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2004-UP-159 - Lovette c. Sonoco Products

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Unpublished Opinion No. 2004-UP-159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 Anchor’s 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 Sonoco’s retirement pension plan after two years and their years of employment with Anchor would be included in calculating eligibility for Sonoco’s retirement pension plan;  (8)  insurance premiums would be waived for at least three years; (9)  employees could roll over their 401(k) contributions to Sonoco’s 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 employee’s 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 Appellant’s 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 offeree’s 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 you’d 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 employee’s 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.  Sonoco’s 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 court’s 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 Franklin’s “lunch run” system.  They were given ample opportunity to apologize or explain these absences, evidence of Sonoco’s 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 court’s 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.