Heard Jan. 8, 1991.
Decided July 8, 1991.
On July 22, 1986, Respondent, Jimmy Wallace (Wallace), was hired by Petitioner, Milliken & Company (Milliken), as an industrial machine operator. He injured his hand on September 10, 1986, while operating a "calendar" machine. A Workers' Compensation claim was filed immediately, for which Wallace received temporary total and permanent disability benefits. After hospitalization and several operations, Wallace returned for light duty work on December 9, 1986, at which time he was terminated.
Wallace instituted this suit under S.C. Code Ann. § 41-1-80 (Cum. Supp. 1990), alleging that his discharge was in retaliation for the filing of the claim. Circuit Court, sitting without a jury, awarded Wallace $12,500.69 lost wages and ordered reinstatement. Court of Appeals affirmed.
I. NATURE OF ACTION
Court of Appeals held the action equitable in nature, so that it had jurisdiction to find facts in accordance with its own view of the preponderance of the evidence.
An employee, discharged in retaliation for instituting a Workers' Compensation Claim, is entitled to lost wages and reinstatement. S.C. Code Ann. § 41-1-80 (Cum. Supp. 1990). Reinstatement is equitable relief, payment of back wages being merely an integral part of the remedy. See Smith v. Hampton Training School for Nurses, 360 F.2d 577, 581 (4th Cir.1966). Moreover, lost wages are deemed restitution, itself an equitable remedy. See EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir.1975), vacated on other grounds, 431 U.S. 951, 97 S.Ct. 2669, 53 L.Ed. (2d) 267 (1977).
We disagree with Wallace's contention that in Patterson v. I.H. Services, Inc.,
We find the action here equitable. Court of Appeals correctly found facts in accordance with its own view of the preponderance of the evidence. See Kelly v. Peeples, 294 S.C. 63, 362 S.E.2d 636 (1987); Townes, supra.
II. TEST FOR CAUSATION
Three different causation tests are applied by courts in retaliatory discharge cases:
The appropriate test causation under § 41-1-80 presents a novel question.
Milliken concedes that the sole factor test does "not achiev[e] the goals of retaliatory discharge legislation, since there normally may exist some other factor that played some part in the discharge." We agree.
Our reading of the statute leads to the conclusion that the appropriate test is that of determinative factor. Section 41-1-80 provides, in part:
We hereby adopt the determinative factor test, which requires the employee to establish that he would not have been discharged "but for" the filing of the claim. Opinion of the Court of Appeals is modified insofar as it applied the substantial factor test.
III. BURDEN OF PROOF
Section 41-1-80 affords an employer certain affirmative defenses, including the violation of specific written company policies. Milliken raised such a defense, alleging that Wallace
We agree with Court of Appeals' affirmance of the trial court's ruling that Milliken had failed to prove its affirmative defense. However, we disagree with its holding that Milliken was required to prove that it discharged Wallace for violation of company policy. 300 S.C. 553, 389 S.E. (2d) at 451. This holding effectively shifted the burden to employer to disprove that the discharge was in retaliation for filing the claim.
While the employer has the burden of proving its affirmative defenses,
760 P. (2d) at 807. (Emphasis supplied.)
While we reject Court of Appeals' implication that the burden was Milliken's to prove the reason for the discharge, we affirm in result, as the record supports a finding that the proffered reason, violation of company policy, was pretext. The trial judge found it significant that "although Defendant asserts that Plaintiff failed to follow safety standards, the testimony of Defendant's own witnesses makes it clear that Plaintiff was never properly trained on the Calendar Machine" and, further, that "the very policies that Defendant
IV. WALLACE'S PROOF
Finally, we hold that Wallace's evidence was sufficient to establish retaliation as the determinative factor for his discharge.
On the issue of pretext, the record establishes that, although Milliken's decision to fire Wallace was purportedly made shortly after the accident, it was not disclosed prior to his return in December. We agree with Court of Appeals that, had the discharge been motivated solely by safety concerns, Milliken would have terminated Wallace immediately. This is especially true in light of the emphasis Milliken claims to have placed on safety. Moreover, company procedures for cleaning of the calendar machine were extremely vague; indeed, the record reflects that the training Wallace received on the machine was patently inadequate.
The opinion of the Court of Appeals is
Affirmed as modified.
GREGORY, C.J., and HARWELL, FINNEY and TOAL, JJ., concur.