • February 19, 1990
    ...is entitled to be reinstated to his former position. The burden of proof is on the employee. [301 S.C. 454] In Wallace v. Milliken, 389 S.E.2d 448 (S.C.Ct.App.1990), we stated that the statute allows a wrongfully discharged employee to recover only lost wages and reinstatement. We suggested......
  • Request a trial to view additional results

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