ORDERS:
ORDER
The
above-captioned matter is before the South Carolina Administrative Law Court
(“ALC” or “Court”) pursuant to a notice of appeal filed by Sara Davis (“Davis”)
on August 19, 2008. Davis seeks reversal of a decision by the Director of the
Office of Human Resources, State Budget and Control Board (“Director”), which upheld the
termination of her employment with The Center for Child and Family Studies,
Education & Community Initiative, Citizen Review Panels (the “Center”) by
the University of South Carolina (“Respondent” or “USC”) pursuant to Respondent’s
Reduction-in-Force plan (“RIF Plan”).
After
timely notice to the parties, oral arguments were held on February 11, 2009 at
the ALC in Columbia, South Carolina. Based upon the record, the parties’
briefs and oral arguments, and upon applicable law, I find that this matter
must be remanded to the Director for the initiation of the grievance process
before the State Employee Grievance Committee (“Committee”).
BACKGROUND
At
the date of her termination, Davis was a full-time classified employee position
with Respondent and was its Program Coordinator for the Center. The program
creates, supports, and coordinates with state Citizens Panels. This program is
federally-funded through the South Carolina Department of Social Services
(“DSS”) and DSS delegated the function, along with its responsibilities, to the
Center.
On
April 1, 2008, Respondent wrote to Davis, notifying her that her position as
Program Coordinator was being eliminated effective May 2, 2008, pursuant to the
Center’s RIF Plan. The letter stated that the needs of the Center had changed
and that its staff had been reorganized to meet those changes. The
reorganization involved the elimination of two positions: one full-time
position (Davis) and one temporary grant position.
On May 16, 2008 Davis wrote a letter to Johnny M. Jones, Ph.D, Interim Chair of
the Center, requesting a review of her employment termination pursuant to
Respondent’s internal grievance process. On May 22, 2008, Jeffery G. Cargile, Respondent’s
Director of Human Resource, Programs and Services, wrote a letter to Davis
stating that, pursuant to Respondent’s grievance policy, “[a]
reduction-in-force may not be appealed by an affected employee unless the
appeal is based on an inconsistent or improper application of a
reduction-in-force policy, procedure or plan.” (R. at 12). In addition, Mr.
Cargile wrote that Davis had not provided “any material issue of fact to
support her assertion that [USC] improperly applied a reduction-in-force
procedure.” Id. Further, Mr. Cargile stated that Respondent’s RIF Plan
was administered consistently and properly, and that Davis’ appeal did not
constitute an action that could grieved through Respondent’s internal grievance
process.
After
receipt of Respondent’s letter, on June 19, 2008 Davis wrote a letter to the
Director asking for review of Respondent’s final agency decision pursuant to
S.C. Code Ann. § 8-17-330. On July 23, 2008, the Director wrote a letter to
Davis in which he denied the appeal. He concluded that Davis had not raised a
material issue of fact as to an improper or inconsistent application by
Respondent of its RIF Plan. The matter was neither heard by the Committee nor
assigned to a mediator/arbitrator.
On
August 19, 2008, Davis filed a notice of appeal with this Court.
STANDARD
OF REVIEW
Title 8, Article 5, entitled “State Employee
Grievance Procedure” (the “Act”), contains definitional provisions and
procedures for “covered employees” which are intended to assist them in
resolving appeals of adverse employment actions. See generally S.C. Code Ann. §§ 8-17-320 and 8-17-370; § 8-17-320(7) (defining “covered
employee”). Covered employees must first seek resolution of the matter
through agency grievance procedures, established by each agency, subject to
approval by the South Carolina Budget and Control Board, Office of Human
Resources (“OHR”). If an agency issues an adverse final decision against an
employee, the employee may appeal that decision to the Director by filing a
written appeal within ten (10) calendar days from receipt of the agency’s final
decision or within fifty-five (55) calendar days after the employee files the
grievance with the agency. § 8-17-330.
The
termination of an employee by an agency pursuant to its RIF Plan is considered
a grievable action only if the agency, or the Director, “determines that there
is a material issue of fact that the agency inconsistently or improperly
applied its reduction in force policy or plan.” § 8-17-330. See also § 8-17-350. If the Director determines that there is a material issue of fact
regarding the employee’s appeal, the matter is forwarded to either the
Committee or to mediation/arbitration, depending upon the subject matter of the
appeal. However, if the Director determines that there is no material issue of
fact regarding the employee’s appeal, that determination may be appealed to the
ALC pursuant to its appellate jurisdiction. § 1-23-600(D).
This
Court’s appellate review of final decisions in state employee grievance
proceedings is governed by the standards provided in S.C. Code Ann. § 1-23-380
(Supp. 2008). Section 1-23-380 (5) provides that the ALC “may not substitute
its judgment for the judgment of the [Respondent] as to the weight of the
evidence on questions of fact.” However, pursuant to the statutory provision, this
Court,
“may
reverse or modify the decision if substantial rights of the appellant have been
prejudiced because the administrative findings, inferences, conclusions or
decisions are:
(a)
in violation of constitutional or statutory provisions;
(b)
in excess of the statutory authority of the [Board];
(c)
made upon unlawful procedure;
(d)
affected by other error of law;
(e)
clearly erroneous in view of the reliable, probative, and substantial evidence
on the whole record; or
(f)
arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.”
Id.; see
also Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981)
(stating “‘[s]ubstantial evidence’ is not a mere scintilla of evidence nor the
evidence viewed blindly from one side of the case, but 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.” Id. at 135, 276 S.E.2d at 306. Accordingly,
“[t]he ‘possibility of drawing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s finding from being supported by
substantial evidence.’” Grant v. S.C. Coastal Council, 319 S.C. 348, 461
S.E.2d 388 (1995) (citing Palmetto Alliance, Inc. v. S.C. Pub. Serv. Comm.,
282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984)).
An
abuse of discretion occurs when an administrative agency’s ruling is based upon
an error of law, such as application of the wrong legal principle; or, when
based upon factual conclusions, the ruling is without evidentiary support; or,
when the trial court is vested with discretion, but the ruling reveals no
discretion was exercised; or, when the ruling does not fall within the range of
permissible decisions applicable in a particular case, such that it may be
deemed arbitrary and capricious. State v. Allen, 370
S.C. 88, 94, 634 S.E.2d 653, 656 (2006) (application of standard to circuit
court) (citing Fontaine v. Peitz, 291 S.C. 536, 539, 354 S.E.2d 565, 566
(1987); see also Converse
Power Corp, 350 S.C. 39, 47 564 S.E.2d 341, 345 (Ct. App. 2002) (quoting Deese
v. State Bd. of Dentistry, 286 S.C. 182, 184-85, 332 S.E.2d 539, 541 (Ct.
App. 1985) (“A decision is arbitrary if it is without a rational basis, is
based alone on one’s will and not upon any course of reasoning and exercise of
judgment, is made at pleasure, without adequate determining principles, or is
governed by no fixed rules or standards.”).
DISCUSSION
The
sole issue before this Court is whether Davis should be granted a hearing with the
Committee concerning her termination.
S.C.
Code Ann. § 8-17-350 (Supp. 2007) requires the Director, when an appeal is
filed by an employee, to perform certain duties:
[T]he Director shall
assemble all records, reports, and documentation of compliance of the earlier
proceedings on the grievance and review the case to ascertain that there has
been full compliance with established polices, procedures, and regulations
within the agency involved and shall determine whether or not the action is
grievable to the committee or a mediator-arbitrator.
§ 8-17-350. Respondent
contends that the Director adhered to this provision in making its
determination that the Center’s termination of Davis did not constitute a
grievable action. The Director reviewed the record and made a determination
that there was no “material issue of fact that the agency inconsistently or
improperly applied its reduction in force policy or plan.” § 8-17-330.
Davis
avers that the RIF of her job position was taken for personal or punitive
reasons. She alleges that the adoption of the RIF Plan (which eliminated her
job position) was no more than a pretext to remove her for personal reasons.
She stated that there was animosity between the reorganizing parties and
herself prior to her termination and that Respondent had previously disciplined
her without just cause. Respondent agrees that that it would be an improper
application of the RIF policy for a reorganizing party to terminate a
classified employee if the sole motivating factor was based upon a personal
desire. However, Respondent asserts it properly applied the RIF Plan in
terminating Davis.
Secondly,
Davis argues that her position as a Program Coordinator was funded in part by a
federal grant and that it was mandated by the grant. She opined that
Respondent implemented the RIF Plan without reasonable inquiry of certain
requirements requiring it to maintain her job position.
Although
the Director is not required to make a determination of the facts in these
reviews, the Director is required to determine whether a material issue of fact
exists, not unlike the action by a judge reviewing a motion for summary
judgment or a motion to dismiss. Accordingly, the duty of the Director is to
review the record to see if an issue exists based upon the facts presented. If
such exists, then he is required by statute to refer the matter to mediation or
to the statutory fact finder – the Committee – which will conduct its hearing
process and make a determination whether the material allegations by the
employee are true and have merit.
In
its review of the record, the Court finds that the only review of Davis’ claims
was by the Director who decided that there was an issue based upon the facts
but that the facts did not show that a grievable action existed. The Director
assumed the duties of the Committee and made no findings supportive of his
ultimate conclusion. Although the statute provides a gate-keeping function through
the Director for terminations by reductions in force to determine if facts
exist as to whether the force reduction was either improperly or
inconsistently applied, allegations that the termination in this instance was a
pretext for an unwarranted, personality-driven termination create a fact
question that mandate that Davis be provided a due process hearing. The
overriding intent of the Act is the general right of a classified and eligible
employee to grieve adverse employment actions by an agency within the state. These
allegations are similar to the allegations of punitive use of reclassifications
of employees for which the South Carolina Supreme Court found a hearing
necessary despite the fact that reclassifications, absent salary reductions, were
generally not grievable. See Wise v. S.C. Tax Comm’n, 297 S.C.
239, 376 S.E.2d 262 (1989) (holding that an allegation of punitive
reclassification required a hearing for such determination even if such
reclassification would not normally be a grievable event under the Act). The Director
noted in his determination that Davis made factual allegations; however, he found
they did not rise to an issue which constituted a grievance. The allegations
by Davis are of a serious nature, and they must be heard by the Committee for a
determination of their merit. While the Court is not implying that Davis’
appeal is meritorious, Davis presented facts to the Director addressing a
possible improper or inconsistent application by Respondent of its RIF Plan and
Davis is entitled to statutory mediation and a grievance hearing before the
Committee.
Accordingly,
the Court remands this matter to the Director with the direction that he allow
for the mediation as authorized by law, and that the matter be referred to the
Committee, if mediation is unsuccessful, to conduct its review process and
issue a determination which contains findings and conclusions supportive of its
ultimate decision.
ORDER
For the reasons
set forth above, it is hereby
ORDERED that the Director’s decision in this matter is REVERSED; and it is further
ORDERED that the Director shall appoint a mediator, pursuant to S.C. Code Ann. §
8-17-360, to Davis’ appeal within thirty (30) days from the date of this Order;
and it is further
ORDERED that if an agreement cannot be reached between the parties within the statutory
mediation process, the Director shall immediately forward Davis’ appeal and
record to a designated Committee Panel with the direction that it conduct a due
process hearing in accordance with the provisions of S.C. Code Ann. § 8-17-350.
AND
IT IS SO ORDERED.
_____________________________________
Marvin
F. Kittrell Chief
Judge
March 4, 2009
Columbia, South Carolina
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