Smith v. South Carolina Department of Health & Environmental Control

374 S.E.2d 498, 296 S.C. 514, 1988 S.C. App. LEXIS 156

• Court: Court of Appeals of South Carolina
• Decided: October 26, 1988
• Docket: 1241
• Status: Published

Opinion

Shaw, Judge:

Appellant, Pamela K. Smith, sought a Temporary Restraining Order preventing the respondent, South Carolina Department of Health and Environmental Control (DHEC), from terminating Smith’s position with DHEC or from transferring her to another position. Initially granted, the Temporary Restraining Order was dissolved by the trial court after a hearing on the matter. At a later hearing, the trial court dismissed Smith’s complaint against DHEC. We affirm.

Smith was terminated from her position as Special Investigator II at DHEC. She appealed to the State Employee Grievance Committee which found in favor of DHEC, but modified the termination to fifteen days suspension with backpay. No appeal was taken from the Grievance Committee decision. DHEC then notified Smith she would be reinstated in the position of Social Services Analyst II. This position is of the same pay grade and at the same salary as Smith’s former position.

Smith refused to return to DHEC in the new position and DHEC informed her that failure to report to work would result in termination for abandonment of her position. On December 5, 1986, Smith filed a complaint and petition for Temporary Restraining Order. Judge T. L. Hughston, Jr. granted the order restraining DHEC from enforcing its decision to terminate Smith’s employment for failure to report pending a hearing on the matter. A hearing was held on December 15,1986, before Judge Walter J. Bristow, Jr. at which time the Temporary Restraining Order was dissolved and Smith’s motion for an injunction pendente lite was denied. On May 4, 1987, Special Circuit Judge George Bell Timmerman dismissed Smith’s complaint finding the complaint sought only an injunction against her termination which had already been denied in the December 15, 1986 hearing. Smith appeals. We affirm the dismissal of the complaint based on other grounds.¹

Smith did not appeal the Committee’s final decision, but filed a lawsuit with the circuit court. That lawsuit essentially sought to restrain DHEC from firing Smith and requested enforcement of the Committee’s final decision. Smith contends the Committee found “Smith should be reinstated into her position subject to fifteen (15) days suspension” and that DHEC attempted to modify the Committee’s decision. We disagree. The Committee’s decision merely states “the Committee modifies the agency’s decision from termination to 15 days suspension with back-pay.” It is not clearly mandated that DHEC reinstate Smith into her former position.

§ 8-17-340 of the South Carolina Code of Laws, 1976, provides that the decision of the State Employee Grievance Committee “... shall be final in terms of administrative review. Appeal from the final decision may be made by the employee to the court of common pleas...”. Smith has not appealed to the circuit court from a final decision of the Committee. Her recourse is not a circuit court action requesting enforcement of a committee decision, but is an appeal to the State Employee Grievance Committee over her assignment to a new position. Relief in the courts is not available to Smith as she has failed to exhaust her administrative remedies. Bradley v. State Human Affairs Commission, 293 S. C. 376, 360 S. E. (2d) 537 (Ct. App. 1987).

For the foregoing reasons, the order below dismissing the action is affirmed.

Bell and Cureton, JJ., concur.

1 Pursuant to Supreme Court Rule 4, § 8 and Rules of Practice in the Court of Appeals of South Carolina, this Court can sustain an order upon any ground appearing in the record.