SC Technical College System v. Carla Jackson

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

South Carolina Technical College System, Appellant,

v.

Carla Jackson and South Carolina Department of
Administration, Respondents,

Of Whom Carla Jackson is the Respondent.

Appellate Case No. 2020-001689

Appeal From The Administrative Law Court
Ralph King Anderson, III, Administrative Law Judge

Unpublished Opinion No. 2024-UP-189
Submitted November 1, 2023 – Filed May 29, 2024
Withdrawn, Substituted, and Refiled August 14, 2024

AFFIRMED

Andrew F. Lindemann, of Lindemann Law Firm, P.A.,
and Warren V. Ganjehsani, of South Carolina Technical
College System, both of Columbia, for Appellant.

Shannon Marie Polvi, of Cromer Babb & Porter, LLC, of
Columbia, for Respondent.
PER CURIAM: South Carolina Technical College System (SCTCS) appeals the
administrative law court's (the ALC) order, which upheld the State Employee
Grievance Committee's (the Committee) determination that Carla Jackson was a
full time equivalent (FTE) employee, covered under the State Employee Grievance
Procedure Act (the Act), and was terminated without cause. We affirm.

FACTS/PROCEDURAL HISTORY

Jackson was employed by Denmark Technical College (DTC) as an administrative
coordinator. On October 1, 2013, Jackson applied for tuition reimbursement from
DTC for an MBA program she was enrolled in at American International
University (AIU). Jackson sought reimbursement for two courses she completed at
a different institution and for which she received transfer credit from AIU.
Jackson received money from DTC for these two courses; however, following an
SCTCS investigation, DTC terminated her employment on May 11, 2017, for the
improper receipt of tuition payments and using her position for personal gain.

Prior to her termination, Jackson worked as an administrative coordinator until she
was appointed Interim Dean of Transition Studies and Distance Education on
October 1, 2015. In October 2016, she became Interim Dean of Business,
Computers, and Related Technologies. Following her termination in May 2017,
Jackson filed a grievance by submitting a State Appeal Form, which was sent to
the Committee. After a hearing, the Committee determined SCTCS and DTC's
decision to terminate Jackson's employment prejudiced her rights. The Committee
issued a final decision on March 22, 2018.

SCTCS filed a motion for reconsideration, which the Committee denied on August
1, 2018. It then appealed the Committee's decision to the ALC (the 2018 appeal).
SCTCS argued the Committee lacked subject matter jurisdiction to make its
original decision because Jackson was not a covered employee under the Act and
had no right to a hearing. The ALC did not rule on the merits of SCTCS's appeal
and instead issued an order of remand to the Committee to determine which
position—administrative coordinator (covered employee entitled to a grievance
under the Act) or interim dean (uncovered employee)—Jackson held at the time of
her termination. On February 3, 2020, the Committee determined Jackson was an
administrative coordinator and therefore covered under the Act. On March 5,
2020, SCTCS appealed the Committee's findings on remand (the 2020 appeal).
The ALC upheld the Committee's decision and granted relief to Jackson (the
ALC's first order). SCTCS filed another motion for reconsideration, which was
denied, and the ALC issued an amended final order. This appeal followed.
ISSUES ON APPEAL

I. Did the ALC err in finding Jackson was a covered employee under the Act
and that the Committee and the ALC had subject matter jurisdiction over her
grievance?

II. Did the ALC err in refusing to hear the merits of SCTCS's appeal that DTC
had valid reasons to terminate Jackson and there was substantial evidence in
the record to support her termination?

STANDARD OF REVIEW

This court will reverse the ALC's decision if the decision is:

(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(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 an abuse of
discretion or clearly unwarranted exercise of discretion.

Deerfield Plantation Phase II B Prop. Owners Ass'n v. S.C. Dep't of Health &
Env't Control, 414 S.C. 170, 175, 777 S.E.2d 817, 819 (2015) (quoting S.C. Code
Ann. § 1–23–610(B) (Supp. 2023)). Therefore, "this Court's review is limited to
determining whether the ALC's findings were supported by substantial evidence, or
were controlled by an error of law." Id. "As to questions of fact, the Court may
not substitute its judgment for the ALC's judgment when weighing the evidence."
Id. "In determining whether the ALC's decision was supported by substantial
evidence, the Court need only find, looking at the entire record on appeal, evidence
from which reasonable minds could reach the same conclusion as the ALC."
Kiawah Dev. Partners, II v. S.C. Dep't of Health & Env't Control, 411 S.C. 16, 28,
766 S.E.2d 707, 715 (2014).

LAW/ANALYSIS

I. Jackson's Employment Status
SCTCS argues the Committee and the ALC lacked subject matter jurisdiction
because Jackson was not an employee covered by the Act and, therefore, had no
right to a grievance hearing.

A. Remand to the Committee

First, SCTCS contends the ALC erred in remanding to the Committee to make
factual findings on a jurisdictional issue. SCTCS avers the determination of
Jackson's employment status is a question of subject matter jurisdiction that the
ALC could determine pursuant to Chew v. Newsome Chevrolet, 315 S.C. 102, 431
S.E.2d 631 (Ct. App. 1993). We disagree.

We hold the ALC did not err in remanding to the Committee because the ALC is
permitted to remand to the Committee to make factual findings. Furthermore, we
find the question of which role Jackson held at the time of her termination is one
based in fact. See S.C. Code Ann. § 1-23-380(5) (Supp. 2023) ("The court may
affirm the decision of the agency or remand the case for further proceedings.").
Additionally, we find Chew is inapplicable to this case because unlike Chew, the
ALC did not conclude a jury should decide factual issues relevant to jurisdiction.
Instead, the ALC remanded to the Committee, who is not a jury and acts in a
manner similar to that of a judicial body capable of making such determinations.
See S.C. Code Ann. Regs. 19–775.24 (2011) ("The final decision of the State
Employee Grievance Committee as it relates to an appeal shall include the (1)
findings of fact, (2) statements of policy and conclusions of law, and (3) the
Committee's decision."); Chew, 315 S.C. at 103, 431 S.E.2d at 631 (stating an
employer "moved for summary judgment on the ground that the [circuit] court
lacked subject matter jurisdiction because Chew was its statutory employee under
the South Carolina Workers' Compensation Act"); id. ("The circuit court denied
the motion for summary judgment, ruling that material issues of fact remained for
the jury."); id. at 104, 431 S.E.2d at 632 (holding the circuit court "erred in this
case when [it] concluded that the court should not decide the facts relevant to the
jurisdictional issue, but should reserve them for trial by jury").

Further, SCTCS argues the ALC erred by applying the substantial evidence
standard after remand. We find SCTCS's argument is not preserved for appellate
review. SCTCS makes this argument for the first time on appeal to this court. See
State v. Oxner, 391 S.C. 132, 134, 705 S.E.2d 51, 52 (2011) ("Even though subject
matter jurisdiction may be raised at anytime, there is no error preservation
exception allowing a party to bypass calling an erroneous ruling to the attention of
the tribunal making it before appealing that ruling to a higher court.").
B. Jackson as Interim Dean

SCTCS contends Jackson held the position of interim dean at the time of her
termination, which is not an FTE position covered by the Act.1 We disagree.

We hold there is substantial evidence in the record that Jackson was an
administrative coordinator and a covered employee under the Act at the time of her
termination. See Kiawah, 411 S.C. at 28, 766 S.E.2d at 715 ("In determining
whether the ALC's decision was supported by substantial evidence, the Court need
only find, looking at the entire record on appeal, evidence from which reasonable
minds could reach the same conclusion as the ALC."). DTC's investigative report
and Jackson's termination letter and dual employment form listed her role as
"Administrative Coordinator". Additionally, each letter that appointed Jackson to a
new temporary position expressly stated that she would retain her role as
administrative coordinator, explained the new role's duties were in addition to
those of her current position (as administrative coordinator), and emphasized any
changes to her position would be temporary. Moreover, Jackson's payroll action
forms indicate the human resource actions were "dual" and each salary adjustment
she received was described as a supplement or temporary.

In response to these facts, SCTCS argues Jackson did not "function" as an
administrative coordinator. Specifically, SCTCS points to Jackson's testimony that
someone had filled her administrative coordinator position when she became
interim dean. We find this argument fails under the facts previously outlined
because a reasonable mind could reach the same conclusion as the ALC with
regard to Jackson's role at DTC. See Kiawah, 411 S.C. at 28, 766 S.E.2d at 715
("In determining whether the ALC's decision was supported by substantial
evidence, the Court need only find, looking at the entire record on appeal, evidence
from which reasonable minds could reach the same conclusion as the ALC.").
Furthermore, Jackson's employment status is a factual question that was answered
by the Committee and the ALC. This court defers to the ALC's findings on such
issues. See Deerfield, 414 S.C. at 175, 777 S.E.2d at 819 ("As to questions of fact,
[this c]ourt may not substitute its judgment for the ALC's judgment when weighing

1
SCTCS also contends Jackson is bound by the representation on her appeal form
which stated she was an interim dean. This argument is without merit. Jackson's
representation that she was interim dean is correct; however, as evidenced by the
record, it was a temporary position, and she retained her role as administrative
coordinator at the time she became interim dean.
the evidence."). Thus, we find substantial evidence exists that demonstrates
Jackson was an administrative coordinator and an FTE employee with grievance
rights under the Act.

II. Refusal to Hear Merits

SCTCS argues the ALC erred by refusing to hear the merits of its appeal. SCTCS
avers it had a valid reason to terminate Jackson and substantial evidence in the
record supported its decision. It contends it did not waive its arguments because
the notice of appeal incorporated the prior 2018 appeal and the ALC disregarded
precedent in Bobo v. Marshane Corporation.2 We disagree.

Generally, a court does not retain jurisdiction of an appeal after remand unless it
specifically retains jurisdiction. See Hamm v. S.C. Pub. Serv. Comm'n, 307 S.C.
188, 192 n.1, 414 S.E.2d 149, 151 n.1 (1992) ("The circuit court's assertion of
jurisdiction was improper since the case had been remanded to [the Public Service
Commission] and the order remanding it did not retain jurisdiction of any part of
the case."); Broad River Elec. Co-op., Inc. v. Bd. of Pub. Works of City of Gaffney,
319 S.C. 230, 232, 460 S.E.2d 386, 387 (1995) ("[W]hen a matter is remanded . . .
without an express retention of jurisdiction, the [c]ircuit [c]ourt loses jurisdiction
and, therefore, no longer has authority over the proceedings."); Leviner v. Sonoco
Prod. Co., 339 S.C. 492, 494, 530 S.E.2d 127, 128 (2000) ("Under Rule 59(e),
SCRCP, the trial judge has only ten days from entry of judgment to alter or amend
an earlier order on his own initiative absent a 'reservation' of jurisdiction in the
form order."). Here, the ALC's order of remand did not specifically state that it
retained jurisdiction of SCTCS's 2018 appeal. Therefore, we find the ALC did not
err in refusing to address the merits of SCTCS's appeal.

Additionally, we find Bobo is inapplicable here. In Bobo, the claimant appealed
the Workers' Compensation Commission's denial of benefits to the circuit court;
however, the circuit court found the Commission failed to make certain findings of
fact and conclusions of law. Bobo, 302 S.C. at 87, 394 S.E.2d at 3. The circuit
court remanded to the Commission with specific, limiting instructions to make the
required findings. Id. Instead, the Commission conducted another full hearing and
granted claimant benefits. Id. This court found the Commission should not have
conducted another full hearing and that the specific instructions in the order to
remand limited the authority of the Commission and retained jurisdiction of the
appeal in the circuit court. Id. at 88, 394 S.E.2d at 4. Here, no specific limiting

2
302 S.C. 86, 394 S.E.2d 2 (Ct. App. 1990).
instructions were included in the ALC's order of remand that could imply the ALC
sought to retain jurisdiction.

SCTCS also makes several arguments regarding the merits of its appeal. Because
the underlying merits of SCTCS's appeal are unpreserved and the ALC refused to
address these arguments, we find SCTCS's arguments are not properly before this
court for review. See Brown v. S.C. Dep't of Health & Env't Control, 348 S.C.
507, 519, 560 S.E.2d 410, 417 (2002) ("[I]ssues not raised to and ruled on by the
AL[C] are not preserved for appellate consideration.").

CONCLUSION

Accordingly, the ALC's order is

AFFIRMED.

WILLIAMS, C.J., HEWITT, J., and VERDIN, A.J., concur.