Calvin Barton v. House of Raeford Farms, Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1943
CALVIN BARTON; SHAMIKA CURETON; LATOYA JAMISON; LISA
JAMISON; TERRANCE JOHNSON; KELLY PARDUE; PAULINE WARREN;
ANNA EDENS; ANTONIO MILLER; STACEY JOHNSON; SHERRY PERALTA;
NATASHA ATKINSON; PAMELA VAUGHN; QUASHONDA CHAPMAN; SHIRLEY
BAISEY; BILLY HARRIS; CONSTANCE NEAL,
Plaintiffs - Appellees,
and
JORGE CASTELLANOS; DENISE BLACKWELL; BRIAN BROWNLEE; JOSEPH
HOPKINS; TERESA HARRIS,
Plaintiffs,
v.
HOUSE OF RAEFORD FARMS, INCORPORATED, d/b/a Columbia Farms,
Incorporated,
Defendant - Appellant.
No. 12-1945
SHIREN JOHNSON; SAMANTHA EARL,
Plaintiffs - Appellees,
and
TAWANA BLANDIN; TERESA CALIXTO; ELODIA CARRERA; ERNADID
GARRIBO CASTILLO; LORENA CASTILLO CORRALE; NATALIE DORANTES;
RUFFINA FELIPE; MARIA DOMINGO GOMEZ; SILVIA HERNANDEZ;
LUCIANO HERNANDEZ LEMOS; MATEO FRANCISCO LORENZO; ANGEL
RODRIGUEZ,
Plaintiffs,
v.
HOUSE OF RAEFORD FARMS, INCORPORATED, d/b/a Columbia Farms,
Incorporated,
Defendant - Appellant.
No. 12-1946
JACKIE BLAND; TAMORTHA BRUSTER; MYRTLE BRYSON; ANTONIO
BURTS, a/k/a Antonio Burch; STEVEN CASE,
Plaintiffs - Appellees,
v.
HOUSE OF RAEFORD FARMS, INCORPORATED, d/b/a Columbia Farms,
Incorporated,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Greenville. J. Michelle Childs, District
Judge. (6:09-cv-01901-JMC; 6:09-cv-03137-JMC; 6:10-cv-00928-
JMC)
Argued: September 18, 2013 Decided: March 11, 2014
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed in part; reversed in part by published opinion. Judge
Niemeyer wrote the opinion, in which Judge Agee joined. Judge
King wrote an opinion concurring in part and dissenting in part.
2
ARGUED: James Larry Stine, WIMBERLY, LAWSON, STECKEL, SCHNEIDER
& STINE, PC, Atlanta, Georgia, for Appellant. Nancy B.
Bloodgood, FOSTER LAW FIRM, LLC, Daniel Island, South Carolina,
for Appellees. ON BRIEF: Elizabeth K. Dorminey, WIMBERLY,
LAWSON, STECKEL, SCHNEIDER & STINE, P.C., Atlanta, Georgia, for
Appellant. Lucy C. Sanders, FOSTER LAW FIRM, LLC, Charleston,
South Carolina, for Appellees.
3
NIEMEYER, Circuit Judge:
Numerous former employees and some current employees of
House of Raeford Farms, Inc., d/b/a Columbia Farms, Inc.,
(“Columbia Farms”), a chicken processor in Greenville, South
Carolina, commenced three separate actions against Columbia
Farms, asserting two types of claims: first, for the payment of
unpaid wages, withheld in violation of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 201 et seq., and the South Carolina
Payment of Wages Act (“S.C. Wages Act”), S.C. Code Ann. §§ 41-
10-10 to -110, and second, for retaliating against them for
instituting workers’ compensation proceedings, in violation of
S.C. Code Ann. § 41-1-80. The district court granted Columbia
Farms’ motion for summary judgment on the unpaid wages claims
under the FLSA but denied it on the unpaid wages claims under
the S.C. Wages Act and the retaliation claims. After the
actions were consolidated, a jury returned a verdict in favor of
16 employees on the S.C. Wages Act claims, awarding them $16,583
in the aggregate, which the district court trebled to $49,749.
The court also awarded attorneys’ fees and costs on these claims
in the amount of $227,640. Following a bench trial on the
retaliation claims, the court found in favor of 8 employees,
ordering that 5 be reinstated and awarding back pay in the
aggregate amount of $131,742.
4
On Columbia Farms’ appeal, we reverse the jury award on the
S.C. Wages Act claims, concluding that those claims were
preempted by § 301 of the Labor Management Relations Act
(“LMRA”), 29 U.S.C. § 185, and should have been dismissed. As
to the retaliation claims under S.C. Code Ann. § 41-1-80, we
reverse as to 6 employees because they failed to present
evidence satisfying the governing legal standards for recovery
under state law. As to the retaliation claims of the remaining
two employees -- Billy Harris and Lisa Jamison -- we affirm.
I
S.C. Wages Act claims
The wages paid to the production and maintenance employees
at Columbia Farms’ plant in Greenville were governed by a
collective bargaining agreement (“CBA”) with the United Food and
Commercial Workers’ Union, Local No. 1996, CLC (“the Union”).
Among other terms, the CBA provided that the basic work day was
8 hours and the basic work week was 40 hours, and it spelled out
the hourly rates of pay for the different classes of employees.
With respect to those rates, the CBA noted that in November
2004, Columbia Farms and the Union had negotiated a change to
the company’s “meal and rest policy” in exchange for a one-time
3.1% raise to the affected employees’ hourly rate. Under the
revised policy, instead of receiving “an unpaid lunch period and
5
paid breaks,” employees were to receive one “unpaid meal period
and [one] unpaid rest period per day, totaling approximately
sixty (60) minutes, [with] the allocation between the meal and
rest periods to be allocated by the Company.” The CBA also
specified that Columbia Farms would maintain “[a] daily record .
. . with the use of adequate time clocks at each plant” and that
“[t]he Union [would] have the right to examine time sheets and
any other records pertaining to the computation of compensation
of any employee whose pay [was] in dispute.” Columbia Farms
further agreed “not to enter into any other Agreement or
contract with its employees, individually or collectively, which
in any way conflict[ed] with the terms and provisions of this
Agreement.” Finally, the agreement established a grievance
procedure with respect to any dispute “aris[ing] over the
interpretation” of the CBA and provided for arbitration for any
grievance that could not be settled.
The CBA did not expressly specify how employees’
compensable time would be calculated, but Columbia Farms had a
long-standing practice of paying its production employees based
on “line time” -- that is, the time actually spent by employees
processing chickens on the production line. “Line time” did not
include time spent donning and doffing protective gear, walking
to and from the production area, or washing gear before and
after work. Columbia Farms stopped the production line for two
6
30-minute periods per shift to provide employees with meal
breaks, which, under the CBA, were not counted as compensable
time.
When new employees were hired, they were given a form at
orientation entitled “Terms of Employment,” which indicated that
its purpose was to notify employees “of the terms of
employment,” as required by South Carolina Code § 41-10-30. The
form was filled out to specify each worker’s hourly rate of pay
and, in a blank next to “hours of work,” the general hours for
that worker’s scheduled shift -- for example, 9 a.m. to 6 p.m.
Columbia Farms also gave its new employees an Employee
Handbook, which, in a section on “Time Card Administration,”
stated that “[t]he purpose of the time card is to insure an
accurate record of all hours you work in order for you to
receive correct payment of wages”; that “[y]ou are required to
punch in and out on your own time card according to your
schedule”; and that “[i]t is our policy that all work performed
by you will be while you are ‘on the clock.’” The Handbook
further specified that “[y]ou must be dressed for work when
punching in or out”; that “[e]mployees are to be at their
workstations ready and dressed for work at their scheduled
starting time and are to remain at their workstations until the
scheduled quitting time”; and that “[y]ou will be paid for all
time worked per your schedule.” The Handbook also stated that
7
employees would receive two 30-minute lunch breaks during each
shift.
According to a number of former employees who testified at
trial, Columbia Farms never informed them when they were hired
that their hours would be based on “line time,” as distinct from
“clock time.” These employees stated that, instead, they were
told at orientation that they would be working a set nine-hour
shift and that they would be paid based on when they clocked in
and out for that shift. Although some acknowledged that they
were also told that their two 30-minute lunch breaks would be
unpaid, they estimated that they ended up having only 10 to 20
minutes in the break room during each break because of the time
it took to walk to and from the break room, to don and doff
protective clothing, and to wash up.
In 2009, a group of the Greenville plant’s former
employees, as well as a few of its current employees, all of
whom were members of the bargaining unit covered by the CBA,
sued Columbia Farms for wages due, based on the FLSA and the
S.C. Wages Act, asserting that they should have been paid for
the time they spent donning and doffing protective gear and
preparing for work. They also asserted that because their
actual break time was less than 20 minutes, Columbia Farms was
required, in accordance with federal regulations, to compensate
them for that time. Their claims under the S.C. Wages Act
8
included allegations that Columbia Farms failed to notify them
in writing as to the hours they would be working when they were
hired.
The district court granted Columbia Farms’ motion for
summary judgment on the plaintiffs’ FLSA claims, based on
Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209 (4th Cir.
2009), which held that donning and doffing protective gear at a
poultry processing plant constituted “changing clothes” within
the meaning of 29 U.S.C. § 203(o) and that employers and unions
could address whether such time would be compensated through
collective bargaining. The district court in this case
concluded that because Columbia Farms, like the employer in
Sepulveda, had a long-standing practice under a bona fide
collective bargaining agreement of paying its employees based on
“line time,” the plaintiffs were not entitled to compensation
for the time spent donning and doffing protective gear. The
court also granted Columbia Farms’ motion for summary judgment
on plaintiffs’ similar claims under the S.C. Wages Act “[t]o the
extent that those claims ar[o]se from Columbia Farms’s failure
to pay Plaintiffs for their time spent donning and doffing
sanitary and protective gear.” Atkinson v. House of Raeford
Farms, Inc., No. 6:09-cv-01901-JMC, 2011 WL 1526605, at *5
(D.S.C. Apr. 20, 2011).
9
With respect to whether Columbia Farms had complied with
the S.C. Wages Act in providing required written notices, giving
adequate breaks, providing accurate pay statements, and paying
full wages due when employees were terminated, the district
court denied Columbia Farms’ motion for summary judgment,
concluding that “there appeared to be genuine issues of material
fact regarding whether Columbia Farms complied with [the Act].”
Atkinson, 2011 WL 1526605, at *5. Those claims, accordingly,
were presented to a jury.
Before trial, Columbia Farms contended that the plaintiffs’
S.C. Wages Act claims were preempted by § 301 of the LMRA,
arguing that the plaintiffs’ efforts to collect allegedly unpaid
wages under the state statute necessarily implicated the CBA and
therefore should have been dismissed. The district court
rejected the argument, ruling that the plaintiffs could prevail
on their S.C. Wages Act claims by proving (1) that they were not
notified at the time of employment that they would be paid “line
time” and were instead led to believe that they would be paid
“clock time;” (2) that this understanding became part of the
agreed-upon terms and conditions of their employment; and (3)
that Columbia Farms had failed to honor this agreement and
therefore owed them unpaid wages for the difference between
“clock time” and “line time.” The district court thus held that
the S.C. Wages Act claims were not preempted because the
10
plaintiffs’ theory of recovery did not depend on the meaning of
the CBA but on the alleged breach of separate agreements to pay
“clock time.”
The jury returned a verdict in favor of 16 plaintiffs,
awarding them unpaid wages ranging from $53 to $2,433, for a
total of $16,583. And the district court trebled the damages,
as authorized by state law, to $49,749, finding that no bona
fide dispute existed regarding the wages the plaintiffs were
due. The court explained:
Columbia Farms had a practice of paying its employees
according to line time; however, neither the CBA nor
the terms of employment provided to Plaintiffs
indicated that employees were to be paid according to
line time. At trial, Plaintiffs presented evidence
that Columbia Farms led them to believe that they
would be paid based on the amount of hours that they
were clocked-in at work. . . . Accordingly, to the
extent the jury found that Columbia Farms did not pay
all wages due to Plaintiffs, the court finds that no
bona fide dispute existed as to the payment of those
wages.
Atkinson v. House of Raeford Farms, Inc., No. 6:09-cv-01901-JMC,
2012 WL 2871747, at *3 (D.S.C. July 12, 2012). The court also
awarded prejudgment interest, pursuant to S.C. Code Ann. § 34-
31-20(A), and attorneys’ fees and costs in the amount of
$227,640.
Workers’ compensation retaliation claims
A group of former employees also alleged that Columbia
Farms had violated their rights under S.C. Code Ann. § 41-1-80,
11
which prohibits employers from retaliating against employees who
have instituted workers’ compensation proceedings.
Following a bench trial, the district court found in favor
of eight employees, concluding that their employment had been
terminated because they had instituted workers’ compensation
proceedings. Atkinson v. House of Raeford Farms, Inc., 874 F.
Supp. 2d 456, 483 (D.S.C. 2012).
The court found that Columbia Farms carried out its
retaliation in the context of a “point system” designed to
enforce its attendance policy at its Greenville plant. Under
the point system, employees who reached a total of five points
were fired -- points were accumulated by the failure to follow
the attendance policy and subtracted when an employee worked for
30 days without receiving any new points. Thus, employees who
arrived late to work, returned to work late after a break, or
left work early received half a point. Employees who missed
work Tuesday through Friday received one point, and employees
missing work Saturday through Monday received a point and a
half. If an employee provided Columbia Farms with two days’
notice and a medical excuse for an absence, the employee
received no points. If an employee provided the medical excuse
but not the required advanced notice, the employee received one
point for the entire medically excused absence, even if it was
longer than one day. But, as the district court noted, “[a]n
12
employee did not receive any points for workers’ compensation
injuries, absences, or approved doctor’s visits when the
employee visited the company doctor.” Atkinson, 874 F. Supp. 2d
at 462.
Teresa Taylor, Columbia Farms’ plant nurse, was authorized
to make the decision whether to send employees to the company
doctor for medical treatment, and she did not do so when she
thought their injuries required only first aid or were not work
related. In this vein, Taylor concluded that an employee’s
overuse of her hands on the production line amounted to “sore
hands,” which were to be treated as a matter of first aid.
Accordingly, for such complaints, she did not complete a
workers’ compensation form. While employees with workers’
compensation injuries or restrictions received accommodation,
such as light duty, employees “with injuries or restrictions
that were not considered to be related to a workers’
compensation injury were not permitted to return to work until
the employee provided Columbia Farms with a doctor’s note
stating that the employee had no medical restrictions.”
Atkinson, 874 F. Supp. 2d at 463.
Trial testimony indicated that supervisors at the plant
kept a list of employees who frequently visited the nurse’s
office or who went to a private doctor for medical care. For
example, one shift manager testified that he had received lists
13
from the nurse’s office with the names of employees who had
worked less than 60 days and had been to the nurse’s office
multiple times.
Six of the plaintiffs -- Natasha Atkinson, Anna Edens,
Shiren Johnson, Shirley Baisey, Tamortha Bruster, and Steven
Case -- testified at trial that they had visited the nurse’s
station complaining of sore or injured hands and were given
first aid treatment, such as gauze, topical pain reliever,
ibuprofen, and hand massages. Five of the six had requested
permission to visit the company doctor, but Taylor denied their
requests. Instead, they visited private doctors or emergency
rooms, receiving notes stating that they were unable to work for
a specified period of time or that placed other restrictions on
their ability to work. Taylor told several of these employees
that they would not be allowed to return to work until they
could provide a doctor’s note saying that they could work
without restrictions. When three of the employees -- Atkinson,
Edens, and Johnson -- were unable to obtain such notes, their
employment was terminated. The others -- Baisey, Bruster, and
Case -- were given attendance points based on absences for which
they had a doctor’s note, and when those points were combined
with other points that they had accumulated, their totals
reached five points or more, leading to their discharge. The
district court found that if Taylor had considered their
14
injuries to be work related and accordingly had allowed them to
visit the company doctor, these employees would not have
accumulated the final points that caused their discharge.
The two other prevailing plaintiffs -- Billy Harris and
Lisa Jamison -- sustained workplace injuries that Columbia Farms
acknowledged as such. Harris fell down the stairs while at work
and injured his back, and Jamison slipped and fell at work,
injuring her back, hip, neck, and shoulder. Both were seen by
the company doctor.
The doctor placed Harris on light duty for several weeks,
and Columbia Farms made an accommodation for this restriction,
giving Harris different job responsibilities. The doctor
eventually released Harris to full duty, but told him to visit
the nurse’s station if his back began to hurt. While working on
the production line, Harris began experiencing pain and so told
his supervisor. The district court credited Harris’s testimony
that he eventually received his supervisor’s permission to leave
the line to visit the nurse’s station. When he reached the
nurse’s station, however, the plant’s human resources manager
was waiting for him and told him that he was being fired for
leaving the line without permission. After he was fired, Harris
continued receiving treatment from the company doctor, and an
MRI showed that he had a bulging disc. Harris acknowledged that
from the time of his discharge in July 2009 until at least
15
February 2010, he could not have performed his normal job at
Columbia Farms due to medical restrictions given to him by the
company doctor.
Similarly, Columbia Farms’ doctor placed Jamison on light
duty after her fall at work in May 2009. She testified that “a
supervisor at Columbia Farms told her that Taylor was going to
get her fired because of her injury.” Atkinson, 874 F. Supp. 2d
at 471. Jamison submitted notes from the company doctor setting
forth her work restrictions and advising that she take frequent
breaks from the use of her shoulder, which she understood to
mean that she should walk around to loosen up her shoulder or go
to the nurse’s station when she began having pain. In Jamison’s
presence, Taylor called the company doctor to verify that
Jamison could take breaks as needed.
A few weeks after Jamison filed a workers’ compensation
claim, the human resources manager found Jamison outside her
assigned work area on three occasions and fired her, stating
that she had taken excessive breaks. The district court
credited Jamison’s testimony that each time the human resources
manager saw her, she was on her way back from the nurse’s
station. After her discharge, Jamison began collecting social
security payments for a disability unrelated to her work at
Columbia Farms. At trial in November 2011, however, Jamison
16
testified that she had been physically able to go back to her
old job at Columbia Farms for approximately nine months.
Based on the factual circumstances presented, the district
court concluded that Columbia Farms violated S.C. Code Ann. §
41-1-80 (prohibiting employers from discharging or demoting
employees who have in good faith “instituted” a “proceeding
under the South Carolina Workers’ Compensation Law”). To
determine whether the plaintiffs had “instituted” a workers’
compensation proceeding, the court applied the following test:
[W]hile the mere seeking and receiving of medical
treatment is not sufficient to constitute the
institution of a workers’ compensation claim, an
employee’s seeking or receiving of medical treatment
from the employer accompanied by circumstances which
would lead the employer to infer that a workers’
compensation claim is likely to be filed is sufficient
to institute a workers’ compensation proceeding for
the purposes of Section 41-1-80.
Atkinson, 874 F. Supp. 2d at 475. As to Atkinson, Edens,
Johnson, Baisey, Bruster, and Case, the court found that their
“receipt of treatment for their injuries from the nurse’s
office, combined with their requests to visit the company doctor
or Taylor’s representation to them that they had to see a
private doctor, and their submission of documentation to
Columbia Farms showing that they had sought medical care for
their injuries [was] sufficient to constitute the institution of
workers’ compensation proceedings.” Id. at 477 (emphasis
added); see also id. at 478-80.
17
As to the plaintiffs’ burden to prove a causal connection
between their institution of a workers’ compensation proceeding
and the termination of their employment, the court concluded
that eight plaintiffs had also satisfied this element of their
case, explaining:
Section 41-1-80 does not provide an employee with the
right to a reasonable period of time to rehabilitate
from an injury and demonstrate the ability to perform
his job duties. However, where an employer sets forth
the employee’s inability to perform his job duties as
the employer’s reason for terminating the employee,
evidence that the employer had a policy of
accommodating employees with workers’ compensation
injuries, coupled with the employers’ failure to
accommodate the plaintiff may support that plaintiff’s
assertion that the employer’s proffered reason for
termination was mere pretext.
Atkinson, 874 F. Supp. 2d at 476. The court relied on this
principle in finding that these plaintiffs had established the
requisite causal connection between the termination of their
employment and their institution of workers’ compensation
proceedings, rejecting as mere pretext Columbia Farms’
explanation based on application of its attendance policy.
The district court ordered reinstatement as to each of the
five prevailing plaintiffs who had sought it -- Atkinson, Edens,
Johnson, Baisey, and Jamison. It found that Johnson and Jamison
had failed to mitigate their damages and therefore were not
entitled to back wages, but with respect to the remaining
18
prevailing plaintiffs, the court awarded damages ranging from
$1,076 to $55,331, for a total of $131,742.
II
Columbia Farms contends first that the plaintiffs’ claims
under the S.C. Wages Act were preempted by § 301 of the LMRA and
should have been dismissed. It argues that the state statute
provides for an enforcement mechanism designed to ensure that
employees timely receive all the wages to which they are
entitled under an employment contract. As such, it contends,
the plaintiffs’ entitlement to unpaid wages necessarily turned
on the application and construction of the CBA, which
established the terms and conditions of the plaintiffs’
employment at the plant through both its express terms and the
custom and practice that developed under it. Columbia Farms
argues that instead of recognizing that the S.C. Wages Act
claims for unpaid wages were preempted, the district court
improperly allowed the jury to find that the plaintiffs entered
into separate agreements with Columbia Farms as to the manner by
which their compensable time would be calculated, even though
the CBA explicitly prohibited such side agreements.
The plaintiffs contend that, rather than being preempted
under § 301 of the LMRA, the S.C. Wages Act provides remedies
for when an employer “fail[s] to inform [e]mployees in writing
19
at the time of hire how much they would be paid and what hours
they were required to work.” In other words, they maintain that
the S.C. Wages Act is a “notice statute” and that all Columbia
Farms “had to do to comply with the [Act] when it hired
Employees was to indicate in writing that employees were paid
based on ‘line time.’” Because Columbia Farms failed to do that
and instead informed new employees that they would be paid based
on when they clocked in and out, the plaintiffs argue that they
were entitled under the state statute to recover the difference
in their wages between “line time” and “clock time,” regardless
of what the CBA actually provided or the long-standing custom
and practice at the plant had been. They thus argue that their
S.C. Wages Act claims did not depend on the CBA and were
therefore not preempted.
The S.C. Wages Act was designed to “protect employees from
the unjustified and wilful retention of wages by the employer.”
Rice v. Multimedia, Inc., 456 S.E.2d 381, 383 (S.C. 1995). The
Act provides employees in South Carolina with a cause of action
to recover for an employer’s “failure to pay wages due to an
employee as required by Section 41-10-40 or 41-10-50.” S.C.
Code Ann. § 41-10-80(C). In turn, § 41-10-40 directs South
Carolina employers to timely pay their employees “all wages
due,” and § 41-10-50 similarly provides that when a South
Carolina employer discharges an employee, it must timely pay
20
that employee “all wages due.” See also Mathis v. Brown & Brown
of S.C., Inc., 698 S.E.2d 773, 781 (S.C. 2010). The S.C. Wages
Act defines the term “wages” as “all amounts at which labor
rendered is recompensed, whether the amount is fixed or
ascertained on a time, task, piece, or commission basis, or
other method of calculating the amount and includes vacation,
holiday, and sick leave payments which are due to an employee
under any employer policy or employment contract.” S.C. Code
Ann. § 41-10-10(2) (emphasis added); see also Allen v. Pinnacle
Healthcare Sys., LLC, 715 S.E.2d 362, 365 (S.C. Ct. App. 2011)
(“The Act also defines ‘wages’ as ‘all amounts . . . which are
due to an employee under any . . . employment contract’”
(omissions in original) (quoting S.C. Code Ann. § 41-10-10(2))).
In essence, the plaintiffs’ cause of action under S.C. Code
Ann. § 41-10-80(C) is based on their claim that Columbia Farms
owed them unpaid wages resulting from its failure to count their
hours in accordance with employment contracts that were based on
what Columbia Farms told them when they were hired and that
stood separate and apart from the CBA. We conclude, however,
that such a theory of recovery cannot support their claims
because of the CBA’s terms and the supremacy of federal law that
provides for the CBA’s enforcement.
Any wages owed to the plaintiffs in this case were
necessarily those agreed to in the CBA negotiated between the
21
Union and Columbia Farms. That is the only contract on which
their S.C. Wages Act claims can be based, inasmuch as the CBA
provides that it was to be the exclusive contract of employment,
with Columbia Farms specifically agreeing with the Union that it
would not “enter into any other Agreement or contract with its
employees, individually or collectively, which in any way
conflicts with the terms and provisions of this Agreement.” And
the CBA’s terms were binding on the plaintiffs as members of the
bargaining unit.
As to wages, the parties agreed in the CBA to an 8-hour day
and a 40-hour week as the “basic” work day and work week and to
a specified rate of pay per hour “for all hours worked.” Also,
as the district court recognized, the company and its employees
had operated for years under a custom and practice of the CBA
that the “hours worked” be calculated based on “line time.” The
CBA also provided for two unpaid breaks during a work day,
totaling approximately 60 minutes, “the allocation between the
meal and rest periods to be allocated by the Company.”
Moreover, should any employee have a dispute “aris[ing] over the
interpretation” of those provisions, he or she was required to
follow the specified grievance procedure and, ultimately, the
arbitration procedure.
It is therefore apparent that the plaintiffs’ claims under
the S.C. Wages Act are nothing other than a disagreement with
22
Columbia Farms’ interpretation of how to calculate their “hours
worked” under the CBA, including the two unpaid breaks provided
for in the CBA. The company asserts that compensable time was
properly measured based on “line time,” so that employees would
start being paid when the line commenced and would no longer be
paid when the line stopped, either for breaks or at the end of
the shift. The plaintiffs assert that compensable time was to
be measured generally by when they were “on the clock” and, as
to the breaks, when they were in the break room after having
taken off their protective gear and washed up. While both sides
have looked to a range of evidence to resolve the dispute --
e.g., the representations at orientation, the Employee Handbook,
and the practices followed -- the question at bottom remains
what the CBA intended. For this reason, we conclude that the
dispute under the S.C. Wages Act necessarily implicates an
interpretation of the CBA and therefore that the proceedings are
preempted by § 301 of the LMRA.
Section 301 of the LMRA provides that “suits for violation
of contracts between an employer and a labor organization
representing employees . . . may be brought in any district
court of the United States having jurisdiction of the parties.”
29 U.S.C. § 185(a). This provision “not only provides federal
courts with jurisdiction over employment disputes covered by
collective bargaining agreements, but also directs federal
23
courts to fashion a body of federal common law to resolve such
disputes.” McCormick v. AT&T Tech., Inc., 934 F.2d 531, 534
(4th Cir. 1991) (en banc). Moreover, to ensure uniform
interpretation of collective bargaining agreements and to
protect the power of arbitrators, the Supreme Court has found
that § 301 preempts and entirely displaces “any state cause of
action for violation of contracts between an employer and a
labor organization.” Franchise Tax Bd. v. Constr. Laborers
Vacation Trust, 463 U.S. 1, 23 (1983) (emphasis added) (internal
quotation marks and citation omitted). As a result, a plaintiff
may not rely on state law “as an independent source of private
rights to enforce collective bargaining contracts.” Caterpillar
Inc. v. Williams, 482 U.S. 386, 394 (1987) (internal quotation
marks and citation omitted). Not only does this mean that a
plaintiff may not pursue a state law breach of contract claim to
enforce a collective bargaining agreement, but it also means
that a plaintiff may not “evade the requirements of § 301”
through artful pleading. Allis-Chalmers Corp. v. Lueck, 471
U.S. 202, 211 (1985). Accordingly, when resolution of a state
law claim depends substantially on the analysis of a collective
bargaining agreement’s terms, it must either be treated as a
claim under § 301, subject to dismissal if the collective
bargaining agreement’s grievance and arbitration procedures have
not been followed, or alternatively be dismissed as preempted by
24
§ 301. Id. at 220-21; see also Davis v. Bell Atl.-W. Va., Inc.,
110 F.3d 245, 247 (4th Cir. 1997).
To be sure, the Supreme Court has pointed out that Ҥ 301
cannot be read broadly to pre-empt nonnegotiable rights
conferred on individual employees as a matter of state law.”
Livadas v. Bradshaw, 512 U.S. 107, 123 (1994). And “when the
meaning of contract terms is not the subject of dispute, the
bare fact that a collective-bargaining agreement will be
consulted in the course of state-law litigation plainly does not
require the claim to be extinguished.” Id. at 124. But when
the evaluation of the state law claim “is inextricably
intertwined with consideration of the terms of the labor
contract,” Allis-Chalmers, 471 U.S. at 213, such that it is
necessary to interpret the collective bargaining agreement to
resolve the claim, Lingle v. Norge Div. of Magic Chef, Inc., 486
U.S. 399, 409-10 (1988), the claim is preempted under § 301.
Accordingly, “it is the legal character of a claim, as
independent of rights under the collective-bargaining agreement
(and not whether a grievance arising from precisely the same set
of facts could be pursued) that decides whether a state cause of
action may go forward.” Livadas, 512 U.S. at 123-24 (internal
quotation marks and citations omitted).
In this case, the plaintiffs cannot claim independent state
contract rights because the wages that they claim are due were
25
addressed by the CBA, which provided further that it was the
exclusive contract governing the wages to be paid by Columbia
Farms to the members of the bargaining unit. At a more
particular level, this case is nothing more than a suit for the
collection of wages based on whether “hours worked,” as that
term is used in the CBA, should be computed based on “line time”
or “clock time.” Accordingly, we hold that the plaintiffs’
claims under the S.C. Wages Act are preempted by § 301 of the
LMRA and should not have been submitted to the jury.
The plaintiffs seek to avoid this conclusion by disavowing
reliance on the collective bargaining agreement and asserting
that their claims are based on a notice provision of the S.C.
Wages Act, which provides that “[e]very employer shall notify
each employee in writing at the time of hiring of the normal
hours and wages agreed upon, the time and place of payment, and
the deductions which will be made from the wages, including
payments to insurance programs.” S.C. Code Ann. § 41-10-30(A).
The plaintiffs argue that Columbia Farms violated this provision
when it failed “to indicate in writing that employees were paid
based on ‘line time.’”
First, it is far from clear whether § 41-10-30(A) required
Columbia Farms to provide written notice to its employees that
their “normal hours” would be measured based on “line time.”
See Carolina Alliance for Fair Emp’t v. S.C. Dep’t of Labor,
26
Licensing & Regulation, 523 S.E.2d 795, 802 (S.C. Ct. App. 1999)
(rejecting plaintiffs’ position that “the exact amount of the
employee’s wages must be disclosed” under the Act).
Nonetheless, reading § 41-10-30(A) as plaintiffs would have it
would still not provide the plaintiffs with a remedy, as the
S.C. Wages Act specifies that the remedy for an employer’s
violation of § 41-10-30 is “a written warning by the Director of
the Department of Labor, Licensing, and Regulation or his
designee for the first offense and . . . a civil penalty of not
more than one hundred dollars for each subsequent offense.”
S.C. Code Ann. § 41-10-80(A).
In an effort to avoid this barrier, the plaintiffs argue
that the notice provision in § 41-10-30(A) is incorporated into
the provision imposing a duty on employers to timely pay their
employees “all wages due,” § 41-10-40(D), for which there is a
private cause of action, § 41-10-80(C). Section 41-10-40(D)
provides that “[e]very employer in the State shall pay all wages
due at the time and place designated as required by subsection
(A) of § 41-10-30,” and the plaintiffs take this cross reference
to mean that the “wages due” to an employee are whatever wages
the employer notified the employee he would be receiving at the
time of hire. Based on this interpretation, they maintain that
because Columbia Farms told them “they would be paid by the
clock at the time of hire and would work nine (9) hour shifts,”
27
Columbia Farms somehow created a term of employment that it
breached by paying them based on “line time.” They maintain
that their claim to unpaid wages is therefore not preempted
because “[n]o resort to any CBA was necessary for the jury to
determine Employees were not told that they would be paid based
on ‘line time’ when they were hired.”
Several problems are inherent with this theory. First, as
a textual matter, the far more natural reading of § 41-10-40(D)
is that it references § 41-10-30(A) to describe when and where
wages are to be paid, not the amount of wages due to an
employee. In other words, § 41-10-30(A) requires employers to
notify their employees of “the time and place of payment,” and §
41-10-40(D) then uses that “time and place” designation to
establish when and where wages must be paid. See Ross v. Ligand
Pharm., Inc., 639 S.E.2d 460, 471 (S.C. Ct. App. 2006).
But far more fundamentally, the plaintiffs’ theory
ultimately undermines the role of the CBA as the exclusive
contract for the payment of wages. They argued to the jury that
even though they were hired into positions covered by the CBA,
they nonetheless also entered into individual employment
contracts with Columbia Farms when they were hired that were
independent of the CBA and that entitled them to be paid on a
“clock time” basis, regardless of what the CBA provided. This
approach, however, cannot be accepted without doing serious
28
damage to the system of collective bargaining because, at
bottom, the plaintiffs seek to displace the CBA that established
the terms and conditions of their employment and to replace it
with what they understood to be Columbia Farms’ individual
agreements that compensable hours would be calculated based
solely on when they clocked in and out of work. Obviously, this
theory would inappropriately usurp the CBA’s federally protected
role. See Caterpillar Inc., 482 U.S. at 396 (noting that
“[i]ndividual contracts cannot subtract from collective ones”
(quoting J.I. Case Co. v. NLRB, 321 U.S. 332, 339 (1944))
(internal quotation marks omitted)); see also, e.g., Fox v.
Parker Hannifin Corp., 914 F.2d 795, 801 (6th Cir. 1990)
(“[E]mployees covered by a CBA cannot rely upon the existence of
a separate, individual employment contract giving rise to state
law claims”); Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d
1283, 1286 (9th Cir. 1989) (“Since Chmiel’s independent contract
claim concerns a job position governed by the collective
bargaining agreement, it is completely preempted by section
301”); Darden v. U.S. Steel Corp., 830 F.2d 1116, 1120 (11th
Cir. 1987) (per curiam) (holding preempted plaintiffs’ claims
“that they entered into oral agreements, for unionized
positions, that clearly sought to limit or condition the
provisions of the collective bargaining agreement, which
established the terms and conditions of employment”). Indeed,
29
the plaintiffs’ approach would undermine one of the fundamental
goals of § 301 preemption by allowing employees covered by a
collective bargaining agreement to circumvent their arbitration
commitments by positing the existence of individual contracts
that cover the same ground as a collective one but lack an
arbitration provision. Moreover, the plaintiffs’ theory in this
case cannot be reconciled with the provision of the CBA in which
Columbia Farms agreed “not to enter into any other Agreement or
contract with its employees, individually or collectively, which
in any way conflicts with the terms and provisions of [the
CBA].”
In sum, we conclude that any entitlement the plaintiffs
have in this case to unpaid wages under the S.C. Wages Act must
stem from the CBA that governed the terms and conditions of
their employment, including their wages. Since it is undisputed
that the plaintiffs did not pursue the grievance and arbitration
procedures provided by the CBA, these claims should have been
dismissed as preempted by § 301 of the LMRA.
III
With respect to the district court’s decision, following a
bench trial, that Columbia Farms violated the rights of eight of
its former employees under S.C. Code Ann. § 41-1-80 by
terminating their employment in retaliation for their
30
institution of workers’ compensation proceedings, Columbia Farms
contends that the district court applied an unprecedented test
for when an employee “institutes” workers’ compensation
proceedings. It also contends that the district court erred in
finding a causal relationship between Columbia Farms’
termination of the plaintiffs’ employment and their
“institution” of workers’ compensation proceedings.
Section 41-1-80 of the South Carolina Code provides that
“[n]o employer may discharge or demote any employee because the
employee has instituted or caused to be instituted, in good
faith, any proceeding under the South Carolina Workers’
Compensation Law.” (Emphasis added).
With respect to Natasha Atkinson, Anna Edens, Shiren
Johnson, Shirley Baisey, Tamortha Bruster, and Steven Case, none
actually filed a workers’ compensation claim prior to the
termination of his or her employment. The district court found,
however, that they had “instituted” workers’ compensation
proceedings within the meaning of the statute based on their
“receipt of treatment for their injuries from the nurse’s
office, combined with their requests to visit the company doctor
or Taylor’s representation to them that they had to see a
private doctor, and their submission of documentation to
Columbia Farms showing that they had sought medical care for
their injuries.” Atkinson, 874 F. Supp. 2d at 477; see also id.
31
at 478-480. This conclusion, however, applied a test that is
insufficient under South Carolina law to show that workers’
compensation proceedings had been “instituted.”
To be sure, the South Carolina Supreme Court has indicated
that § 41-1-80 does not “require a formal filing of a Workers’
Compensation Claim by the employee,” reasoning that “[t]he
purpose of this statute cannot be avoided by firing an injured
employee before he or she files a claim.” Johnson v. J.P.
Stevens & Co., Inc., 417 S.E.2d 527, 529 (S.C. 1992). Pointing
to decisions in other jurisdictions that had “held other conduct
sufficient to have instituted a proceeding including [1] the
employer’s agreement to pay or payment of medical care or [2]
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,” the South Carolina Supreme
Court held that “these types of conduct will suffice to
constitute instituting a proceeding under our statute as well.”
Id. (emphasis added). The South Carolina Supreme Court has,
however, never recognized any other conduct as sufficient to
satisfy the statutory requirement.
The district court in this case failed to follow the
jurisprudence of the South Carolina Supreme Court and did not
require plaintiffs to show either (1) that Columbia Farms agreed
to pay for the plaintiffs’ medical care or (2) that Columbia
32
Farms received a bill for the plaintiffs’ care from an
independent health care provider. And the circumstances of
these six employees do not satisfy those requirements. The
district court relied on the fact that these six employees had
submitted documentation to Columbia Farms to show that they had
sought medical care for their injuries, but there was no
indication, direct or implied, that they were doing so in order
to seek reimbursement for their medical bills. To the contrary,
the evidence showed that the plaintiffs provided doctors’ notes
to Columbia Farms in their efforts to minimize their attendance
points. We therefore conclude that the district court erred in
holding that these six employees had “instituted” workers’
compensation proceedings within the meaning of S.C. Code Ann. §
41-1-80.
We also agree with Columbia Farms that the district court
erred in concluding that the termination of these plaintiffs’
employment resulted from their institution of workers’
compensation proceedings. The record showed that their
employment was terminated under the established point system,
and regardless of whether that system was fairly administered,
the plaintiffs did not establish that it was a mechanism for
retaliation for their institution of workers’ compensation
proceedings. To the contrary, the district court found that the
33
plaintiffs’ employment was terminated by reason of Nurse
Taylor’s erroneous classification of their injuries.
Again, the statute provides that “[n]o employer may
discharge or demote any employee because the employee has
instituted or caused to be instituted, in good faith, any
proceeding under the South Carolina Workers’ Compensation Law.”
S.C. Code Ann. § 41-1-80 (emphasis added). It specifies
further:
Any employer shall have as an affirmative defense to
this section the following: wilful or habitual
tardiness or absence from work; being disorderly or
intoxicated while at work; destruction of any of the
employer’s property; failure to meet established
employer work standards; malingering; embezzlement or
larceny of the employer’s property; violating specific
written company policy for which the action is a
stated remedy of the violation.
Id. (emphasis added). Interpreting these provisions, the South
Carolina Supreme Court has held that “[t]he appropriate test of
causation under § 41-1-80 is the ‘determinative factor’ test,”
which “requires the employee [to] establish that he would not
have been discharged ‘but for’ the filing of the workers’
compensation claim.” Hinton v. Designer Ensembles, Inc., 540
S.E.2d 94, 97 (S.C. 2000). The South Carolina Supreme Court has
further held that “[w]hile the employer has the burden of
proving its affirmative defenses, the employer does not have the
burden of establishing the affirmative defenses are causally
related to the discharge,” id., because such a requirement would
34
“effectively shift[] the burden to [the] employer to disprove
that the discharge was in retaliation for filing the claim,”
Wallace v. Milliken & Co., 406 S.E.2d 358, 360 (S.C. 1991).
Instead, “[t]he ultimate burden of persuading the trier of fact
that the employer retaliatorily discharged the employee for
exercising statutory rights under the Act remains at all times
with the employee.” Id. (quoting Buckner v. Gen. Motors Corp.,
760 P.2d 803, 807 (Okla. 1988)). The employee may carry the
burden, “either directly by persuading the court that the
discharge was significantly motivated by retaliation for her
exercise of statutory rights, or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Id.
(citation omitted). “If the employer articulates a legitimate,
nonretaliatory reason for the termination, the proximity in time
between the work-related injury and the termination is not
sufficient evidence to carry the employee’s burden of proving a
causal connection.” Hinton, 540 S.E.2d at 97.
The district court did not adhere to these principles in
resolving the retaliation claims brought by the six plaintiffs
who reported having sore or injured hands. It erred by failing
to hold these plaintiffs to their burden of proving that they
“would not have been discharged ‘but for’ the filing of the
workers’ compensation claim.” Hinton, 540 S.E.2d at 97.
Instead, it concluded that they had established the requisite
35
causal connection by showing that they would not have been fired
“but for” Nurse Taylor’s determination that their conditions
were not related to work. See, e.g., Atkinson, 874 F. Supp. 2d
at 478 (“But for Taylor’s refusal to allow Baisey to visit the
company doctor, Baisey would not have accumulated excessive
attendance points”). It could be argued, as the district court
suggested, that Nurse Taylor may have misclassified these
employees’ injuries, resulting in their failing to receive the
benefit of Columbia Farms’ more lenient policies for employees
with injuries it considered to be work related. But, without
more, this fails to establish that Columbia Farms discharged
these six individuals in retaliation for the exercise of their
statutory rights under South Carolina’s workers’ compensation
law.
Because the district court (1) applied the wrong test under
South Carolina law for determining whether the plaintiffs
“instituted proceedings” under § 41-1-80 and (2) failed to
demand proof sufficient to satisfy South Carolina’s test for
causation, we reverse the judgments in favor of Atkinson, Edens,
Johnson, Baisey, Bruster, and Case.
The retaliation claims brought by Billy Harris and Lisa
Jamison stand on a different footing. Both of these employees
fell at work and were treated by the company doctor. The
district court thus properly concluded that they had
36
“instituted” workers’ compensation proceedings within the
meaning of the statute prior to their discharge. See Johnson,
417 S.E.2d at 529. Indeed, Jamison actually filed a workers’
compensation claim prior to the termination of her employment,
although the district court did not rely on this fact.
Moreover, even though Columbia Farms proffered a nonretaliatory
reason for why it terminated Harris’ employment -- that he left
the line without permission -- the district court was entitled
to accept Harris’s account that he actually had received
permission to leave the line in order to visit the nurse’s
station. Similarly, Columbia Farms represented that it was
terminating Jamison’s employment because she had taken excessive
breaks. But again, the district court found that that
explanation lacked credence since the company doctor had advised
Jamison to take frequent breaks and she was returning from the
nurse’s station each time she was spotted outside of her work
area. The district court was also entitled to consider
persuasive “the fact that a supervisor at Columbia Farms [had]
indicated that Jamison would likely be terminated as a result of
her injury.” Atkinson, 874 F. Supp. 2d at 481-82.
Columbia Farms nonetheless challenges the judgments in
favor of these two plaintiffs, arguing that an extended period
of time would have elapsed before they would have been able to
perform their normal job duties, thus justifying their
37
discharge. There is some force to this position, as the statute
does specify that an employer “shall have as an affirmative
defense” an employee’s “failure to meet established employer
work standards.” S.C. Code § 41-1-80; see also Horn v. Davis
Elec. Constructors, Inc., 416 S.E.2d 634, 637 (S.C. 1992)
(holding that § 41-1-80 “does not singularly accord to an
employee the right to a reasonable period of time for
rehabilitation to demonstrate the ability to perform his former
employment”). But in Horn, the court also affirmed the judgment
entered in favor of an employee, even though the record showed
that he was totally disabled for almost a year as a result of an
on-the-job injury to his back and then only released to return
to work with restrictions that prevented him from performing his
former job. Id. at 634-35. We conclude that this decision
controls Columbia Farms’ argument. We also note, in this
regard, that the district court specifically found that Jamison
was not entitled to any lost wages on the ground that she had
failed to mitigate her damages after her discharge, and it
awarded lost wages to Harris only after finding that he “had
been on light duty before the company doctor released him to
return to full duty, and [he] did not indicate that he would not
have been physically able to return to light duty, pursuant to
any medical restrictions, if Columbia Farms had not terminated
his employment.” Atkinson, 874 F. Supp. 2d at 481.
38
Finding no error with respect to Harris and Jamison, we
affirm the district court’s judgments in their favor.
IV
For the reasons given, we reverse the judgments (including
attorneys’ fees) in favor of the 16 plaintiffs who prevailed
below on claims under the S.C. Wages Act, concluding that those
claims should have been dismissed as preempted under § 301 of
the LMRA; we reverse the judgments on the retaliation claims
brought by Atkinson, Edens, Johnson, Baisey, Bruster, and Case
for their failure to prove their claims; and we affirm the
judgments in favor of Harris and Jamison on their retaliation
claims.
AFFIRMED IN PART; REVERSED IN PART
39
KING, Circuit Judge, concurring in part and dissenting in part:
I respectfully disagree with the panel majority’s decision
except its affirmance of the judgments in favor of plaintiffs
Billy Harris and Lisa Jamison on their workers’ compensation
retaliation claims. Indeed, I would fully affirm the district
court, which carefully and capably adjudicated all of the
retaliation and unpaid wages claims asserted herein.
With respect to the unpaid wages claims, the district court
properly allowed a jury trial on whether defendant Columbia
Farms violated the South Carolina Payment of Wages Act by, inter
alia, providing written notice to employees that they would be
paid based on “clock time,” while compensating them for only
“line time.” See S.C. Code § 41-10-30(A) (requiring “[e]very
employer [to] notify each employee in writing at the time of
hiring of the normal hours and wages agreed upon,” as well as to
make “[a]ny changes in these terms . . . in writing at least
seven calendar days before they become effective”); see also
Carolina Alliance for Fair Emp’t v. S.C. Dep’t of Labor,
Licensing, & Regulation, 523 S.E.2d 795, 803 (S.C. Ct. App.
1999) (“The statute is a notice statute. It is intended to
provide the employee with the information requisite to make an
educated decision whether or not to accept employment.”).
Significantly, the evidence was sufficient for the jury to find
that — despite Columbia Farms’s practice of paying employees
40
premised on “line time,” a practice permitted by but not
elucidated in the collective bargaining agreement (the “CBA”) —
each and every document provided to the plaintiffs indicated
that their wages would instead be for “clock time.” The court
thus correctly determined that the plaintiffs presented valid
state law claims for recovery of unpaid wages. See Evans v.
Taylor Made Sandwich Co., 522 S.E.2d 350, 352-53 (S.C. Ct. App.
1999) (invoking section 41-10-30(A) in upholding a jury verdict
and treble back wages award in favor of employees who
“interpreted [a posted] document as Taylor Made’s promise to pay
[them] 0.6133 cents per sandwich produced,” but who actually
received “wages based on a per package rate, which may include
one and a half or two sandwiches”), overruled on other grounds
by Barron v. Labor Finders of S.C., 713 S.E.2d 634, 638 (S.C.
2011).
The district court was also right to rule that the unpaid
wages claims were not preempted by § 301 of the Labor Management
Relations Act (the “LMRA”), 29 U.S.C. § 185. That is,
resolution of the claims did not require interpretation of the
CBA, which, again, was silent on the “line time”-“clock time”
issue. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.
399, 405-06 (1988) (explaining that § 301 preemption occurs when
“the resolution of a state-law claim depends upon the meaning of
a collective-bargaining agreement”). Moreover, § 301 does not
41
otherwise preempt “nonnegotiable rights conferred on individual
employees as a matter of state law” — here, the right to written
notice of their normal hours and wages. See Livadas v.
Bradshaw, 512 U.S. 107, 123 (1994); see also Lingle, 486 U.S. at
409 (observing that Ҥ 301 pre-emption merely ensures that
federal law will be the basis for interpreting collective-
bargaining agreements, and says nothing about the substantive
rights a State may provide to workers when adjudication of those
rights does not depend upon the interpretation of such
agreements”). Simply put, the CBA did not free Columbia Farms
to disseminate misleading wage-and-hour notices or exempt it
from the consequences of doing so.
As for the workers’ compensation retaliation claims, the
district court properly entered judgments for eight plaintiffs —
the two that we affirm today, plus the six that the panel
majority reverses (those in favor of Natasha Atkinson, Anna
Edens, Shiren Johnson, Shirley Baisey, Tamortha Bruster, and
Steven Case). Those latter judgments also merit affirmance
because the court heeded controlling principles of South
Carolina law, including the following:
● “‘In order to prove a claim [of workers’
compensation discrimination under South Carolina
Code section] 41-1-80, a plaintiff must establish
three elements: (1) the institution of workers’
compensation proceedings, (2) discharge or
demotion, and (3) a causal connection between the
first two elements,’” Atkinson v. House of
42
Raeford Farms, Inc., 874 F. Supp. 2d 456, 475
(D.S.C. 2012) (quoting Hinton v. Designer
Ensembles, Inc., 540 S.E.2d 94, 97 (S.C. 2000));
● “Proving a claim under section 41-1-80 does not
require a formal filing of a workers’
compensation claim,” as “[t]he Supreme Court of
South Carolina has held that conduct sufficient
to be considered instituting a proceeding
includes ‘the employer’s agreement to pay or
payment of 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,’” id.
(quoting Johnson v. J.P. Stevens & Co., 417
S.E.2d 527, 529 (S.C. 1992)); and,
● “To establish causation under section 41-1-80,
the employee must show that he would not have
been discharged ‘but for’ the institution of the
workers’ compensation claim” — a burden that the
employee may satisfy “either by ‘persuading the
court that the discharge was significantly
motivated by retaliation for her exercise of
statutory rights, or indirectly by showing that
the employer’s proffered explanation is unworthy
of credence,’” id. at 475-76 (quoting Hinton, 540
S.E.2d at 97).
The district court sensibly predicted that the Supreme Court of
South Carolina would add to Johnson’s non-exhaustive list of
proceeding-instituting conduct “an employee’s seeking or
receiving of medical treatment from the employer accompanied by
circumstances which would lead the employer to infer that a
workers’ compensation claim is likely to be filed.” See
Atkinson, 874 F. Supp. 2d at 475. Concomitantly, the court
reasonably determined that the six plaintiffs instituted
proceedings by seeking treatment from the Columbia Farms nurse’s
43
office, requesting to see the company doctor, and ultimately
resorting to private care for conditions regularly incurred in
the workplace and typical of workers’ compensation claims —
those conditions being “sore hands”/carpal tunnel syndrome
(Atkinson, Edens, Johnson, and Baisey), an injured and infected
finger (Bruster), and injured hands (Case). As the court
recognized, notwithstanding the company nurse’s professed
beliefs “that carpal tunnel syndrome is [not] a work related
injury” and that Bruster’s and Case’s injuries were sustained
elsewhere, see id. at 462, 465, 467, the six plaintiffs had all
expressly attributed their conditions to their labors at
Columbia Farms.
Finally, the district court’s causation rulings were also
legally and factually sound. The court concluded that the
reason articulated by Columbia Farms for discharging Atkinson,
Edens, and Johnson — that they failed to secure notes from their
private physicians permitting them to return to work without
restrictions — was unworthy of credence. In that regard, the
court pointed to the company nurse’s testimony “that Columbia
Farms generally made accommodations, such as light duty, for
employees with workers’ compensation injuries.” See Atkinson,
874 F. Supp. 2d at 476-77 (explaining that “where an employer
sets forth the employee’s inability to perform his job duties as
the employer’s reason for terminating the employee, evidence
44
that the employer had a policy of accommodating employees with
workers’ compensation injuries, coupled with the employer’s
failure to accommodate the plaintiff[,] may support that
plaintiff’s assertion that the employer’s proffered reason for
termination was mere pretext”). The court further found that,
in firing Baisey, Bruster, and Case, Columbia Farms pretextually
invoked their excessive attendance points — points that they
would not have accumulated but for the company nurse’s flimsy
appraisal that they sustained their injuries outside the
workplace. See, e.g., id. at 478 (“Although Baisey’s employment
at Columbia Farms included repetitive use of her hands, [the
company nurse] independently determined that Baisey’s injury was
not work related and refused to allow her to visit the company
doctor for further assessment. As a result, Baisey received
attendance points for the absences associated with her injury,
and was terminated from employment.”).
Simply put, because I agree with its cogent analysis, I
would affirm the district court across-the-board.
45