VOLUME I Chapter 6 Retaliatory Discharge

• Jurisdiction: South Carolina

Chapter 6 Retaliatory Discharge¹Joseph D. Dickey, Jr.Dickey Law Group, LLC

I. Overview

As discussed elsewhere in this book, many federal anti-discrimination statutes such as Title VII and the Americans with Disabilities Act (ADA) contain specific anti-retaliation provisions. Other employment-related statutes like the Occupational Safety and Health Act and the Fair Labor Standards Act also prohibit retaliation against employees who file complaints. Although this chapter does not address these statutes, the reader should be aware of the potential for retaliation claims based on federal employment-related statutes.

Retaliation claims based on federal and state constitutional provisions are generally inapplicable to private sector employers because such provisions apply only to government conduct.

This chapter will discuss the types of claims for retaliatory discharge recognized under the statutory and common law of South Carolina. The chapter will primarily focus on retaliation in four particular areas: (1) workers' compensation, (2) jury duty/subpoena compliance, (3) the exercise of political rights, and (4) retaliatory discharge in violation of public policy.

II. Workers' Compensation Retaliation

A. Prohibition

The South Carolina Code of Laws prohibits any employer from discharging or demoting any employee because the employee has instituted, in good faith, any proceeding under the South Carolina Workers' Compensation Law.² This protection extends to individuals who have testified or will testify in a workers' compensation proceeding.³

B. Remedies and Enforcement

The primary enforcement mechanism for the workers' compensation retaliation provision is the private right of action. An employee who has been discharged or demoted in violation of this statute may institute an equitable action against the employer to recover lost wages and to seek reinstatement to his or her former position.⁴ Like plaintiffs in other employment lawsuits, an employee bringing suit under Section 41-1-80 will be required to mitigate his or her damages.⁵ An additional limitation of damages also arises from the fact that future earnings and punitive damages are not recoverable under these retaliation provisions.⁶ The statute of limitations for bringing a claim pursuant to Section 41-1-80 is one year.

An employee can state a prima facie case under Section 41-1-80 by producing evidence of satisfactory work performance and a close temporal relationship between the adverse employment action and the workers' compensation proceeding.⁷ However, proximity in time, by itself, will be insufficient to overcome an employer's legitimate, non-discriminatory reason for the discharge.⁸ The employee bears the burden of establishing by a preponderance of the evidence that he or she would not have been demoted or discharged "but for" the institution of a workers' compensation claim.⁹

C. Statutory Defenses

Section 41-1-80 provides the employer with several affirmative defenses. If the employer can prove the existence of one of these defenses by a preponderance of the evidence, then the employee's claim must fail. The employer does not have to prove any causal connection between the discharge and the affirmative defense.¹⁰ The affirmative defenses to an action under this section include the following:

• Willful or habitual tardiness or absence
• Disorderly conduct or intoxication at work
• Destruction of company property
• Embezzlement or larceny of employer's property
• Malingering
• Failure to meet established work standards
• Violation of written company policy

An employer relying on an employee's failure to meet established work standards must understand the potential implications of the ADA. If an employee is unable to meet these work standards as a result of a qualifying disability, then the employer may have an affirmative duty to make reasonable accommodations to help the employee perform the essential functions of the job.

The South Carolina Supreme Court has held that Section 41-1-80 does not force an employer to give an employee time to rehabilitate before discharging him or her for failure to perform the job.¹¹ However, proximity in time between a workers' compensation claim and discharge may be evidence of retaliatory motive.¹²

D. Additional Defenses

1. Failure to File Claim

An employee's claim for retaliation in violation of Section 41-1-80 may fail as a matter of law if the employee did not file a workers' compensation claim before the discharge.¹³ However, Section 41-1-80 does not require a formal filing of a workers' compensation claim by the employee.¹⁴ The South Carolina Supreme Court has held that other types of conduct will suffice to constitute instituting a proceeding under Section 41-1-80, including: an employer's payment of medical care; an employer's agreement to pay medical care; or the employer's receipt of written notice from an independent health care provider in the form of a bill for medical services rendered to an injured employee.¹⁵

2. Failure to Exhaust Administrative Remedies

In Bennett v. South Carolina Department of Corrections,¹⁶ a former state employee asserted that his termination violated Section 41-1-80. The former employee filed an earlier administrative grievance which resulted in a determination that his discharge was proper. Because the former employee never sought judicial review of this determination, he was precluded from bringing a civil action based upon his discharge.

III. Jury Duty/Compliance with Subpoena

A. Prohibition

Any employer who dismisses or demotes an employee because the employee complies with a valid subpoena to testify in court or in an administrative proceeding or to serve on a jury of any court is subject to a civil action for damages caused by the dismissal or demotion.¹⁷

¹³ Hines, 736 F. Supp. at 677 (plaintiff's claim failed as a matter of law because she did not file a compensation claim until four months after discharge); see also Aughtry v. Richland/Lexington Sch. Dist. 5, C.A. No. 3:07-1892-CMC-PJG, 2009 WL 2257615, *10 (D.S.C. July 29, 2009) (to establish retaliation claim worker must show that a workers' compensation claim was filed); Shaw v. Beaufort County Sheriff s Office, C.A. No. 9:05-3253-SB, 2007 WL 2903940, *34 (D.S.C. Oct. 1, 2007). ("To prove a workers' compensation retaliatory discharge claim under S.C. Code Section 41-1-80, a plaintiff must establish three elements: (1) institution ofworkers' compensation proceedings; (2) discharge or demotion; and (3) a causal connection between the first two elements." (emphasis added)).

B. Damages

Damages for dismissal are limited to one-year's salary or 52 weeks of wages based on a 40-hour week in the amount the employee was making at the time the employee received the subpoena. Damages for demotion are limited to the difference for one year between the salary or wages based on a 40-hour week which the employee received before the demotion and the amount he/she receives after the demotion. Punitive damages are not recoverable under this section.¹⁸

C. Proof of Retaliatory Motive

In Connelly v. Wometco Enterprises, Inc.¹⁹ the Court of Appeals recognized that proximity in time between compliance with a jury duty summons and a discharge from employment can be evidence of a retaliatory motive. Additionally, the court held that evidence of an employee's adequate job performance is relevant to a showing of pretext when the employer asserts job performance as the...