Donevant v. Town of Surfside Beach

778 S.E.2d 320, 414 S.C. 396, 2015 S.C. App. LEXIS 202
CourtCourt of Appeals of South Carolina
DecidedAugust 26, 2015
DocketAppellate Case No. 2014-000457; No. 5345
StatusPublished
Cited by5 cases

This text of 778 S.E.2d 320 (Donevant v. Town of Surfside Beach) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donevant v. Town of Surfside Beach, 778 S.E.2d 320, 414 S.C. 396, 2015 S.C. App. LEXIS 202 (S.C. Ct. App. 2015).

Opinion

LOCKEMY, J.

In this wrongful termination action, the Town of Surfside Beach appeals the trial court’s denial of its motion for a directed verdict. The Town argues that by denying its motion for a directed verdict, the trial court erred in expanding the public policy exception to at-will employment beyond situations where the employer requires the employee to violate [399]*399criminal law or the reason for the employee’s termination itself is a violation of criminal law. The Town further asserts the trial court’s denial of its motion was error because the public policy exception does not apply to terminations of government employees who insist on performing an act that is discretionary. We affirm.

FACTS

This appeal arises from the employment termination of Jacklyn Donevant — the former building official and Director of Planning, Building, and Zoning for the Town. Donevant sued the Town for wrongful termination, alleging it fired her in violation of a clear mandate of public policy. Specifically, Donevant asserted she was fired in retaliation for issuing a stop-work order1 to a restaurant that was performing construction with only a demolition permit and not a construction permit. At trial, the Town claimed it terminated Donevant for attendance issues, punctuality issues, and insubordination.

A. Donevant’s Case

In 2005, the Town hired Donevant as its building official. In this capacity, Donevant served as the head of the building department and was the only Town employee who could approve building permits or issue stop-work orders. In December 2010, the Town hired Jim Duckett as its town administrator. During Duckett’s tenure as administrator, there was an ongoing controversy with the vacancy of the Pier Restaurant — a restaurant located on a pier in Surfside Beach. The Town acquired ownership of the Pier Restaurant in 2008. Shortly thereafter, a long-time tenant of the Pier Restaurant vacated the premises, leaving the space vacant and depriving the Town of expected revenue. The Town had trouble finding a new tenant for the restaurant. The vacancy of the Pier Restaurant became a prominent, public issue in the Town, with stories appearing in several newspaper articles. As administrator for the Town, Duckett worked to help find a new tenant for the restaurant.

Donevant testified that throughout her employment with the Town, she regularly inspected construction sites on her [400]*400way to and from work. On June 17, 2011, Donevant conducted an inspection on her way to work. She called a member of her staff to inform her that she was conducting an inspection and would be in the office after she finished. When Donevant arrived at work, Duckett stopped her before she could walk in her office. Duckett wrote the following sentence on a sheet of paper: “Since Jim Duckett has a poor memory[,] I will ... in the future send him an email if I will not be in to work by [9:00] a.m. each workday.” Duckett gave the paper to Done-vant and made her write the sentence five times in front of the employees she supervised.

In December 2011, Donevant was diagnosed with breast cancer and received twelve weeks of medical leave from work. During her absence, the Town was forced to contract with the City of Myrtle Beach to perform Donevant’s building official duties because no other Town employee was qualified to perform those duties. The City of Myrtle Beach assumed the responsibility of reviewing plans, issuing permits, conducting inspections, and issuing stop-work orders within the Town’s jurisdiction.

While Donevant was on leave, Duckett found a new tenant to occupy the vacant Pier Restaurant space. The new tenant wanted to remodel the interior of the space. Because Done-vant was on leave, the City of Myrtle Beach issued a demolition permit to the tenant that allowed for “demo interior of budding only.” This demolition permit was the only permit issued to the Pier Restaurant during Donevant’s sick leave; however, the tenant had applied for a construction permit that was pending under “plan review.” While Donevant was on leave, Duckett visited the restaurant frequently and remained in contact with the City of Myrtle Beach about the construction plans.

On March 13, 2012, Donevant returned from sick leave. Before allowing her to resume her duties as building official, Duckett required Donevant to meet with him and requested that Debra Hermann, the Town clerk, witness the meeting. During the meeting, Duckett informed Donevant she would resume all of her job duties, but he warned her if she “change[d] anything that was done ... in [her] absence,” he would fire 'her. Duckett testified the reason for this instruc[401]*401tion was to prevent Donevant from revisiting any decisions made by the City of Myrtle Beach during her absence. Her-mann prepared a memorandum after the meeting that stated:

Duckett explained that [Donevant] was now officially returned to work; however, he gave her a direct order that she could not and would not change, ameliorate, or in any other manner amend any action that was taken during her absence. That if she did so, she would be fired.

On March 19, 2012, Duckett instructed Micki Fellner, the Town’s deputy administrator, to inform Donevant that she could no longer report to Fellner and was required to report directly to Duckett. Duckett had previously informed all employees, including Donevant, that Fellner “was in charge when [Duckett] wasn’t there” and Fellner “had the same authority [Duckett] had when [Duckett] was there.”

Donevant testified that shortly after returning to work from her sick leave, she discovered by reading a local newspaper article that new construction was underway at the Pier Restaurant. Upon reading the article, Donevant contacted the City of Myrtle Beach and learned no construction permit had been issued. Thereafter, Donevant drove to the Pier Restaurant to inspect the premises. She testified new construction had started at the restaurant. According to Donevant, the contractors had cut openings for doors and windows; studded a new wall; and installed plumbing, electrical, and subflooring. In Donevant’s opinion, this work constituted “construction” and therefore required a construction permit before it could be lawfully performed. Donevant testified that allowing un-permitted construction to continue within the Town’s jurisdiction posed a significant safety risk to the public. She stated:

[I]t was unsafe and it was dangerous. They had openings that anybody could step in and fall. There was loose wires and plumbing. There was stuff that had [not] been inspected, how do you know whether it [was] safe or not. We have to protect the public. The pier is a busy place. A lot of kids go [out] there....

Donevant issued a stop-work order to halt construction at the Pier Restaurant and taped the stop-work order to the door. After issuing the stop-work order, Donevant called Fellner on her way back to the office. Donevant testified she called [402]*402Fellner to discuss an unrelated matter and was not “reporting” to Fellner that she had issued a stop-work order. During the conversation, however, Donevant told Fellner about the stop-work order for the unpermitted construction at the Pier Restaurant.

The next day Duckett called Donevant into his office for a meeting. During the meeting, Duckett told Donevant he could not believe she stopped work at the Pier Restaurant after all the work he had done on the project.

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Cite This Page — Counsel Stack

Bluebook (online)
778 S.E.2d 320, 414 S.C. 396, 2015 S.C. App. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donevant-v-town-of-surfside-beach-scctapp-2015.