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2012-UP-133 - Holbert v. SC State Board

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Kenneth Lee Holbert, Jr., Appellant,

v.

South Carolina State Board for Technical and Comprehensive Education, Respondent.


Appeal From the Administrative Law Court
Marvin F. Kittrell, Chief Administrative Law Judge


Unpublished Opinion No.  2012-UP-133 
Heard February 16, 2012 – Filed February 29, 2012


AFFIRMED


J. Falkner Wilkes, of Greenville, for Appellant.

Deidre D. Laws, of Columbia, for Respondent.

PER CURIAM: Greenville Technical College (the College) terminated Kenneth Lee Holbert, Jr.'s employment for his failure to return to work following an extended medical leave.  The State Employee Grievance Committee (Committee) upheld the termination, and the Administrative Law Court (ALC) affirmed.  Holbert appeals, arguing the evidence in the record does not support his termination.  We affirm pursuant to Rule 220(b), SCACR, and the following authorities: 

1. As to whether the ALC erred in declining to find wrongful termination because (1) Holbert timely provided a medical release from Dr. Nelson and (2) Holbert timely returned to work[1]Risher v. S.C. Dep't of Health & Envtl. Control, 393 S.C. 198, 204, 712 S.E.2d 428, 431 (2011) ("A decision of the ALC should be upheld . . . if it is supported by substantial evidence in the record."); Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981) (holding substantial evidence is "evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action" and is not "a mere scintilla of evidence nor the evidence viewed blindly from one side of the case" (internal citation omitted)); Corbin v. Kohler Co., 351 S.C. 613, 618, 571 S.E.2d 92, 95 (Ct. App. 2002) ("[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence." (internal citation omitted)). 

2. As to Holbert's remaining issues:  Brown v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 519, 560 S.E.2d 410, 417 (2002) (stating issues not raised to and ruled upon by the ALC are unpreserved for appellate review); Home Med. Sys., Inc. v. S.C. Dep't of Revenue, 382 S.C. 556, 562, 677 S.E.2d 582, 586 (2009) (holding when the ALC does not rule on an issue properly raised to it, the issue is unpreserved for appellate review unless raised in a motion pursuant to Rule 29(D), SCALCR, and Rule 59(e), SCRCP); Risher, 393 S.C. at 208 n.5, 712 S.E.2d at 433 n.5 (holding issue preservation rules apply to cases decided prior to Home Medical). 

AFFIRMED. 

PIEPER and GEATHERS, JJ., and CURETON, A.J., concur. 


[1] Some confusion appears to exist regarding the leave benefits available under the Family Medical Leave Act (FMLA) and those available under the Americans with Disabilities Act (ADA).  Federal law provides for up to twelve weeks of leave under the FMLA.  29 U.S.C.A. §§ 2601–2654 (2009 & Supp. 2011).  In addition, South Carolina law permits employees to qualify for up to one hundred eighty calendar days of leave, with the possibility of limited extensions, pursuant to the ADA.  S.C. Code Ann. Regs. 19-700, 19-712.01(I) (2011).  The two types of leave benefits may overlap: "Leave taken under [regulation 19-712.01] may qualify as [FMLA] leave and, if so, will run concurrently."  Reg. 19-712.01.