Holbert v. SC State Board

THIS OPINION HAS NO
PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Kenneth Lee
Holbert, Jr., Appellant,

v.

South Carolina
State Board for Technical and Comprehensive Education, Respondent.

Appeal From the Administrative Law Court

Marvin F. Kittrell, Chief Administrative
Law Judge

Unpublished Opinion No.  2012-UP-133 

Heard February 16, 2012 – Filed February
29, 2012

AFFIRMED

J. Falkner Wilkes, of Greenville, for
Appellant.

Deidre D. Laws, of Columbia, for
Respondent.

PER CURIAM: Greenville Technical College (the College) terminated Kenneth Lee Holbert, Jr.'s employment for
his failure to return to work following an extended medical leave.  The State
Employee Grievance Committee (Committee) upheld the termination, and the
Administrative Law Court (ALC) affirmed.  Holbert appeals, arguing the evidence
in the record does not support his termination.  We affirm pursuant to Rule
220(b), SCACR, and the following authorities: 

1. As to whether the ALC erred in declining to find
wrongful termination because (1) Holbert timely provided a medical release from
Dr. Nelson and (2) Holbert timely returned to work[1]:  Risher v. S.C. Dep't of Health
& Envtl. Control, 393 S.C. 198, 204, 712 S.E.2d 428, 431 (2011)
("A decision of the ALC should be upheld . . . if it is supported by
substantial evidence in the record."); Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981) (holding
substantial evidence 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" and is not "a mere scintilla of evidence nor the
evidence viewed blindly from one side of the case" (internal citation omitted)); Corbin
v. Kohler Co., 351 S.C. 613, 618, 571
S.E.2d 92, 95 (Ct. App. 2002) ("[T]he possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency's findings from being supported by substantial evidence." (internal
citation omitted)). 

2. As to Holbert's
remaining issues:  Brown
v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 519, 560 S.E.2d 410, 417 (2002) (stating issues
not raised to and ruled upon by the ALC are unpreserved for appellate review); Home
Med. Sys., Inc. v. S.C. Dep't of Revenue, 382 S.C. 556, 562, 677 S.E.2d 582,
586 (2009) (holding when the ALC does not rule on an issue properly raised to
it, the issue is unpreserved for appellate review unless raised in a motion
pursuant to Rule 29(D), SCALCR, and Rule 59(e), SCRCP); Risher, 393 S.C.
at 208 n.5, 712 S.E.2d at 433 n.5 (holding issue preservation rules apply to
cases decided prior to Home Medical). 

AFFIRMED. 

PIEPER and
GEATHERS, JJ., and CURETON, A.J., concur. 

[1] Some confusion appears to exist regarding the leave
benefits available under the Family Medical Leave Act (FMLA) and those
available under the Americans with Disabilities Act (ADA).  Federal law
provides for up to twelve weeks of leave under the FMLA.  29 U.S.C.A. §§
2601–2654 (2009 & Supp. 2011).  In
addition, South Carolina law permits employees to qualify for up to one hundred
eighty calendar days of leave, with the possibility of limited extensions,
pursuant to the ADA.  S.C. Code Ann. Regs. 19-700, 19-712.01(I) (2011).  The
two types of leave benefits may overlap: "Leave taken under [regulation
19-712.01] may qualify as [FMLA] leave
and, if so, will run concurrently."  Reg. 19-712.01.