Gastineau v. Murphy

TOAL, Justice:

I respectfully dissent.

In ruling on motions for a directed verdict or judgment non obstante veredicto, the trial court must view the evidence and all reasonable inferences in the light most favorable to the non-moving party, and if it is susceptible of more than one reasonable inference, the case should be submitted to the jury. Unlimited Services, Inc. v. Macklen Enterprises, Inc., 303 S.C. 384, 401 S.E.2d 153 (1991). The majority opinion does not utilize this standard. Instead, it takes a view of the evidence in the light most favorable to the Mental Retardation Board. I find that although there was not direct evidence offered, there was ample circumstantial evidence presented below to warrant submission to the jury the issue of whether Gastineau was terminated because of his complaint.

Gastineau reported possible safety and wage violations concerning handicapped clients who worked with the Beaufort County Rehabilitation Center. He was discharged shortly after his whistleblowing. These violations related to handicapped individuals who had been hired by the husband of Leigh Murphy — the Executive Director of the Mental Retardation Board. Gastineau informed Alice Shook of the South Carolina Department of Mental Retardation about the possible violations. Shook, in turn, informed her supervisors. These supervisors decided to send Gary Hudson to conduct an inspection of the Rehabilitation Center. Hudson conducted the inspection; unfortunately, he died prior to trial. No *574written report of his visit was found. Furthermore, Gastineau’s wife, who worked with the Rehabilitation Center, had expressed concerns to her supervisors about the potential violations. These supervisors, according to Mrs. Gastineau, had stated that they would discuss the matter with Leigh Murphy.

The circumstances of this case, considered in the aggregate and -viewed in the light most favorable to Gastineau, create a factual issue as to what Mrs. Murphy knew and whether she fired Gastineau because of his whistleblowing. The majority is, in effect, acting as a thirteenth juror in reaching its conclusion, rather than determining if there was sufficient evidence for the matter to be submitted for the jury.

Moreover, evidence does not support the position that Gastineau was terminated for good cause. He had been made a permanent employee after a six-month probationary period. Shortly after becoming a permanent employee, he was fired. Although his evaluations were below expectations in some areas, they exceeded expectations in others. Yet, he was suddenly terminated after he disclosed the potentially damaging information about the handicapped clients. The Mental Retardation Board cannot grant Gastineau a permanent position, based on his employment record, and at the same time claim to fire him for “good cause” on the basis of the identical record.1

I would affirm the Court of Appeals’ affirmance of the trial court’s ruling. This was clearly a case for the jury to decide. *575I would uphold its verdict of $875,000 in favor of Gastineau. No challenge is made to the amount awarded.

BURNETT, J., concurs.

. In footnote 5 of its opinion, the majority asserts that Beaufort County personnel policies dictated that employees were "automatically” given permanent status after a six-month evaluation. There is no record citation to support this statement. This statement overlooks the fact that by definition a "probationary period” implies not automatic employment, but rather employment conditioned upon demonstration of fitness for a job. If Gastineau’s record was as bad as was claimed, then surely he would not have been able to meet the requirements of his probationary period. He was evaluated shortly before the end of his six-month probationary period; he became a permanent employee at the six-month point; and he was terminated thereafter. The fact that the majority and dissent see these facts differently illustrates dramatically why this matter is a question of fact to be resolved by a jury.