Jones v. Rinker Materials Corporation et al

Filing 52

ORDER RULING ON REPORT AND RECOMMENDATIONS adopting Report and Recommendation as to Plaintiff's Title VII and wrongful termination claims only. Hydro's motion for summary judgment is denied as to Plaintiff's Ti tle VII claim and granted as to Plaintiff's remaining claims. re 38 Motion for Summary Judgment re 46 Report and Recommendations filed by Hydro Conduit Corp. Signed by Chief Judge Margaret B Seymour on 3/30/2012. (asni, ) (Main Document 52 replaced on 3/30/2012) (asni, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

Curtis Jones,

)
) C/A No. 3:10-776-MBS-PJG
Plaintiff,
)
)
vs.
)
)
ORDER AND OPINION
Hydro Conduit Corp., d/b/a Rinker
)
Materials Concrete Pipe Division,
)
)
Defendant.
)
____________________________________)
Plaintiff Curtis Jones is a former employee of Hydro Conduit Corp. (“Hydro”). Plaintiff
filed an amended complaint on July 7, 2010, alleging wrongful termination, breach of the
implied covenant of good faith and fair dealing, and breach of contract accompanied by a
fraudulent act. ECF No. 15. Plaintiff also alleged violations of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the Immigration Reform and Control Act,
8 U.S.C. § 1324b (“IRCA”).1 Plaintiff, who is a white native-born American citizen, alleges that
his employment was terminated based on a contrived safety violation so that he could be
replaced by a person of Mexican descent who was not authorized to work in the United States
and who earned lower wages. Plaintiff contends that he has suffered discrimination on the basis
of national origin and race.
This matter is before the court on a motion for summary judgment filed by Hydro on May
12, 2011. ECF No. 38. Plaintiff filed a response in opposition on May 31, 2011. ECF No. 41.
Hydro filed a reply on June 10, 2011. ECF No. 42. In accordance with 28 U.S.C. § 636(b) and

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Plaintiff has abandoned his IRCA claim. See ECF No. 41 at 1 & 10.

Local Rule 73.02, D.S.C., the within action was referred to United States Magistrate Judge Paige
J. Gossett for pretrial handling. On January 10, 2012, the Magistrate Judge issued a Report and
Recommendation in which she recommended that Hydro’s motion for summary judgment be
denied as to Plaintiff’s Title VII and breach of contract claims. ECF No. 46. The Magistrate
Judge recommended that Hydro’s motion be granted as to Plaintiff’s claim for wrongful
discharge in violation of South Carolina public policy. Hydro filed objections to the Report and
Recommendation on January 27, 2012. ECF No. 47. Plaintiff filed a response on February 22,
2012. ECF No. 50.
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28
U.S.C. § 636(b)(1). This court may also receive further evidence or recommit the matter to the
Magistrate Judge with instructions. Id. This court is obligated to conduct a de novo review of
every portion of the Magistrate Judge’s report to which objections have been filed. Id.
FACTS
The following facts are either undisputed or taken in the light most favorable to Plaintiff,
to the extent they are supported by evidence in the record. Plaintiff began working as a full-time
employee for Rinker Materials Concrete Pipe Division in June 2004. ECF No. 38-2 at 26. His
primary job involved operating the Hawkeye machine, which produces large-diameter concrete
pipe. ECF No. 38-5 at 13 & 16. The Hawkeye includes a hopper, a conveyer belt, and a chute
connected in sequence and suspended on an arm approximately ten feet from the ground. Id. at

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16-17. The conveyor belt feeds concrete from the hopper into the chute, and the concrete falls
from the chute into pipe forms on the ground below. Id. at 17; ECF No. 38-6 at 23. The arm can
be rotated from side to side, between two stations on the ground, using a main control. ECF No.
38-6 at 23. Plaintiff’s job required that he regularly clean the conveyor belt by blowing wet
concrete off the belt with compressed air before the concrete hardened. Id. at 31. Plaintiff used
a seven-foot aluminum tube connected to a compressed air hose to remove the wet concrete.
ECF No. 38-2 at 41. Plaintiff would stand on a platform ladder to do this job. Id. at 71.
Hydro has a “Lock-Out/Tag-Out” (“LOTO”) policy to ensure the safety of employees
who are working near potentially dangerous machinery. See ECF No. 38-2 at 148-51. The
LOTO policy requires the “isolation of electrical, mechanical, hydraulic, pneumatic, chemical,
thermal, gravitational, or other energy prior to equipment maintenance or removal and when
working within [the] ‘danger zone.’” Id. at 150. The “danger zone” is defined as “[t]hat area
within or around a piece of equipment or machine where a sudden energization or release or
residual energy could cause an employee physical harm.” Id. According to Plaintiff’s direct
supervisor, James Eager, any employee who is “going to work on [a] machine or clean out a
machine” must lock out the machine by disconnecting its power sources and placing locks that
prevent the power sources from being reconnected. ECF No. 38-5 at 31. However, Safety
Coordinator Ryan Kistler testified that lockout would not necessarily be required for every
cleaning procedure, such as “floor-type level maintenance” on the Hawkeye including “cleaning
the table or scraping off some of the form” or “just blowing off with the air wand or something
like that.” ECF No. 38-6 at 64-65.
Hydro’s LOTO “Zero Tolerance Policy” states, in relevant part, as follows:

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B.

Violation of the Lock-Out/Tag-Out procedures is subject to disciplinary
action up to and including termination. When a violation of the LockOut/Tag-Out procedure is believed to have occurred, the individuals
involved will be suspended. An investigation will be conducted and the
results reported to management. After a review of the facts, and with
consideration of any mitigating circumstances, disciplinary action will be
taken, as appropriate.

C.

[Hydro] shall have “Zero Tolerance” whenever a[n] employee is found to
have knowingly violated, or if a supervisor or manager, knowingly
allowed a violation of Lock-Out/Tag-Out procedures; in such case the
disciplinary action will be termination.

ECF No. 38-2 at 148-49. On June 3, 2004, Plaintiff signed a “Lockout/Tagout Procedure
Certification” acknowledging that he had been trained on LOTO procedures for machines
including the Hawkeye. The form included the following language:
I understand the hazards of electricity, hydraulic force and machines in motion. I
understand that I have been trained to protect myself by not reaching into
(breaking the plane) any machinery until I have personally Locked out and/or
Tagged out all sources of energy and ensured that the machinery controls have
been disabled.
...
I understand that VIOLATING THE LOCKOUT-TAGOUT PROCEDURE will
result in disciplinary action up to and including termination of employment.
ECF No. 38-2 at 144. Plaintiff states that he and other Hydro employees were very concerned
about safety, and that the zero-tolerance policy was “serious business.” Id. at 44-45.
On January 20, 2008, Plaintiff was cleaning the Hawkeye conveyor belt according to the
procedure described above when Eager observed that Plaintiff had not locked out the power
sources for the Hawkeye. ECF No. 38-2 at 39; ECF No. 38-5 at 29-31. Eager did not say
anything to Plaintiff but went to get Ryan Kistler because Eager would not confront an employee
about a LOTO violation without a witness. ECF No. 38-5 at 31. Eager and Kistler confronted

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Plaintiff about his failure to lock out the power sources. Id. at 50-51. Plaintiff stated that he was
doing the procedure the way he was trained and the way it had always been done, and that LOTO
was not required to clean the conveyor belt in this manner. ECF No. 38-2 at 39-40. Eager told
Plaintiff that an investigation must be done, and instructed him to go home and return the next
day. ECF No. 38-6 at 39. Plaintiff finished cleaning and then went home. ECF No. 38-5 at 5152.
Plaintiff returned the next morning and met with Eager and Kistler. ECF No. 38-5 at 53.
Eager states that he informed Plaintiff that he would be suspended for three days. Id. However,
Kistler states that Plaintiff was told that he was immediately terminated. ECF No. 38-6 at 41. In
any event, Eager contacted Operations Manager James Blankenship and General Manager
Dwayne Green and explained what he had observed. ECF No. 38-4 at 7 & 14; ECF No. 38-5 at
6 & 57. Blankenship states that Plaintiff was terminated following an investigation that revealed
a LOTO violation. ECF No. 38-4 at 15. Blankenship and Green had a telephone conversation
with Plaintiff about the incident in the course of the investigation. Id. at 15-16. On January 24,
2008, Dwayne Green sent a letter to Plaintiff stating that his employment was terminated
pursuant to the LOTO zero-tolerance policy. ECF No. 38-2 at 167. No Hydro manager has
stated that Plaintiff was performing his job unsatisfactorily before the alleged LOTO violation,
or that there was any other reason to terminate his employment. Additionally, no Hydro
manager has stated that Plaintiff’s general cleaning procedure was improper; rather, the only
complaint is that Plaintiff had not locked out the power supplies before cleaning the conveyor
belt.
Plaintiff states that he was never instructed that the LOTO policy applied to the cleaning

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of the Hawkeye conveyor belt with compressed air tube. ECF No. 38-2 at 40. Plaintiff further
states that there is “no danger” during this procedure, and that “none of [his] body parts are near
a moving part within seven feet.” Id. at 45. Plaintiff insists that “[t]he machine does not have to
be locked out during th[is] procedure.” Id. at 46. He states that the purpose of using a sevenfoot pole and a short ladder is to ensure that neither his body nor his tools are “in” the machine
and to ensure that his body is “out of the way” and would not be hit if the machine were to turn.
Id. at 59. Approximately one month before Plaintiff was terminated, Mike Shuk,2 Dwayne
Green, and Eager observed Plaintiff cleaning the conveyor belt using a ladder and a seven-foot
compressed air tube and congratulated him on his safety practices. Id. at 46-47.
After Plaintiff’s termination, his previous job on the Hawkeye was given to Sidronio
Lopez. ECF No. 38-6 at 20. Plaintiff had previously trained Lopez to run the Hawkeye. ECF
No. 38-2 at 108. Lopez is originally from Mexico and of Hispanic descent, and he allegedly told
Plaintiff that he was working in the United States illegally. ECF No. 38-6 at 52-53; ECF No. 382 at 119; ECF No. 41-7 at 8. Lopez was out on leave due to an injury, and he returned to work
around the time Plaintiff was terminated. ECF No. 38-2 at 118-19. Although Plaintiff was
earning $16.85 per hour in 2008 before he was terminated, Lopez was earning only $12.82 in
2008. ECF No. 41-7 at 8.
At the time of Plaintiff’s termination, eight of the twenty-four employees at the Columbia
Pipe location were Hispanic. See ECF No. 41-7 at 8. Between April 8, 2004, and April 1, 2009,
sixteen employees at the Columbia Pipe location were involuntarily terminated; of these, nine
were Hispanic. See ECF No. 38-3 at 62. Additionally, Plaintiff was one of seven employees

2

Mr. Shuk’s job title is not clear from the record.
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involuntarily terminated in 2008; the six other employees were all Hispanic. See id. Eager,
Plaintiff’s supervisor who witnessed the alleged LOTO violation, is a United States citizen of
Hispanic descent who was born in Mexico. ECF No. 38-5 at 7 & 76.
STANDARD OF REVIEW
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall
be granted when a moving party has shown “[that] the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” The evidence presents a genuine issue of material fact if a “reasonable jury could return
a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986). The facts and any inferences drawn from the facts should be viewed in the light most
favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment bears the initial burden of demonstrating to the district
court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party makes this showing, the opposing party must set forth specific
facts showing there is a genuine issue for trial. Id.
DISCUSSION
I.

Discrimination Based on Race and National Origin
A plaintiff may demonstrate discrimination using direct or circumstantial evidence.

Absent direct evidence, a plaintiff alleging that his employment was terminated for
discriminatory reasons must establish a prima facie case of discrimination by showing that (1) he
is a member of a protected class; (2) his employment was terminated; (3) he was performing his

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job duties at a level that met his employer’s legitimate expectations at the time of the
termination; and (4) the position remained open or was filled by similarly qualified applicants
outside the protected class. Miles v. Dell, Inc., 429 F.3d 480, 485 (4th Cir. 2005). Once a
plaintiff establishes a prima facie case of discrimination, “the burden of production then shifts to
the employer to articulate a legitimate, non-discriminatory justification for its allegedly
discriminatory action.” Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir.
2010). If the employer carries this burden, the plaintiff must then “prove by a preponderance of
the evidence that the neutral reasons offered by the employer were not its true reasons, but were
a pretext for discrimination.” Id. (quotation omitted). In other words, the plaintiff must
ultimately prove that he was the victim of intentional discrimination. Id.
A.

The Magistrate Judge’s Report and Recommendation

The Magistrate Judge first found that the only disputed element of Plaintiff’s prima facie
case of discrimination is whether Plaintiff was meeting Hydro’s legitimate expectations at the
time he was terminated. ECF No. 46 at 8. The Magistrate Judge noted that “the sole reason
offered by Hydro in support of its position that [Plaintiff] was not meeting its expectations is the
alleged safety incident at issue for which [Plaintiff] was terminated.” Id. However, the
Magistrate Judge concluded that a reasonable jury could find that Plaintiff was meeting Hydro’s
legitimate expectations. Id. The Magistrate Judge stated as follows:
Although Hydro argues that Jones was not meeting its expectations because he
violated the LOTO policy, a reasonable jury could agree with Jones that the
policy did not apply to the particular cleaning procedure in which he was
engaged. For example, the parties do not apparently dispute that Jones was never
specifically instructed to use the LOTO procedure when cleaning the belt of the
Hawkeye. Nor does the written policy expressly require it. Moreover, Hydro
does not dispute that Jones cleaned the belt without using the LOTO procedure
virtually every day of his employment in plain view of the very persons who
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ultimately reported him for the alleged violation. Although Hydro contends that
Jones’s supervisors never noticed that he was not using LOTO while cleaning the
belt of the Hawkeye until the day of the incident at issue, a jury could reasonably
infer that Jones’s supervisors were aware that he was not locking out and tagging
out while cleaning the belt but made no comment because it was not required for
that particular procedure. In fact, Jones avers that approximately one month
before his termination, his supervisors commended him on his attention to safety
while he was cleaning the belt.
Id. at 8-9.
The Magistrate Judge also found that Plaintiff had presented evidence from which a jury
could reasonably find that Hydro’s stated reason for discharging him was pretextual. ECF No.
46 at 9. The Magistrate Judge noted that selective application of a facially neutral policy or an
employer’s failure to follow its own policies may demonstrate pretext. Id. The Magistrate Judge
found that “the parties do not dispute that [Plaintiff] never locked out and tagged out the
Hawkeye before cleaning the belt in all of his years of employment with Hydro but was never
disciplined or even warned about a violation of this ostensibly vital safety procedure until
Sidronio Lopez was ready to return to work.” Id. The Magistrate Judge also found that Hydro
had not identified any evidence showing that any LOTO violation by Plaintiff was a “knowing”
violation requiring termination. Id. at 10 n.5. The Magistrate Judge found that Plaintiff had
presented evidence that “the decision to terminate him was made prior to any investigation and
without consideration of any mitigating circumstances, such as [his] favorable work history and
safety record and Hydro’s failure to instruct him that LOTO was required for the cleaning
procedure at issue.” Id. at 10. Finally, the Magistrate Judge found that “the record contains
evidence from which a jury could reasonably find that a Latino employee, Roman Lopez, also
violated the LOTO policy while working under a crane but was merely suspended for three days
rather than terminated.” Id.
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B.

Hydro’s Objections

Hydro first argues that overwhelming evidence establishes that the LOTO policy applied
to the cleaning procedures Plaintiff was performing when he was accused of violating this
policy. ECF No. 47 at 3. Hydro argues that it is irrelevant that “the specific cleaning procedure
in which [Plaintiff] was engaged is not discussed in any LOTO policy” because no specific
cleaning or maintenance procedures are addressed in the LOTO policy – rather, the LOTO
policy applies to all servicing and maintenance procedures. Id. at 5. However, this is
contradicted by the testimony of Ryan Kistler, who stated that LOTO is not necessarily required
for every cleaning procedure. See ECF No. 38-6 at 64-65. Furthermore, it is not clear that
Plaintiff was working within the “danger zone,” defined as “[t]hat area within or around a piece
of equipment or machine where a sudden energization or release or residual energy could cause
an employee physical harm.” See ECF No. 38-2 at 150. According to Plaintiff’s deposition
testimony, he was standing at least seven feet away from the conveyor belt and did not place
either his body or compressed air tube within the moving parts of the Hawkeye during the
cleaning. Plaintiff also testified that he was standing out of the range of the moving arm and
would not have been hit even if the arm had moved. Although, as Hydro notes, every member of
management involved in Plaintiff’s termination has stated that LOTO was required for this
procedure, this conflicts with Plaintiff’s testimony that these same managers had previously
commended him for performing the job without locking out the power supplies.
Hydro correctly points out that the question is not whether an employer’s reason for
terminating an employee is correct – it is whether the employer genuinely believed and was
motivated by the stated reason. ECF No. 47 at 10. However, because direct evidence of

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subterfuge is not likely to exist in most cases, circumstantial evidence will frequently be the only
means of proving an employer’s motives. Here, Plaintiff has testified that he performed the
cleaning procedure without locking out the power supplies multiple times daily for nearly four
years. Eager testified that he saw Plaintiff for up to five hours each day while walking around
the plant but had never noticed any violation before. ECF No. 38-5 at 36. Also, as noted above,
Plaintiff testified that approximately one month before he was terminated, Eager and two Hydro
managers had observed him cleaning the conveyor belt according to his usual procedure and had
congratulated him on his safety practices. It would not be unreasonable for a jury to conclude,
based on this evidence, that someone in Hydro’s management must have seen Plaintiff cleaning
the conveyor belt without locking out the power supplies but failed to discipline him because
management did not consider Plaintiff’s conduct to be a LOTO violation. If an employer
suddenly terminates an employee for doing something that has long been condoned, a reasonable
juror could find that this conduct is not the true reason for the termination.
Hydro argues that there is no evidence that the LOTO policy was applied differently to
different employees. ECF No. 47 at 12. However, Plaintiff testified that Roman Lopez, a
Mexican employee, committed a LOTO violation but was not terminated. See ECF No. 38-2 at
112-13. According to Plaintiff’s testimony, Bryan Drake stated that Lopez had committed a
LOTO violation by working under a crane with a suspended load, but gave Lopez only a threeday suspension rather than terminating him. Id. Hydro notes that the “Employee Warning
Notice” signed by Drake on December 19, 2005, shortly after this incident, stated that it was a
“violation of getting under a suspended load” and did not mention any LOTO violation. ECF
No. 42-5 at 5-6. Hydro also notes that a December 16, 2005 e-mail sent by Drake to various

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Hydro employees characterized the incident as a “critical safety rule violation” and made no
reference to LOTO. Id. at 8. Although Hydro had identified contrary evidence, the court cannot
find that no reasonable juror could believe Plaintiff’s testimony.
Because Plaintiff has put forth evidence sufficient to show a prima facie case of
discrimination and to show that the stated reason for termination is pretextual, summary
judgment is not appropriate in this case. “In appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that the employer is dissembling to cover up
a discriminatory purpose.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147
(2000). Although such a showing is not always adequate to survive summary judgment, in this
case there is neither a conclusive alternative reason for Plaintiff’s termination nor “abundant and
uncontroverted” evidence that no discrimination occurred. See Reeves, 530 at 148. Because
Plaintiff’s claims turns on numerous disputed issues of fact, summary judgment is denied.
II.

Breach of Contract
“South Carolina has long recognized the doctrine of employment at-will,” which “allows

either party to terminate the employment ‘for any reason or no reason’ without being subject to a
claim for breach of contract.” Grant v. Mount Vernon Mills, Inc., 634 S.E.2d 15, 19 (S.C. Ct.
App. 2006). “But when an employee’s at-will status has been altered by the terms of an
employee handbook, an employee, when fired, may bring a cause of action for wrongful
discharge based on breach of contract.” Hessenthaler v. Tri-County Sister Help, 616 S.E.2d 694,
697 (S.C. 2005). “Mandatory, progressive discipline procedures may constitute enforceable
promises. . . . Such procedures typically provide that an employee may be fired only after certain
steps are taken. When definite and mandatory, these procedures impose a limitation on the

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employer’s right to terminate an employee at any time, for any reason.” Hessenthaler, 616
S.E.2d at 698. “[S]uch provisions must be stated in mandatory or promissory terms to create an
issue of fact as to whether an implied contract exists.” Bagwell v. Fafard, Inc., 2007 WL
2022187 at *4 (D.S.C. July 11, 2007). Furthermore, “the handbook promise must restrict the
right of an employer to discharge.” Lawrence v. Westinghouse Savannah River Co., Inc., 2005
WL 3968031 at *4 (D.S.C. March 31, 2005).
“The issue of whether an employee handbook constitutes a contract should be submitted
to the jury when the issue of the contract’s existence is questioned and the evidence is either
conflicting or is capable of more than one inference.” Hessenthaler, 616 S.E.2d at 697.
However, “a court should intervene to resolve the handbook issue as a matter of law . . . if the
handbook statements and [any] disclaimer, taken together, establish beyond any doubt tha[t] an
enforceable promise either does or does not exist.” Id.
A.

The Magistrate Judge’s Report and Recommendation

The Magistrate Judge found that “a jury could reasonably conclude that Hydro’s LOTO
policy altered Jones’s at-will employment by providing mandatory procedures that Hydro was
bound to follow in disciplining an employee for a violation of the LOTO policy.” ECF No. 46 at
11-12. The Magistrate Judge further stated that “[t]he policy is couched in mandatory, not
permissive, terms, and no evidence in the record suggests that alteration of the at-will
employment relationship was disclaimed.” Id. at 12. Accordingly, the Magistrate Judge found
that Hydro was not entitled to judgment as a matter of law.
B.

Hydro’s Objections

Hydro objects to the Magistrate Judge’s determination that the language of the LOTO

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zero-tolerance policy may create an enforceable promise. ECF No. 47 at 18-19. Although
Hydro acknowledges that mandatory progressive discipline procedures may create enforceable
promises, it argues that “[u]nlike those cases where an employer’s handbook or discipline policy
sets out certain escalating steps that must be taken before an employee can be terminated, such
as verbal counseling followed by written warnings and then termination, the language of the
LOTO policy in this case only requires that discipline be administered.” Id. at 19. Plaintiff
points to language in the LOTO policy stating that the individuals involved “will be suspended,”
that an investigation “will be conducted,” and that “[a]fter review of the facts, and with
consideration of any mitigating circumstances, disciplinary action will be taken as appropriate.”
ECF No. 50 at 7. Plaintiff also points to language stating that there will be zero tolerance if an
employee “is found to have knowingly violated” LOTO procedures or a supervisor “knowingly
allowed a violation.” Id. Accordingly, Plaintiff argues, “a reasonable jury could find . . . that
Defendant was required to consider mitigating circumstances and find a knowing violation
before terminating an employee for a LOTO violation.” Id.
As Plaintiff notes, the LOTO policy contains no disclaimer stating that the terms of atwill employment are not altered. However, the court finds that promises to conduct an
investigation and to consider mitigating circumstances are too vague and indefinite to form the
basis of a contract. The policy does not elaborate on the type of “investigation” that must be
conducted, and there is no reason why the mere observation of a violation by a supervisor and a
brief discussion with the employee could not constitute an “investigation.” Similarly, the policy
does not specify what sort of factors should be considered as “mitigating circumstances,” or how
the decision makers are to weigh them. Furthermore, the policy allows disciplinary action to be

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taken “as appropriate” and does not require any particular findings before certain disciplinary
actions are taken. Rather than setting out progressive steps of discipline to which an employee is
entitled before being terminated, the policy generally describes the internal procedures Hydro
will use in deciding how to discipline an employee for an alleged LOTO violation. Such
language cannot reasonably be viewed as “restrict[ing] the right of an employer to discharge.”
Lawrence, 2005 WL 3968031 at *4. Accordingly, Hydro is entitled to summary judgment on
Plaintiff’s contract claims.
III.

Wrongful Termination in Violation of Public Policy
The Magistrate Judge recommended that summary judgment be granted as to Plaintiff’s

claim for wrongful termination. ECF No. 46 at 12. The Magistrate Judge stated:
In support of his claim, Jones relies on a statute that was enacted subsequent to
his termination and provides out-of-state authority to support his argument that
the statute reflects the previously existing public policy of the state of South
Carolina. The court observes that the statute upon which Jones relies is contained
in the South Carolina Illegal Immigration Reform Act. Immigration reform is a
volatile political issue and rapidly changing area of the law; against this backdrop,
the court finds it inappropriate to presume that the legislative consensus necessary
to create a new cause of action predated the Act’s passage to the degree that it
represented a clear mandate of the state’s public policy. See Barron v. Labor
Finders of South Carolina, 713 S.E.2d 634, 638 (S.C. 2011); Ludwick v. This
Minute of Carolina, Inc., 337 S.E.2d 213, 216 (S.C. 1985).
Id. Although Plaintiff relies upon Evans v. Taylor Made Sandwich Co., 522 S.E.2d 350 (S.C. Ct.
App. 1999), to argue that “whether a discharge violates the public policy of the State is best left
to the jury,” this holding was explicitly overruled by Barron in 2011. Barron, 713 S.E.2d at
616-17. The court agrees with the Magistrate Judge’s analysis and holds that the South Carolina
Illegal Immigration Reform Act did not represent a “clear mandate of the state’s public policy”
prior to its passage. Accordingly, Hydro is entitled to summary judgment on this claim.

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CONCLUSION
After a de novo review of the record in this case, the court adopts the Magistrate Judge’s
analysis as to Plaintiff’s Title VII and wrongful termination claims only. Hydro’s motion for
summary judgment is denied as to Plaintiff’s Title VII claim and granted as to Plaintiff’s
remaining claims. The case will be placed on a future trial roster.
IT IS SO ORDERED.

s/ Margaret B. Seymour
Margaret B. Seymour
Chief United States District Judge
Columbia, South Carolina
March 30, 2012.

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