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Crocker v. South Carolina Department of Health and Environmental Control

Court of Appeals of South Carolina

July 24, 2019

Marion E. Crocker, Jr., Appellant,
v.
South Carolina Department of Health and Environmental Control, Respondent. Appellate Case No. 2017-000052

          Heard April 17, 2019

          Appeal From Richland County Robert E. Hood, Circuit Court Judge.

          Gerald F. Smith, of Smith Law Office, and Adam Tremaine Silvernail, of Law Office of Adam T. Silvernail, both of Columbia, for Appellant.

          Eugene Hamilton Matthews, of Richardson Plowden & Robinson, PA, of Columbia, for Respondent.

          KONDUROS, J.

         Marion E. Crocker, Jr. appeals a circuit court order granting summary judgment to the South Carolina Department of Health and Environmental Control (the Department) on Crocker's discrimination claim brought under the South Carolina Human Affairs Law (SCHAL).[1] On appeal, Crocker argues the circuit court erred in finding (1) the statute of limitations in section 1-13-90(d)(6)[2]applied to his claim, (2) section 1-13-90(c)[3] did not create a private right of action, and (3) Crocker was not entitled to equitable tolling of the statute of limitations. We affirm.

         FACTS

         The Department employed Crocker from January 1980 until September 2013. Crocker held three different positions during this time: manager of operational systems, director of Information Technology (IT) operations, and IT project manager. Around September 2012, the Department sought applicants for an Agency Chief Information Officer. Crocker and four other internal employees submitted applications for the position. A three-member panel conducted interviews and recommended the top three applicants to the Department's Director of Administration. Although Crocker's background at the Department exceeded all of the specific job requirements and qualifications for the position, the panel did not select Crocker as one of the top three applicants. However, the panel selected Dakin McPhail, an internal employee who formerly worked under Crocker's supervision, as one of the top three applicants. The Director of Administration ultimately selected McPhail for the position in January 2013. Although McPhail did not meet the minimum qualifications for the position, the Director of Administration stated she chose McPhail because he performed the best in his interview. At the time of the selection, McPhail was forty-five years old while Crocker was fifty-five years old.

         Crocker filed a formal grievance with the Department about the selection process, but in March 2013 the Department denied the grievance, finding the nature of the grievance did not fall within the provisions of the State Employee Grievance Procedure Act.[4] On August 7, 2013, Crocker filed a Charge of Discrimination (Charge) based on age with the SCHAC alleging violations of the Age Discrimination in Employment Act (ADEA)[5] and the SCHAL and noting McPhail did not meet the minimum requirements for the position. Two days later, the SCHAC waived deferral of Crocker's Charge and transferred the complaint to the United States Equal Employment Opportunity Commission (EEOC) for processing, ending the SCHAC's involvement in the case.[6] On July 1, 2015, the EEOC issued a determination finding "there is reasonable cause to believe" the Department denied Crocker the promotion based on his age. The EEOC attempted to conciliate the Charge as required by the ADEA and ultimately sent Crocker a "Notice of Conciliation Failure" on February 11, 2016. The EEOC also mailed Crocker a "Notice of Right to Sue" on February 11, 2016, stating, "You may file a lawsuit against [the Department] under federal law based on this [C]harge in federal or state court. Your lawsuit must be filed WITHIN [ninety] days of your receipt of this notice; or your right to sue based on this [C]harge will be lost."

         Crocker filed this lawsuit based on this Charge in state circuit court on March 28, 2016, alleging violations of the SCHAL. The Department answered and filed a motion for summary judgment, contending the applicable state law statute of limitations barred Crocker's claims. At a hearing in October 2016, the Department argued (1) the statute of limitations in section 1-13-90(d)(6) barred Crocker's claims, (2) no private cause of action existed for Crocker under section 1-13-90(c), and (3) Crocker was not entitled to equitable tolling. Crocker responded that the statute of limitations did not apply to his claim because the EEOC handled his claim, not the SCHAC. Crocker also contended a plaintiff could only sue a state agency through the SCHAL under section 1-13-90(c).

         On November 21, 2016, the circuit court filed an order granting summary judgment to the Department. In its order, the circuit court found Crocker could not bring a private cause of action under section 1-13-90(c). The circuit court also determined the applicable statute of limitations in section 1-13-90(d)(6) barred Crocker's claims. The circuit court noted Crocker only brought claims under the SCHAL, not federal law. Finally, the circuit court found Crocker failed to make any showing he was entitled to equitable tolling of the statute of limitations. Crocker filed a motion to alter or amend, which the circuit court denied. This appeal followed.

         LAW/ANALYSIS

         I. Private Right of Action under Section 1-13-90(c)[7]

         Crocker argues the circuit court erred in finding a private cause of action did not exist under section 1-13-90(c) of the South Carolina Code (2005 & Supp. 2018) because the legislature intended for the statute to contain an implied cause of action. Specifically, Crocker asserts the language in section 1-13-90(c)(1)[8 ...


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