THE STATE OF SOUTH CAROLINA
In The Supreme Court
James E. Gastineau, Respondent
Individually, and as
Executive Director of
the Beaufort County
Board, the Beaufort
Council, the State
Department of Mental
The Beaufort County
Board is Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Beaufort County
Jackson V. Gregory, Judge
Opinion No. 24800
Heard November 19, 1997 - Filed June 8, 1998
Charles E. Carpenter, Jr., and Deborah Harrison
Sheffield, of Richardson, Plowden, Carpenter &
Robinson, P.A., of Columbia, and James S. Gibson,
of Howell, Gibson & Hughes, P.A., of Beaufort, for
V.M. Manning Smith, of Moss & Kuhn, P.A., of
Beaufort, for respondent.
WALLER, A.J.: We granted certiorari to review the Court of Appeals'
opinion in Gastineau v. Murphy, 323 S.C. 168, 473 S.E.2d 819 (Ct. App.
1996). This is a Whistleblower action in which the Court of Appeals affirmed
the jury's verdict for respondent, James Gastineau (Gastineau), finding he
had been dismissed from his job in retaliation for reporting his employer's
illegal conduct. We reverse.
In 1988, the General Assembly enacted the South Carolina
Whistleblower Act to protect public employees from retaliation for reporting
violations of law by public bodies or their officials. Act No. 354, 1988 S.C.
Acts 2648 (codified at S.C. Code Ann. §§ 8-27-10 to -50 (Supp.
1989))(amended 1993). At the time Gastineau's claim arose, the Act created
a rebuttable presumption of retaliatory discharge if an employee was
terminated within one year of reporting any violation or wrongdoing. S.C.
Code Ann. § 8-27-30 (Supp. 1989)(amended 1993).1 An employer could rebut
this presumption by showing the employee was discharged for reasons other
than whistleblowing. S.C. Code A-rm. § 8-27-40 (Supp. 1989)(amended 1993);
Gamble v. City of Manning, 304 S.C. 536, 537, 405 S.E.2d 829, 829 (1991).
In this case, Gastineau showed he was fired within one year of
reporting conduct which he believed was illegal. Petitioner. the Beaufort
County Department of Mental Retardation Board (Board), then offered
evidence showing Gastineau was fired for poor job performance.
Furthermore, petitioner offered evidence showing Gastineau could not have
been fired in retaliation for making a report because Gastineau's supervisor
was unaware of Gastineau's report when she fired him. After the jury
returned a verdict for Gastineau, Board moved for judgment non obstante
veredicto (JNOV). The trial judge refused to grant Board's motion, and the
Court of Appeals affirmed his decision.
Did the Court of Appeals err in denying the Board's motion for JNOV?
A motion for JNOV may be granted only if no reasonable jury could
have reached the challenged verdict. Crossley v. State Farm Mutual Auto.
Ins. Co., 307 S.C. 354, 357, 415 S.E.2d 393, 395 (1992). In deciding a motion
for JNOV, the evidence and all reasonable inferences must be viewed in the
light most favorable to the nonmoving party; if more than one inference can
be drawn, the case must be submitted to the jury. Id.
The evidence viewed in the light most favorable to Gastineau shows he
was hired by the Board as a Qualified Mental Retardation Professional
(QMRP) and Residential Director of a facility which housed mentally
handicapped individuals. He began working on April 2, 1990, under the
supervision of Leigh Murphy, Executive Director of the Board.
On July 16, 1990, Gastineau's wife, Christy Gastineau, also began
working for the Board; she was hired as a trainer/driver for the Day Program
at the Beaufort County Rehabilitation Center, a sheltered work program for
the mentally and physically handicapped. Within two weeks of starting her
job, Mrs. Gastineau drove several clients to work at a construction site owned
by Murphy's husband. After seeing the site and asking questions concerning
the clients' wages, Mrs. Gastineau became concerned the clients were working
in unsafe conditions and being underpaid. She voiced these concerns to her
husband. She also confided in her superiors, Barbara Greenberg and Susan
Muckenfuss. According to Mrs. Gastineau, Muckenfuss told Greenberg that
"this is something we need to talk to [Murphy] about."
Two or three weeks later, Gastineau reported Murphy's husband's
possible wage violations to Alice Shook, who worked for the South Carolina
Department of Mental Retardation (SCDMR). Shook repeated Gastineau's
concerns to her immediate supervisor, Wilson Inabinet, and his supervisor,
Brant Coyle. Inabinet and Coyle consequently decided to send a staff
member from SCDMR to review the Day Program in Beaufort. Gary Hudson,
who annually inspected programs licensed by SCDMR and had already
performed his annual inspection of Beaufort's program, was sent back to
Beaufort to perform a follow-up visit.
On October 31, 1990, Murphy discharged Gastineau from his position
as a QMRP. Gastineau subsequently brought this suit alleging he was
discharged in retaliation for whistleblowing. According to Gastineau, he was
fired because he reported Murphy's husband to SCDMR for improperly paying
clients of his facility.
No reasonable jury could have concluded from the evidence introduced
at trial that Gastineau was fired in retaliation for reporting conduct which
he believed to be illegal. First, the evidence viewed in the light most
favorable to Gastineau does not support a finding that Murphy was even
aware of Gastineau's report at the time she discharged him. No direct
evidence was introduced; in fact, Murphy testified she did not leam about
Gastineau's report until November of 1990. Furthermore, the circumstantial
evidence surrounding Gastineau's report is insufficient to find Murphy was
aware of the report.2 According to the Gastineaus, they informed three
people of their suspicions; Gastineau introduced no evidence that any of these
three discussed the Gastineaus' concerns with Murphy.3 One of these three
did convey Gastineau's concerns to two other people, but these two were not
called to testify, and no evidence showed they informed Murphy of
The Court of Appeals held the jury may have inferred that Murphy
a fact, the circumstances must lead to the conclusion with reasonable
certainty and must have sufficient probative value to constitute the basis for
a legal inference, not for mere speculation. Holland v. Georgia Hardwood
Lumber Co., 214 S.C. 195, 204-205, 51 S.E.2d 744, 749 (1949). The facts and
circumstances shown should be reckoned with in the light of ordinary
experience, and such conclusions deduced therefrom as common sense
dictates; the existence of a fact cannot rest in speculation, surmise or
3In fact, Barbara Greenberg could not recall any complaints Gastineau
or his wife made concerning the safety of clients or their wages, and Susan
Muckenfuss testified neither of the Gastineaus made any complaints to her
concerning client safety or wages.
leamed about Gastineau's report during Gary Hudson's review. 473 S.E.2d
at 824. We disagree.
The jury could not have reasonably inferred Murphy learned of
Gastineau's report from the circumstances of Hudson's inspection. Hudson
died prior to trial and therefore did not testify. Alice Shook testified that
Hudson, who annually inspected programs licensed by SCDMR and had
already performed his annual inspection of this program, was sent to perform
a follow-up visit. Shook did not know what instructions Hudson was given
because she was not present when he was told to go to Beaufort. Shook
testified this type of follow-up visit was not unusual. According to Shook, the
inspector does not notify the program of the impending inspection and does
not tell the program the purpose of the visit. She also testified this type of
visit would normally lead to a written report, and although she searched for
a report, she did not find one.
Viewing the evidence in the light most favorable to Gastineau, the
circumstances under which other inspections were performed do not lead with
reasonable certainty to the conclusion that Hudson would have told anybody
he was there because of Gastineau's report. The evidence does not even
conclusively show that Hudson himself knew he was sent to Beaufort because
of Gastineau's report. The only evidence in the record is that Hudson would
not have revealed the reason for his visit, and that his visit was not out of
Moreover, to rebut the presumption of retaliation created by the
Whistleblower Act, Board produced overwhelming evidence showing Gastineau
was discharged for failing to fulfill the responsibilities of his job. At trial,
evaluations of Gastineau's job performance after three months and six
months were admitted into evidence. Although Gastineau showed
improvement in some areas during the time between these two evaluations,
the six-month evaluation showed an overall decline in Gastineau's
performance, notably in areas such as quality of work, judgment, planning,
organizing, staffing, and policy implementation. The notes taken by his
supervisor Murphy show Gastineau made frequent financial and payroll
errors and often needed to be reminded of deadlines. The notes also indicate
Gastineau was not fulfilling his responsibility of ensuring compliance with
licensing regulations set out by the Department of Health and Environmental
because failure to do so could jeopardize federal funding.
Gastineau admitted he was struggling with his job due to the amount
of paperwork involved. One of Gastineau's witnesses also confirmed
Gastineau did not get his clerical work done.
Shortly after his six-month evaluation, Murphy I gave Gastineau a
written warning which showed he was not improving despite being
counseled.5The warning noted and Gastineau admitted he took two staff
members on a trip to Walterboro despite being "advised" by Murphy not to
do so. The warning informed Gastineau he could be discharged for another
Gastineau's termination letter notes he was instructed to review
existing policies and make recommendations for changes, which he admitted
he failed to do. Gastineau also admitted he failed to hold team meetings as
required by federal regulations.
An inspector named Risley Linder testified he conducted a "Quality
Assurance Survey" in August of 1990. This type of review was done as a
practice inspection to help the facility prepare for DHEC certification
inspections. DHEC certification was essential to the facility because without
it, the facility would lose its federal funding which amounted to seventy-five
percent of its budget. In August, Linder found deficiencies in Gastineau's
unit which were serious enough to have affected the program's certification.
Gastineau was notified of these problems during a post-inspection interview
Linder performed a follow-up visit in October. Although some of the
deficiencies had been fixed, Linder found a more alarming problem: a
significant amount of data and progress notes for which Gastineau was
responsible was missing from files. Linder testified this was a more serious
problem for certification than inadequate notes. According to Linder, having
all data and progress notes in the files at all times was critically important
since DHEC did not notify facilities of when it would inspect. Linder
believed the state of Gastineau's records on the day he visited would have
caused DHEC to begin its decertification process.
a permanent employee after his six-month probationary period does not rebut
the Mental Retardation Board's claim that he was subsequently discharged
for "good cause." The uncontradicted evidence is that Beaufort County
personnel policies dictated that employees were automatically given
permanent status after a six month evaluation.
Linder's comments dismayed Murphy because they showed Gastineau
was not fulfilling his role as QMRP. Consequently, Murphy and a colleague
took over as acting QMRPs to give Gastineau an opportunity to review all of
his paperwork from the beginning of his job and make sure it complied with
DHEC requirements. When Gastineau failed to do so, Murphy realized he
would never be able to fulfill the role of QMRP, so she discharged him.
Gastineau's termination letter includes a detailed description of his
unsatisfactory work history and was admitted into evidence.
The evidence shows Gastineau was unable to perform his job to the
satisfaction of his supervisors and unwilling to follow directives. Further, his
incompetence was threatening the facility's funding. The only reasonable
inference to be drawn from the evidence is that Gastineau was not fired in
retaliation but for being an unsatisfactory employee. Accordingly, the trial
judge erred in refusing to grant Board's motion for JNOV.
FINNEY, C.J., and MOORE, A.J., ooncur. TOAL and , JJ., dissenting
in separate opinion.
TOAL, A.J.: I respectfully dissent.
In ruling on motions for a directed verdict or judgment non obstante
veredicto, the trial court must view the evidence and all reasonable inferences
in the light most favorable to the non-moving party, anti if it is susceptible
of more than one reasonable inference, the case should be submitted to the
jury. Unlimited Services, Inc. v. Macklen Enterprises, Inc., 303 S.C. 384, 401
S.E.2d 153 (1991). The majority opinion does not utilize this standard.
Instead, it takes a view of the evidence in the light most favorable to the
Mental Retardation Board. I find that although there was not direct.
evidence offered, there was ample circumstantial evidence presented below to
warrant submission to the jury the. issue of whether Gastineau was
terminated because of his complaint.
Gastineau reported possible safety and wage violations concerning
handicapped clients who worked with the Beaufort County Rehabilitation
Center. He was discharged shortly after his whistleblowing. These violations
related to handicapped individuals who had been hired by the husband of
Leigh Murphy -- the Executive Director of the Mental Retardation Board.
Gastineau informed Alice Shook of the South Carolina Department of Mental
Retardation about the possible violations. Shook, in turn, informed her
supervisors. These supervisors decided to send Gary Hudson to conduct an
inspection of the Rehabilitation Center. Hudson conducted the inspection;
unfortunately, he died prior to trial. No written report of his visit was found.
Furthermore, Gastineau's wife, who worked with the Rehabilitation Center .9
had expressed concerns to her supervisors about the potential violations.
These supervisors, according to Mrs. Gastineau, had stated that they would
discuss the matter with Leigh Murphy.
The circumstances of this case, considered in the aggregate and viewed
in the light most favorable to Gastineau, create a factual issue as to what
Mrs. Murphy knew and whether she fired Gastineau because of his
whistleblowing. The majority is, in effect, acting as a thirteenth juror in
reaching its conclusion, rather than determining if there was sufficient
evidence for the matter to be submitted for the jury.
Moreover, evidence does not support the position that Gastineau was
terminated for good cause. He had been made a permanent employee after
a six-month probationary period. Shortly after becoming a permanent
employee, he was fired. Although his evaluations were below expectations in
some areas, they exceeded expectations in others. Yet, he was suddenly
terminated after he disclosed the potentially damaging information about the
handicapped clients. The Mental Retardation Board cannot grant Gastineau
a permanent position, based on his employment record, and at the same time
claim to fire him for "good cause" on the basis of the identical record.6
I would affirm the Court of Appeals' affirmance of the trial court's
ruling. This was clearly a case for the jury to decide. I would uphold its
verdict of $375,000 in favor of Gastineau. No challenge is made to the
BURNETT, A. J. , concurs.
personnel policies dictated that employees were "automatically" given
permanent status after a six-month evaluation. There is no record citation
to support this statement. This statement overlooks the fact that by
definition a "probationary period" implies not automatic employment, but
rather employment conditioned upon demonstration of fitness for a job. If
Gastineau's record was as bad as was claimed, then surely he would not have
been able to meet the requirements of his probationary period. He was
evaluated shortly before the end of his six-month probationary period; he
became a permanent employee at the six-month point; and he was terminated
thereafter. The fact that the majority and dissent see these facts differently
illustrates dramatically why this matter is a question of fact to be resolved
by a jury.