THE STATE OF SOUTH CAROLINA
In The Supreme Court
Vivian Martin, and
Jeremy James, for
themselves and all
others similarly situated, Appellants,
South Carolina Forestry
Carolina Department of
Mental Health, both as
representatives of all
agencies of the State of
South Carolina; Richard
Eckstrom, in his official
capacity as Treasurer of
the State of South
Carolina, South Carolina
Budget and Control
Board Division of,
Human Resources, Respondents.
Appeal From Richland County
J. Ernest Kinard, Jr., Circuit Court Judge
Opinion No. 25036
Heard November 16, 1999 - Filed December 20,1999
Armand Derfner, Peter Wilborn, and Ray P.
McClain, all of Charleston; for appellants.
Vance J. Bettis, of Gignilliat, Savitz & Bettis; Edwin
E. Evans, Office of General Counsel, S.C. Budget and
Control Board; and Samuel L. Wilkins, Office of
Human Resources, S.C. Budget and Control Board,
all of Columbia, for respondents.
WALLER, A.J.: At issue in this appeal is the manner in which state
agencies calculate pay for unused annual leave of terminated, deceased, and
retiring state employees. The methodology employed by state agencies differs
depending upon whether the state employee is terminated, retires, or dies. The
circuit court upheld the agencies' methodology, finding no equal protection
violation in the disparate treatment accorded different employees. The court
also denied employees' motion for class certification. We reverse.
Employees in this case are Catherine Littlefield and Vivian Martin,
former employees of the South Carolina Forestry Commission.1 Littlefield was
employed by the Commission from 1973 until May 1996, when she was laid off.
In January 1996, Littlefield carried over 324.5 hours of annual leave.2 Between
January and May 1996 (at which time she was terminated), Littlefield earned
97.5 more hours3 of annual leave. Prior to receiving notification of her
state employment has not terminated. We concur with this ruling.
2 Pursuant to S.C. Code Ann. § 8-11-610 (1986), employees earn at least
1 and 1/4 days annual leave for each month of employment. Such annual leave
may be carried over from year to year, not to exceed forty-five days. Because
Littlefield worked only 39 hours per week, however, her maximum carryover of
accrued leave was 351 hours (or 43.875 days).
3 Littlefield earned 19.5 hours per month pursuant to 23A S.C. Code Ann.
termination in 1996, Littlefield used 20 hours of annual leave. Upon her
termination, the Forestry Commission deducted the 20 hours leave she took in
1996 from her maximum allowable carryover of 351 hours, and paid her for 331
hours. She claims the 20 hours of annual leave she took prior to her
termination in 1996 should not have been deducted from her maximum
carryover hours, but should simply have been counted as hours earned and used
in her final year of employment.
Martin was employed 40 hours per week by Commission from 1985 until
she was laid off in October 1993.4 In January 1993, she carried forward 45 days
(360 hours) of unused annual leave. Between January and October 1993, she
earned another 100 hours of annual leave, of which she used 94.5 hours. Upon
termination, she was paid 265.5 hours (360 hours minus 94.5 hours = 265.5
hours) of annual leave. She claims she was entitled to be compensated for 360
hours of annual leave, without regard to the 94.5 hours annual leave earned
and taken in 1993, prior to her termination.
1. Does the method of computation used by state agencies in
arriving at termination pay violate equal protection?
2. Did the circuit court err in refusing to certify a class action?
1. EQUAL PROTECTION
The method of calculation of termination pay for state employees is set
forth in S.C. Code Ann. § 8-11-620, which provides:
Upon termination from state employment, an employee may take
both annual leave and a lump-sum payment for unused leave, but
in no event shall such combination exceed forty-five days in
a calendar year except as provided for in § 8-11-610.5 If an
eliminated. She was offered a position 50 miles away in Spartanburg, which
5 The exceptions provided in section 8-11-610 permit employees prior to
1972 who had more than 45 days annual leave to retain those amounts. The
employee dies, his legal representative shall be entitled to a
lump-sum payment for his unused leave, not to exceed forty-five
working days, except as provided for in § 8-11-610. Upon
retirement from state employment or upon the death of an
employee, a lump-sum payment will be made for unused leave, not
to exceed forty-five days, unless a higher maximum is approved
under the provisions of § 8-11-610, and without regard to the
earned leave taken during the calendar year in which the
employee retires.6 (Emphasis supplied).
State agencies interpret this statute to mean that, if state employment is
terminated for reasons other than death or retirement, the employee is paid
a maximum of 45 days annual leave upon termination, less any amounts of
annual leave taken by the employee during the calendar year in which his or
her employment terminates. If an employee dies or retires, however, the
agencies do not deduct annual leave taken during the final calendar year from
the amount carried forward from the previous year.7
The net effect of agencies' interpretation is that if an employee is
terminated (as opposed to dying or retiring), and has used any annual leave
during the final calendar year of employment, the employee's carryover account
from the previous year is reduced by the number of days annual leave used
during the year of termination.8
6 Pursuant to this statute, the office of human resources has enacted 23A
S.C. Code Ann. Reg. 19-703.07 (l) & (m) which essentially track the language
of the statute.
7 Although the statute specifies a maximum of 45 days, agencies state in
their brief that they apply this rule uniformly to all terminated employees,
without regard to whether they have reached the maximum number of
8 The system appears similar to a bank account in which the employee
has a checking and a savings account. "Carryover leave" is annually placed into
the savings account, and earned monthly leave is deposited monthly into the
checking account. As leave is used during the year, it is deducted from the
checking account. Upon termination, any annual leave hours taken during the
final year of employment is also deducted from the amount of total leave then
Employees contend that to essentially "dock" them twice for leave used
in their final year of employment, while not doing so in the case of retirees and
decedents, results in an equal protection violation. We agree.
To satisfy equal protection, a legislative classification must bear a
reasonable relation to the legislative purpose sought to be achieved; members
of the class must be treated alike under similar circumstances; and the
classification must rest on some rational basis. Walker v. South Carolina Dep't
of Highways and Pub. Transp., 320 S.C. 496, 466 S.E.2d 346 (1995). When the
Court considers the constitutionality of a statute passed by the General
Assembly, it construes the statute so as to render it valid if possible. University
of South Carolina v. Mehlman, 245 S.C. 180, 139 S.E.2d 771 (1964).
We find no rational basis for the differential treatment accorded
terminated employees versus retiring or deceased employees. Initially, contrary
to the construction placed upon it by agencies, Section 8-11-620 does not state
that decedents' estates are to be compensated without regard to annual leave
taken in the final year of employment; the statute specifically refers only to
retirees in that regard. Accordingly, there is no rational basis for agencies to
treat decedents differently than other terminated employees.
Moreover, we find no rational basis for the agencies' distinction between
retirees and non-retirees. In the present case, appellant Littlefield worked for
the Forestry Commission for 23 years when she was laid off due to a reduction
in force. There is no indication in the record that her termination was in any
way volitional, or that, but for the layoff, she would not have reached full
retirement. To treat employees who are involuntarily laid off after 23 years of
service differently than employees who manage to avoid such a layoff and reach
retirement is simply irrational.
We agree with Employees that agencies' construction of Section 8-11-620
results in an equal protection violation. We find a proper interpretation of
Section 8-11-620 simply means that upon termination, an employee may not
use or be paid for more than 45 days annual leave, but that annual leave which
was accrued and used during the final year prior to termination may not be
deducted from the amounts of annual leave carried forward from the prior year.
actually "docked" twice for any annual leave used during the final year of
Such an interpretation of the statute results in no equal protection violation,
and renders the statute constitutional. See University of South Carolina v.
Mehlman, 245 S.C. 180, 139 S.E.2d 771 (1964)(when this Court considers the
constitutionality of a statute passed by the General Assembly, we construe the
statute so as to render it valid if possible). Accordingly, we reverse the circuit
court's ruling on this issue.
2. CLASS CERTIFICATION
The circuit court denied the plaintiffs' motion for class certification for two
reasons: 1) the proposed class included current employees who had no
justiciable controversy, and 2) it presumed the state would voluntarily comply
with any final judgment rendered if plaintiffs prevailed.
As to the first asserted basis for denying certification, although we agree
that present employees are not properly included in the class, we see no reason
the circuit court could not, as urged by plaintiffs, have redefined the class to
include only former employees. Accord McGann v. Mungo, 287 S.C. 561, 340
S.E.2d 154 (Ct. App. 1986) (circuit court may require plaintiffs to re-plead or
redefine alleged class).
As to the second asserted basis, the circuit court ruled the state agencies
should be afforded an opportunity to comply voluntarily with any final
judgment invalidating their method of calculation of annual leave. The circuit
court relied on two federal cases for this proposition. Our state class action rule
differs significantly from its federal counterpart. The drafters of Rule 23, South
Carolina Rules of Civil Procedure (SCRCP) intentionally omitted from our state
rule the additional requirements found in Federal Rule 23(B), Federal Rules of
Civil Procedure (FRCP). By omitting the additional requirements, Rule 23,
SCRCP, endorses a more expansive view of class action availability than its
Since adoption of Rule 23, SCRCP, this Court has heard many cases that
have used the class action procedure to allow adequate representatives to
address issues which affect large groups of citizens in our state. See, e.g.,
Redmond v. Lexington County School Dist. No. Four, 314 S.C. 431, 445 S.E.2d
441 (1994); Brown v. County of Horry, 308 S.C. 180, 417 S.E.2d 565 (1992);
Payne v. Duke Power Co., 304 S.C. 447, 405 S.E.2d 399 (1991); South Carolina
Pub. Serv. Auth. v. Citizens and Southern Nat'l Bank of South Carolina, 300
S.C. 142, 386 S.E.2d 775 (1989).
We find the current case especially appropriate for class treatment. The
number of potential plaintiffs is large, there is one main issue of law which is
identical for all plaintiffs, all injuries result from misapplication of the statute
by the agencies, and calculation of damages would not be difficult. Accordingly,
we find the circuit court abused its discretion in refusing class certification. The
judgment below is
FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.