THIS OPINION HAS NO PRECEDENTIAL
VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT
AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Tony Lovette, Rudolph S. Scott, Jr., and Julius Higgins,
Appellants,
v.
Sonoco Products Company,
Respondent.
Appeal From Richland County
J. Ernest Kinard, Jr., Circuit Court
Judge
Unpublished Opinion No. 2004-UP-159
Submitted February 9, 2004 Filed March
11, 2004
AFFIRMED
Cletus K. Okpalaeke, of Columbia, for Appellants.
Clifford L. Bourke, Jr., of Columbia; James M. Powell, of
Greensboro, for Respondent.
PER CURIAM: Tony Lovette, Rudolph
S. Scott, Jr., and Julius Higgins (collectively, Appellants) appeal an order
of the trial court granting Sonoco Products Company summary judgment in Appellants
wrongful termination action. We affirm.
[1]
FACTS
Appellants were each employed by Anchor Continental,
Inc. in the spiral tubing division. In 1996, Sonoco bought Anchors spiral-tubing
department. Prior to the buy-out, Sonoco conducted a meeting with the employees
of this division offering them the opportunity to work for Sonoco. Appellants
offered evidence that in this meeting Sonoco made several assurances concerning
employment. Although the actual wording and substance of these assurances varied
slightly from worker to worker, from this evidence it appears Sonoco generally
assured the Anchor employees: [2] (1) No jobs would be eliminated by the buy-out;
(2) employees who wanted to switch to Sonoco would be granted positions and
would maintain their positions as long as they performed their work satisfactorily;
(3) previous seniority would be honored; (4) Sonoco personnel policies would
be the same as existing Anchor personnel policies; (5) wages would remain
the same or increase; (6) all employees would maintain the same positions,
responsibilities, and hours but would be offered the choice of changing jobs
or remaining at their former jobs following any departmental restructuring;
(7) former Anchor employees would be able to participate in Sonocos retirement
pension plan after two years and their years of employment with Anchor would
be included in calculating eligibility for Sonocos retirement pension plan;
(8) insurance premiums would be waived for at least three years; (9) employees
could roll over their 401(k) contributions to Sonocos plan, if desired; (10)
any employee who decided to stay with Anchor would be given a job in another
department with that company. Eighteen of the twenty employees in the division
agreed to change to Sonoco employment, including division supervisor Scott Franklin.
After Brian Wellman became the
manager of the Sonoco division in July of 1997, he significantly restructured
the division. As part of this restructuring, the pay rates for many jobs were
lowered. Although no employees pay decreased, the employees pay rates were
frozen until the rates for their jobs met their current pay rates. Wellman
offered Appellants new jobs under the restructuring. They turned the offers
down because they felt the pay increases were not proportionate to the new responsibilities.
Appellants stated that because they complained about the changes Wellman made
to the division, they were branded troublemakers.
In August of 1997, Wellman began investigating
time-keeping irregularities by the employees in the department after hearing
rumors that employees were gone from the work area for long periods of time
on weekends when no members of management were around. Wellman obtained the
records of the turnstile controlled by magnetic key cards through which the
employees entered the plant from the parking lot and compared them to the employees
time cards. He found significant discrepancies in the records of eight employees,
including the three Appellants. As a result of this investigation, four employees,
including Appellants, were fired.
Appellants initially brought an action in the U.S.
District Court for the District of South Carolina, alleging Title VII race-based
discrimination, as well as pendent state claims of wrongful breach of employment
contract and wrongful retaliatory termination in violation of state public policy.
Adopting the report of an assigned magistrate, the District Court dismissed
Appellants federal claims, but added, the remaining state law claims are hereby
dismissed without prejudice, to be pursued, if at all, in state court. The
Fourth Circuit Court of Appeals affirmed this ruling.
Appellants then brought an action in state court.
Both parties filed motions for summary judgment. The trial court granted
summary judgment in favor of Sonoco. It subsequently denied Appellants motion
for reconsideration. This appeal followed.
STANDARD
OF REVIEW
The purpose of summary judgment is to expedite the
disposition of cases which do not require the services of a fact finder. Dawkins
v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 438 (2003). Summary judgment
is appropriate when there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. Osborne v. Adams,
346 S.C. 4, 7, 550 S.E.2d 319, 321 (2001). The evidence and all reasonable
inferences therefrom must be viewed in the light most favorable to the non-moving
party. Id. It is well established that summary judgment should be
granted . . . in cases in which plain, palpable and indisputable facts exist
on which reasonable minds cannot differ. Anders v. S.C. Farm Bureau Mut.
Ins. Co., 307 S.C. 371, 373, 415 S.E.2d 406, 407 (Ct. App. 1992) (quoting
Main v. Corley, 281 S.C. 525, 526, 316 S.E.2d 406, 407 (1984)); see
Bloom v. Ravoira, 339 S.C. 417, 425, 529 S.E.2d 710, 714 (2000) (finding
where a verdict is not reasonably possible under the facts presented, summary
judgment is proper).
LAW / ANALYSIS
Appellants argue that the promises made by
Sonoco before the buy-out constitute an oral employment contract and an exception
to the doctrine of employment at-will. We disagree.
South Carolina recognizes the doctrine of
employment at will in wrongful termination actions. Prescott v. Farmers
Tel. Coop., Inc., 335 S.C. 330, 334, 516 S.E.2d 923, 925 (1999). Although
some exceptions have been recognized, the doctrine of employment at-will remains
in South Carolina as a longstanding economic incentive that provides the marketplace
its necessary flexibility. Prescott, 335 S.C. at 335, 442 S.E.2d at
925. At-will employment may be terminated by either party at any time, for
any reason or for no reason at all. Prescott 335 S.C. at 334, 516 S.E.2d
at 925. The general rule is that termination of an at-will employee normally
does not give rise to a cause of action for breach of contract. Connor v.
City of Forest Acres, 348 S.C. 454, 463, 560 S.E.2d 606, 610 (2002).
An employer and employee may choose to contractually
alter the general rule of employment at-will through an oral contract of definite
employment. Prescott, 335 S.C. at 335-36, 442 S.E.2d at 925-26. However,
to prove the existence of such a contract, which is usually unilateral, the
employee must establish: 1) a specific offer, 2) communication of the offer
to the employee, and 3) performance of job duties in reliance on the offer.
Id. at 336, 442 S.E.2d at 926.
An offer is the manifestation of willingness to enter
into a bargain, so made as to justify another person in understanding that his
assent to that bargain is invited and will conclude it. Prescott, 335
S.C. at 336, 442 S.E.2d at 926. In order to be considered binding, an offer
of employment must be definite. Id. at 336-37, 442 S.E.2d at 926. An
offer arises from conduct from which a reasonable person in the offerees position
would be justified in inferring a promise in return for a requested act. Id.
at 336, 442 S.E.2d at 926. Vague assurances of job security, even if repeated,
do not give rise to contractual rights. Id.
In Prescott, the supreme court found an alleged
offer of [a]s long as you do your job, keep your nose clean, that youd have
a job at [the employer] right on was not sufficiently explicit to constitute
an offer to limit termination to just cause. Id. at 337, 442 S.E.2d
at 926. It explained a reasonable person in the employees position would construe
the statement as praise or encouragement, or even puffery, rather than as
an offer of definite employment. Id.
Even when construing the alleged assurances made by
Sonoco in the light most favorable to Appellants, we find these assurances did
not satisfy the criteria set forth in Prescott. Sonocos alleged statement
to the employees that they would maintain their positions as long as they performed
their work satisfactorily amounts to no more than a vague assurance of job
security. It did not create any type of contractual rights that would remove
Appellants from the general rule of at-will employment.
Appellants cite Weber v. Perry for
the contention that the relinquishment of gainful employment to pursue new employment
promised by another is adequate consideration to take a position out of the
realm of at will employment. 201 S.C. 8, 21 S.E.2d 193 (1942). The controlling
distinction between Weber and the case before us is the nature of the
relinquished employment. In Weber, the plaintiff abandoned his own established
business in Michigan to work for another in South Carolina. While the court
did find this move adequate to establish independent consideration, subsequent
case law has distinguished these facts from circumstances where an at-will position
is relinquished to take another at-will position, even if the new employer promises
lifetime employment. Orsini v. Trojan Steel Corp., 219 S.C. 272, 64
S.E.2d 878 (1951). The mere act of leaving one at-will job for another does
not take the new employment out of the general rule, notwithstanding any inducements
or promises by the later employer to the contrary.
There is no evidence in the record that Appellants
employment with Anchor was not at-will. Accordingly, their decision to leave
their at-will employment with Anchor to take positions with Sonoco did not create
any contractual rights. We find no error in the trial courts determination
that as a matter of law, Appellants were at-will employees of Sonoco and could
lawfully be terminated at any time for any or no reason.
Moreover, even when assuming that Appellants were contractual
employees who could only be terminated for cause, we find the trial court correctly
held no genuine issue of material fact existed to support the Appellants contention
that Sonoco breached the alleged contract. When an employment contract only
permits termination for cause, the appropriate test on the issue of breach focuses
on whether the employer had a reasonable good faith belief that sufficient
cause existed for termination. Conner v. City of Forest Acres, 348
S.C. 454, 464, 560 S.E.2d 606, 611 (2002). [T]he fact finder must not focus
on whether the employee actually committed misconduct; instead, the focus must
be on whether the employer reasonably determined it had cause to terminate.
Id. at 464-65, 560 S.E.2d at 611.
Wellman testified that based on a rumor he suspected
employees had been leaving the premises without clocking out, in effect being
paid for time not spent at work. It was suspected that most of these violations
had occurred over the weekends, when the plant operated without a supervisor
or manager present. Employees could only enter plant from the parking lot through
a turnstile controlled by a magnetic key card. A record of the use of each
card was maintained by a computer system belonging to Anchor. Wellman initiated
an investigation comparing the timecard records and the key card turnstile records
of every employee in the Sonoco division of the plant.
After comparing the records of all the hourly employees,
Wellman disregarded all timecard discrepancies he felt were insignificant, such
as times that might reflect the moving of a car, retrieving items from the parking
lot, rolling up car windows, etc. He found eight employees whose discrepancies
were substantial. The absences in question all took place before Wellman assumed
the position of plant manager. Wellman then approached division supervisor Scott
Franklin for any information regarding the paid absences of these eight employees.
Franklin recalled satisfactory explanations for two of them. Wellman then met
with the remaining six employees. All six were suspended following the meeting,
but were told that a second meeting would take place later in the week and that
any information regarding the absences would be appreciated between the meetings.
Prior to the second meeting, two employees came to
Wellman with explanations and apologies. They each received an official warning
and were reinstated, one with pay and one without. Appellants, three of the
remaining four employees, offered no further information until the second meeting. [3] Following the second meeting,
Appellants were terminated.
Appellants argue Sonoco waived enforcement of its
rule against employees leaving the premises without clocking out by allowing
a lunch run system. According to the testimony of the Appellants and several
other employees, Franklin had initiated this system while supervising the Anchor
division, whereby a designated employee would leave the premises without clocking
out to purchase lunch for the entire crew or cash checks for the crew. Although
this practice continued after Sonoco took over the division, it ended when Wellman
became the manager.
We find no evidence in the record that Sonoco waived
its rule against employees leaving the premises without clocking out. At the
most, the lunch run system may have provided a viable excuse for absences
when an employee was the designated lunch runner. The Appellants, however,
admitted to paid absences from work at times and for reasons that cannot be
justified by the existence of Franklins lunch run system. They were given
ample opportunity to apologize or explain these absences, evidence of Sonocos
good faith. The turnstile records and Appellants admissions in meetings with
Brian Wellman gave Sonoco a reasonable good faith basis to terminate Appellants. [4]
Appellants also argue that they were terminated in
violation of a clear mandate of public policy. The trial court did not address
the issue of wrongful termination in violation of public policy in its order
granting summary judgment. Appellants failed to seek a ruling on the issue
in their motion for reconsideration. Accordingly, this issue is not preserved
for our review. See Summer v. Carpenter, 328 S.C. 36, 43, 492
S.E.2d 55, 58 (1997) (holding that an issue, if not ruled on, must be ruled
on by request in a post trial motion to be preserved for appeal).
The Respondent argues in its brief this court lacks
jurisdiction because Appellants failed to file their notice of appeal with this
court within ten days after they served it on Respondent as required by Rule
203(d)(2), SCACR. As this court stated in its order allowing Appellants to
file their notice of appeal out of time,
[I]t is the time for serving the notice of appeal that
may not be extended. See Mears v. Mears, 287 S.C. 168, 337 S.E.2d
206 (1985) (timely service of the notice of appeal is jurisdictional requirement
that cannot be extended or expanded). This court may allow late filing of a
notice of appeal if timely service has been accomplished for good cause shown.
See Rules 203(d)(3), 231, & 234(b), SCACR.
Finding Appellants had established good cause, this
court allowed the late filing. Accordingly, we reiterate this court does have
jurisdiction over Appellants appeal.
For the foregoing reasons, the order of the trial court
granting summary judgment to Sonoco is
AFFIRMED.
HUFF, HOWARD, and CURETON, J.J. concur.
[1] Respondent filed a motion to strike Appellants
reply brief. The motion is DENIED. The reply brief was given such consideration
as is appropriate under appellate court procedure.
[2] As mandated by this courts scope of review, we
must view the evidence in the light most favorable to Appellants. Thus, we
list these assurances in the broadest manner alleged for the purposes of this
appeal only.
[3] Lovette admitted to leaving the plant to work
on a boat. Scott denied leaving for long periods and claimed he often loaned
his card to others. Higgins claimed permission for most absences, but admitted
to leaving to run an errand for his wife on one Sunday in question.
[4] We need not rule on Appellants argument that
the trial court erred in its finding of collateral estoppel. The court only
found that Appellants were estopped from claiming that the discrepancies in
turnstile/timecard records did not exist. No such claim was made by Appellants
on appeal.