                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-1943


CALVIN BARTON; SHAMIKA CURETON; LATOYA JAMISON; LISA
JAMISON; TERRANCE JOHNSON; KELLY PARDUE; PAULINE WARREN;
ANNA EDENS; ANTONIO MILLER; STACEY JOHNSON; SHERRY PERALTA;
NATASHA ATKINSON; PAMELA VAUGHN; QUASHONDA CHAPMAN; SHIRLEY
BAISEY; BILLY HARRIS; CONSTANCE NEAL,

                Plaintiffs - Appellees,

          and

JORGE CASTELLANOS; DENISE BLACKWELL; BRIAN BROWNLEE; JOSEPH
HOPKINS; TERESA HARRIS,

                Plaintiffs,

          v.

HOUSE OF RAEFORD FARMS, INCORPORATED, d/b/a Columbia Farms,
Incorporated,

                Defendant - Appellant.



                              No. 12-1945


SHIREN JOHNSON; SAMANTHA EARL,

                Plaintiffs - Appellees,

          and

TAWANA BLANDIN; TERESA CALIXTO; ELODIA CARRERA; ERNADID
GARRIBO CASTILLO; LORENA CASTILLO CORRALE; NATALIE DORANTES;
RUFFINA FELIPE; MARIA DOMINGO GOMEZ; SILVIA HERNANDEZ;
LUCIANO HERNANDEZ   LEMOS;     MATEO    FRANCISCO    LORENZO;   ANGEL
RODRIGUEZ,

                Plaintiffs,

           v.

HOUSE OF RAEFORD FARMS, INCORPORATED, d/b/a Columbia Farms,
Incorporated,

                Defendant - Appellant.



                               No. 12-1946


JACKIE BLAND; TAMORTHA BRUSTER; MYRTLE              BRYSON;   ANTONIO
BURTS, a/k/a Antonio Burch; STEVEN CASE,

                Plaintiffs - Appellees,

           v.

HOUSE OF RAEFORD FARMS, INCORPORATED, d/b/a Columbia Farms,
Incorporated,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Greenville. J. Michelle Childs, District
Judge.    (6:09-cv-01901-JMC; 6:09-cv-03137-JMC; 6:10-cv-00928-
JMC)


Argued:   September 18, 2013                 Decided:    March 11, 2014


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Affirmed in part; reversed in part by published opinion. Judge
Niemeyer wrote the opinion, in which Judge Agee joined.     Judge
King wrote an opinion concurring in part and dissenting in part.


                                    2
ARGUED: James Larry Stine, WIMBERLY, LAWSON, STECKEL, SCHNEIDER
& STINE, PC, Atlanta, Georgia, for Appellant.         Nancy B.
Bloodgood, FOSTER LAW FIRM, LLC, Daniel Island, South Carolina,
for Appellees.    ON BRIEF:    Elizabeth K. Dorminey, WIMBERLY,
LAWSON, STECKEL, SCHNEIDER & STINE, P.C., Atlanta, Georgia, for
Appellant.   Lucy C. Sanders, FOSTER LAW FIRM, LLC, Charleston,
South Carolina, for Appellees.




                               3
NIEMEYER, Circuit Judge:

      Numerous      former       employees          and    some    current     employees      of

House   of    Raeford          Farms,    Inc.,        d/b/a       Columbia     Farms,    Inc.,

(“Columbia     Farms”),         a   chicken      processor         in   Greenville,      South

Carolina,     commenced          three    separate          actions     against       Columbia

Farms, asserting two types of claims:                       first, for the payment of

unpaid wages, withheld in violation of the Fair Labor Standards

Act (“FLSA”), 29 U.S.C. § 201 et seq., and the South Carolina

Payment of Wages Act (“S.C. Wages Act”), S.C. Code Ann. §§ 41-

10-10   to   -110,       and    second,        for    retaliating       against    them      for

instituting workers’ compensation proceedings, in violation of

S.C. Code Ann. § 41-1-80.                 The district court granted Columbia

Farms’ motion for summary judgment on the unpaid wages claims

under the FLSA but denied it on the unpaid wages claims under

the   S.C.   Wages       Act     and     the    retaliation         claims.       After      the

actions were consolidated, a jury returned a verdict in favor of

16 employees on the S.C. Wages Act claims, awarding them $16,583

in the aggregate, which the district court trebled to $49,749.

The court also awarded attorneys’ fees and costs on these claims

in the amount of $227,640.                      Following a bench trial on the

retaliation claims, the court found in favor of 8 employees,

ordering     that    5    be    reinstated           and   awarding     back    pay     in   the

aggregate amount of $131,742.



                                                4
       On Columbia Farms’ appeal, we reverse the jury award on the

S.C.    Wages       Act       claims,       concluding      that     those    claims     were

preempted      by     §       301    of     the    Labor    Management       Relations    Act

(“LMRA”), 29 U.S.C. § 185, and should have been dismissed.                                    As

to the retaliation claims under S.C. Code Ann. § 41-1-80, we

reverse   as     to       6     employees         because    they    failed     to   present

evidence satisfying the governing legal standards for recovery

under state law.              As to the retaliation claims of the remaining

two employees -- Billy Harris and Lisa Jamison -- we affirm.


                                                   I

S.C. Wages Act claims

       The wages paid to the production and maintenance employees

at   Columbia       Farms’          plant    in    Greenville       were   governed      by    a

collective bargaining agreement (“CBA”) with the United Food and

Commercial Workers’ Union, Local No. 1996, CLC (“the Union”).

Among other terms, the CBA provided that the basic work day was

8 hours and the basic work week was 40 hours, and it spelled out

the hourly rates of pay for the different classes of employees.

With respect to those rates, the CBA noted that in November

2004, Columbia Farms and the Union had negotiated a change to

the company’s “meal and rest policy” in exchange for a one-time

3.1% raise to the affected employees’ hourly rate.                               Under the

revised policy, instead of receiving “an unpaid lunch period and


                                                   5
paid breaks,” employees were to receive one “unpaid meal period

and [one] unpaid rest period per day, totaling approximately

sixty (60) minutes, [with] the allocation between the meal and

rest periods to be allocated by the Company.”                         The CBA also

specified that Columbia Farms would maintain “[a] daily record .

. . with the use of adequate time clocks at each plant” and that

“[t]he Union [would] have the right to examine time sheets and

any other records pertaining to the computation of compensation

of any employee whose pay [was] in dispute.”                         Columbia Farms

further    agreed    “not    to    enter       into   any    other    Agreement   or

contract with its employees, individually or collectively, which

in any way conflict[ed] with the terms and provisions of this

Agreement.”       Finally,     the     agreement      established      a   grievance

procedure     with   respect      to   any      dispute     “aris[ing]     over   the

interpretation” of the CBA and provided for arbitration for any

grievance that could not be settled.

     The    CBA      did    not      expressly        specify    how       employees’

compensable time would be calculated, but Columbia Farms had a

long-standing practice of paying its production employees based

on “line time” -- that is, the time actually spent by employees

processing chickens on the production line.                  “Line time” did not

include time spent donning and doffing protective gear, walking

to and from the production area, or washing gear before and

after work.     Columbia Farms stopped the production line for two

                                           6
30-minute      periods       per    shift     to    provide      employees            with     meal

breaks, which, under the CBA, were not counted as compensable

time.

      When new employees were hired, they were given a form at

orientation entitled “Terms of Employment,” which indicated that

its     purpose      was     to     notify        employees          “of    the        terms      of

employment,” as required by South Carolina Code § 41-10-30.                                       The

form was filled out to specify each worker’s hourly rate of pay

and, in a blank next to “hours of work,” the general hours for

that worker’s scheduled shift -- for example, 9 a.m. to 6 p.m.

        Columbia    Farms     also     gave       its    new   employees          an    Employee

Handbook, which, in a section on “Time Card Administration,”

stated that “[t]he purpose of the time card is to insure an

accurate      record    of    all    hours     you      work    in     order      for       you    to

receive correct payment of wages”; that “[y]ou are required to

punch    in   and    out     on     your    own    time       card    according         to     your

schedule”; and that “[i]t is our policy that all work performed

by you will be while you are ‘on the clock.’”                                    The Handbook

further    specified        that    “[y]ou     must      be    dressed          for    work    when

punching      in   or   out”;       that    “[e]mployees         are       to    be    at     their

workstations        ready     and    dressed       for    work       at    their       scheduled

starting time and are to remain at their workstations until the

scheduled quitting time”; and that “[y]ou will be paid for all

time worked per your schedule.”                    The Handbook also stated that

                                              7
employees would receive two 30-minute lunch breaks during each

shift.

      According to a number of former employees who testified at

trial, Columbia Farms never informed them when they were hired

that their hours would be based on “line time,” as distinct from

“clock time.”        These employees stated that, instead, they were

told at orientation that they would be working a set nine-hour

shift and that they would be paid based on when they clocked in

and out for that shift.           Although some acknowledged that they

were also told that their two 30-minute lunch breaks would be

unpaid, they estimated that they ended up having only 10 to 20

minutes in the break room during each break because of the time

it took to walk to and from the break room, to don and doff

protective clothing, and to wash up.

      In     2009,    a   group   of    the    Greenville       plant’s    former

employees, as well as a few of its current employees, all of

whom were members of the bargaining unit covered by the CBA,

sued Columbia Farms for wages due, based on the FLSA and the

S.C. Wages Act, asserting that they should have been paid for

the   time   they    spent   donning    and   doffing    protective   gear   and

preparing     for    work.    They     also   asserted   that    because   their

actual break time was less than 20 minutes, Columbia Farms was

required, in accordance with federal regulations, to compensate

them for that time.           Their claims under the S.C. Wages Act

                                         8
included allegations that Columbia Farms failed to notify them

in writing as to the hours they would be working when they were

hired.

      The    district     court     granted      Columbia    Farms’         motion       for

summary     judgment     on   the    plaintiffs’      FLSA       claims,      based      on

Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209 (4th Cir.

2009), which held that donning and doffing protective gear at a

poultry processing plant constituted “changing clothes” within

the meaning of 29 U.S.C. § 203(o) and that employers and unions

could address whether such time would be compensated through

collective     bargaining.          The    district       court     in       this     case

concluded     that   because      Columbia    Farms,      like    the       employer      in

Sepulveda,     had   a    long-standing       practice      under       a    bona     fide

collective bargaining agreement of paying its employees based on

“line time,” the plaintiffs were not entitled to compensation

for the time spent donning and doffing protective gear.                                  The

court also granted Columbia Farms’ motion for summary judgment

on plaintiffs’ similar claims under the S.C. Wages Act “[t]o the

extent that those claims ar[o]se from Columbia Farms’s failure

to   pay    Plaintiffs    for     their   time    spent     donning         and   doffing

sanitary and protective gear.”                Atkinson v. House of Raeford

Farms,     Inc.,   No.   6:09-cv-01901-JMC,         2011     WL    1526605,         at    *5

(D.S.C. Apr. 20, 2011).



                                          9
       With respect to whether Columbia Farms had complied with

the S.C. Wages Act in providing required written notices, giving

adequate breaks, providing accurate pay statements, and paying

full    wages    due     when   employees           were    terminated,        the   district

court    denied        Columbia       Farms’        motion      for    summary       judgment,

concluding that “there appeared to be genuine issues of material

fact regarding whether Columbia Farms complied with [the Act].”

Atkinson, 2011 WL 1526605, at *5.                          Those claims, accordingly,

were presented to a jury.

       Before trial, Columbia Farms contended that the plaintiffs’

S.C. Wages Act claims were preempted by § 301 of the LMRA,

arguing that the plaintiffs’ efforts to collect allegedly unpaid

wages under the state statute necessarily implicated the CBA and

therefore       should    have     been    dismissed.                 The    district    court

rejected the argument, ruling that the plaintiffs could prevail

on their S.C. Wages Act claims by proving (1) that they were not

notified at the time of employment that they would be paid “line

time” and were instead led to believe that they would be paid

“clock time;” (2) that this understanding became part of the

agreed-upon terms and conditions of their employment; and (3)

that    Columbia       Farms    had    failed        to    honor      this    agreement   and

therefore       owed    them    unpaid    wages        for      the    difference     between

“clock time” and “line time.”                  The district court thus held that

the    S.C.     Wages    Act     claims    were           not   preempted      because    the

                                               10
plaintiffs’ theory of recovery did not depend on the meaning of

the CBA but on the alleged breach of separate agreements to pay

“clock time.”

       The    jury    returned      a   verdict   in    favor   of   16    plaintiffs,

awarding them unpaid wages ranging from $53 to $2,433, for a

total of $16,583.           And the district court trebled the damages,

as authorized by state law, to $49,749, finding that no bona

fide dispute existed regarding the wages the plaintiffs were

due.       The court explained:

       Columbia Farms had a practice of paying its employees
       according to line time; however, neither the CBA nor
       the   terms  of  employment  provided  to   Plaintiffs
       indicated that employees were to be paid according to
       line time.    At trial, Plaintiffs presented evidence
       that Columbia Farms led them to believe that they
       would be paid based on the amount of hours that they
       were clocked-in at work. . . .    Accordingly, to the
       extent the jury found that Columbia Farms did not pay
       all wages due to Plaintiffs, the court finds that no
       bona fide dispute existed as to the payment of those
       wages.

Atkinson v. House of Raeford Farms, Inc., No. 6:09-cv-01901-JMC,

2012 WL 2871747, at *3 (D.S.C. July 12, 2012).                       The court also

awarded prejudgment interest, pursuant to S.C. Code Ann. § 34-

31-20(A),       and    attorneys’       fees    and    costs    in   the   amount   of

$227,640.


Workers’ compensation retaliation claims

       A    group     of   former    employees    also    alleged     that   Columbia

Farms had violated their rights under S.C. Code Ann. § 41-1-80,

                                           11
which prohibits employers from retaliating against employees who

have instituted workers’ compensation proceedings.

     Following a bench trial, the district court found in favor

of eight employees, concluding that their employment had been

terminated       because      they    had     instituted        workers’    compensation

proceedings.          Atkinson v. House of Raeford Farms, Inc., 874 F.

Supp. 2d 456, 483 (D.S.C. 2012).

     The     court      found    that       Columbia         Farms   carried      out    its

retaliation       in    the   context       of     a   “point    system”     designed     to

enforce its attendance policy at its Greenville plant.                                  Under

the point system, employees who reached a total of five points

were fired -- points were accumulated by the failure to follow

the attendance policy and subtracted when an employee worked for

30 days without receiving any new points.                         Thus, employees who

arrived late to work, returned to work late after a break, or

left work early received half a point.                          Employees who missed

work Tuesday through Friday received one point, and employees

missing    work       Saturday   through         Monday      received   a   point   and    a

half.      If an employee provided Columbia Farms with two days’

notice     and    a    medical       excuse      for    an    absence,      the   employee

received no points.            If an employee provided the medical excuse

but not the required advanced notice, the employee received one

point for the entire medically excused absence, even if it was

longer than one day.             But, as the district court noted, “[a]n

                                              12
employee did not receive any points for workers’ compensation

injuries,       absences,       or       approved       doctor’s         visits            when    the

employee visited the company doctor.”                        Atkinson, 874 F. Supp. 2d

at 462.

       Teresa Taylor, Columbia Farms’ plant nurse, was authorized

to make the decision whether to send employees to the company

doctor for medical treatment, and she did not do so when she

thought their injuries required only first aid or were not work

related.        In    this    vein,      Taylor       concluded      that         an       employee’s

overuse of her hands on the production line amounted to “sore

hands,” which were to be treated as a matter of first aid.

Accordingly,         for     such    complaints,           she     did     not         complete      a

workers’       compensation         form.        While        employees       with          workers’

compensation         injuries       or   restrictions          received       accommodation,

such as light duty, employees “with injuries or restrictions

that    were      not      considered       to        be     related         to        a     workers’

compensation injury were not permitted to return to work until

the    employee       provided       Columbia         Farms      with    a    doctor’s            note

stating     that       the     employee         had     no       medical      restrictions.”

Atkinson, 874 F. Supp. 2d at 463.

       Trial    testimony       indicated        that      supervisors            at       the    plant

kept   a   list      of    employees      who    frequently         visited        the       nurse’s

office or who went to a private doctor for medical care.                                           For

example, one shift manager testified that he had received lists

                                                13
from the nurse’s office with the names of employees who had

worked less than 60 days and had been to the nurse’s office

multiple times.

       Six    of    the     plaintiffs      --        Natasha    Atkinson,       Anna    Edens,

Shiren    Johnson,         Shirley    Baisey,          Tamortha    Bruster,       and    Steven

Case -- testified at trial that they had visited the nurse’s

station      complaining       of    sore    or       injured     hands    and    were   given

first    aid    treatment,          such    as    gauze,        topical    pain    reliever,

ibuprofen, and hand massages.                     Five of the six had requested

permission to visit the company doctor, but Taylor denied their

requests.          Instead, they visited private doctors or emergency

rooms, receiving notes stating that they were unable to work for

a specified period of time or that placed other restrictions on

their ability to work.               Taylor told several of these employees

that they would not be allowed to return to work until they

could    provide       a    doctor’s       note       saying     that     they   could    work

without restrictions.               When three of the employees -- Atkinson,

Edens, and Johnson -- were unable to obtain such notes, their

employment was terminated.                  The others -- Baisey, Bruster, and

Case -- were given attendance points based on absences for which

they had a doctor’s note, and when those points were combined

with    other      points     that     they       had     accumulated,       their       totals

reached five points or more, leading to their discharge.                                   The

district       court       found    that     if       Taylor     had    considered       their

                                                 14
injuries to be work related and accordingly had allowed them to

visit    the   company   doctor,     these   employees    would     not    have

accumulated the final points that caused their discharge.

     The two other prevailing plaintiffs -- Billy Harris and

Lisa Jamison -- sustained workplace injuries that Columbia Farms

acknowledged as such.     Harris fell down the stairs while at work

and injured his back, and Jamison slipped and fell at work,

injuring her back, hip, neck, and shoulder.              Both were seen by

the company doctor.

     The doctor placed Harris on light duty for several weeks,

and Columbia Farms made an accommodation for this restriction,

giving    Harris   different   job     responsibilities.          The     doctor

eventually released Harris to full duty, but told him to visit

the nurse’s station if his back began to hurt.            While working on

the production line, Harris began experiencing pain and so told

his supervisor.     The district court credited Harris’s testimony

that he eventually received his supervisor’s permission to leave

the line to visit the nurse’s station.             When he reached the

nurse’s station, however, the plant’s human resources manager

was waiting for him and told him that he was being fired for

leaving the line without permission.         After he was fired, Harris

continued receiving treatment from the company doctor, and an

MRI showed that he had a bulging disc.          Harris acknowledged that

from the time of his discharge in July 2009 until at least

                                      15
February 2010, he could not have performed his normal job at

Columbia Farms due to medical restrictions given to him by the

company doctor.

       Similarly, Columbia Farms’ doctor placed Jamison on light

duty after her fall at work in May 2009.                  She testified that “a

supervisor at Columbia Farms told her that Taylor was going to

get her fired because of her injury.”               Atkinson, 874 F. Supp. 2d

at 471.      Jamison submitted notes from the company doctor setting

forth her work restrictions and advising that she take frequent

breaks from the use of her shoulder, which she understood to

mean that she should walk around to loosen up her shoulder or go

to the nurse’s station when she began having pain.                      In Jamison’s

presence,     Taylor    called      the   company       doctor    to    verify    that

Jamison could take breaks as needed.

       A few weeks after Jamison filed a workers’ compensation

claim, the human resources manager found Jamison outside her

assigned work area on three occasions and fired her, stating

that   she    had   taken     excessive        breaks.      The    district      court

credited Jamison’s testimony that each time the human resources

manager    saw   her,   she   was    on   her     way    back    from   the   nurse’s

station.      After her discharge, Jamison began collecting social

security payments       for    a   disability      unrelated      to    her   work   at

Columbia Farms.         At trial in November 2011, however, Jamison



                                          16
testified that she had been physically able to go back to her

old job at Columbia Farms for approximately nine months.

      Based on the factual circumstances presented, the district

court concluded that Columbia Farms violated S.C. Code Ann. §

41-1-80     (prohibiting          employers          from    discharging            or    demoting

employees       who    have   in    good    faith       “instituted”            a    “proceeding

under     the     South     Carolina       Workers’         Compensation            Law”).           To

determine       whether     the    plaintiffs         had    “instituted”            a    workers’

compensation proceeding, the court applied the following test:

      [W]hile the mere seeking and receiving of medical
      treatment   is  not   sufficient  to   constitute  the
      institution of a workers’ compensation claim, an
      employee’s seeking or receiving of medical treatment
      from the employer accompanied by circumstances which
      would lead the employer to infer that a workers’
      compensation claim is likely to be filed is sufficient
      to institute a workers’ compensation proceeding for
      the purposes of Section 41-1-80.

Atkinson,       874    F.   Supp.    2d    at    475.        As     to    Atkinson,            Edens,

Johnson, Baisey, Bruster, and Case, the court found that their

“receipt     of       treatment     for     their       injuries         from       the       nurse’s

office, combined with their requests to visit the company doctor

or   Taylor’s      representation          to    them       that    they      had        to    see    a

private     doctor,         and    their     submission            of    documentation               to

Columbia Farms showing that they had sought medical care for

their injuries [was] sufficient to constitute the institution of

workers’        compensation        proceedings.”             Id.        at   477         (emphasis

added); see also id. at 478-80.

                                                17
      As to the plaintiffs’ burden to prove a causal connection

between their institution of a workers’ compensation proceeding

and the termination of their employment, the court concluded

that eight plaintiffs had also satisfied this element of their

case, explaining:

      Section 41-1-80 does not provide an employee with the
      right to a reasonable period of time to rehabilitate
      from an injury and demonstrate the ability to perform
      his job duties. However, where an employer sets forth
      the employee’s inability to perform his job duties as
      the employer’s reason for terminating the employee,
      evidence   that   the   employer  had  a   policy   of
      accommodating employees with workers’ compensation
      injuries, coupled with the employers’ failure to
      accommodate the plaintiff may support that plaintiff’s
      assertion that the employer’s proffered reason for
      termination was mere pretext.

Atkinson, 874 F. Supp. 2d at 476.                 The court relied on this

principle in finding that these plaintiffs had established the

requisite      causal    connection     between   the    termination      of    their

employment       and    their     institution     of    workers’    compensation

proceedings,          rejecting    as     mere    pretext      Columbia        Farms’

explanation based on application of its attendance policy.

      The district court ordered reinstatement as to each of the

five prevailing plaintiffs who had sought it -- Atkinson, Edens,

Johnson, Baisey, and Jamison.             It found that Johnson and Jamison

had   failed     to    mitigate   their   damages      and   therefore    were    not

entitled    to    back    wages,    but   with    respect     to   the   remaining




                                          18
prevailing plaintiffs, the court awarded damages ranging from

$1,076 to $55,331, for a total of $131,742.


                                             II

     Columbia Farms contends first that the plaintiffs’ claims

under the S.C. Wages Act were preempted by § 301 of the LMRA and

should have been dismissed.                It argues that the state statute

provides for an enforcement mechanism designed to ensure that

employees        timely    receive    all     the   wages    to     which    they    are

entitled under an employment contract.                    As such, it contends,

the plaintiffs’ entitlement to unpaid wages necessarily turned

on   the     application       and     construction         of     the     CBA,   which

established        the     terms     and     conditions     of     the      plaintiffs’

employment at the plant through both its express terms and the

custom and practice that developed under it.                         Columbia Farms

argues     that    instead    of     recognizing    that     the    S.C.     Wages   Act

claims     for    unpaid     wages    were    preempted,     the     district     court

improperly allowed the jury to find that the plaintiffs entered

into separate agreements with Columbia Farms as to the manner by

which their compensable time would be calculated, even though

the CBA explicitly prohibited such side agreements.

     The plaintiffs contend that, rather than being preempted

under § 301 of the LMRA, the S.C. Wages Act provides remedies

for when an employer “fail[s] to inform [e]mployees in writing


                                             19
at the time of hire how much they would be paid and what hours

they were required to work.”             In other words, they maintain that

the S.C. Wages Act is a “notice statute” and that all Columbia

Farms    “had   to    do   to   comply    with     the     [Act]     when    it    hired

Employees was to indicate in writing that employees were paid

based on ‘line time.’”          Because Columbia Farms failed to do that

and instead informed new employees that they would be paid based

on when they clocked in and out, the plaintiffs argue that they

were entitled under the state statute to recover the difference

in their wages between “line time” and “clock time,” regardless

of what the CBA actually provided or the long-standing custom

and practice at the plant had been.                They thus argue that their

S.C.    Wages   Act   claims     did   not    depend     on    the    CBA    and   were

therefore not preempted.

       The S.C. Wages Act was designed to “protect employees from

the unjustified and wilful retention of wages by the employer.”

Rice v. Multimedia, Inc., 456 S.E.2d 381, 383 (S.C. 1995).                           The

Act provides employees in South Carolina with a cause of action

to recover for an employer’s “failure to pay wages due to an

employee as required by Section 41-10-40 or 41-10-50.”                              S.C.

Code Ann. § 41-10-80(C).               In turn, § 41-10-40 directs South

Carolina   employers       to   timely    pay    their     employees        “all   wages

due,”    and    § 41-10-50      similarly       provides      that   when     a    South

Carolina employer discharges an employee, it must timely pay

                                         20
that employee “all wages due.”                   See also Mathis v. Brown & Brown

of S.C., Inc., 698 S.E.2d 773, 781 (S.C. 2010).                              The S.C. Wages

Act defines the term “wages” as “all amounts at which labor

rendered      is       recompensed,        whether         the     amount    is   fixed     or

ascertained           on   a   time,    task,   piece,        or   commission     basis,    or

other method of calculating the amount and includes vacation,

holiday, and sick leave payments which are due to an employee

under any employer policy or employment contract.”                                S.C. Code

Ann. § 41-10-10(2) (emphasis added); see also Allen v. Pinnacle

Healthcare Sys., LLC, 715 S.E.2d 362, 365 (S.C. Ct. App. 2011)

(“The Act also defines ‘wages’ as ‘all amounts . . . which are

due    to    an       employee    under    any       .    .   .    employment     contract’”

(omissions in original) (quoting S.C. Code Ann. § 41-10-10(2))).

       In essence, the plaintiffs’ cause of action under S.C. Code

Ann. § 41-10-80(C) is based on their claim that Columbia Farms

owed them unpaid wages resulting from its failure to count their

hours in accordance with employment contracts that were based on

what Columbia Farms told them when they were hired and that

stood separate and apart from the CBA.                             We conclude, however,

that   such       a    theory     of    recovery         cannot    support    their      claims

because of the CBA’s terms and the supremacy of federal law that

provides for the CBA’s enforcement.

       Any    wages        owed    to    the     plaintiffs         in   this     case    were

necessarily those agreed to in the CBA negotiated between the

                                                21
Union and Columbia Farms.             That is the only contract on which

their S.C. Wages Act claims can be based, inasmuch as the CBA

provides that it was to be the exclusive contract of employment,

with Columbia Farms specifically agreeing with the Union that it

would not “enter into any other Agreement or contract with its

employees,     individually      or    collectively,      which    in    any     way

conflicts with the terms and provisions of this Agreement.”                      And

the CBA’s terms were binding on the plaintiffs as members of the

bargaining unit.

       As to wages, the parties agreed in the CBA to an 8-hour day

and a 40-hour week as the “basic” work day and work week and to

a specified rate of pay per hour “for all hours worked.”                       Also,

as the district court recognized, the company and its employees

had operated for years under a custom and practice of the CBA

that the “hours worked” be calculated based on “line time.”                     The

CBA    also   provided   for    two    unpaid   breaks    during   a    work    day,

totaling approximately 60 minutes, “the allocation between the

meal    and    rest   periods     to    be    allocated    by     the   Company.”

Moreover, should any employee have a dispute “aris[ing] over the

interpretation” of those provisions, he or she was required to

follow the specified grievance procedure and, ultimately, the

arbitration procedure.

       It is therefore apparent that the plaintiffs’ claims under

the S.C. Wages Act are nothing other than a disagreement with

                                         22
Columbia Farms’ interpretation of how to calculate their “hours

worked” under the CBA, including the two unpaid breaks provided

for in the CBA.        The company asserts that compensable time was

properly measured based on “line time,” so that employees would

start being paid when the line commenced and would no longer be

paid when the line stopped, either for breaks or at the end of

the shift.       The plaintiffs assert that compensable time was to

be measured generally by when they were “on the clock” and, as

to the breaks, when they were in the break room after having

taken off their protective gear and washed up.                    While both sides

have looked to a range of evidence to resolve the dispute --

e.g., the representations at orientation, the Employee Handbook,

and the practices followed -- the question at bottom remains

what the CBA intended.           For this reason, we conclude that the

dispute    under    the   S.C.      Wages    Act   necessarily         implicates   an

interpretation of the CBA and therefore that the proceedings are

preempted by § 301 of the LMRA.

     Section 301 of the LMRA provides that “suits for violation

of   contracts     between     an    employer      and    a    labor     organization

representing employees . . . may be brought in any district

court of the United States having jurisdiction of the parties.”

29 U.S.C. § 185(a).           This provision “not only provides federal

courts    with    jurisdiction      over     employment       disputes    covered   by

collective       bargaining    agreements,         but   also     directs     federal

                                            23
courts to fashion a body of federal common law to resolve such

disputes.”          McCormick v. AT&T Tech., Inc., 934 F.2d 531, 534

(4th    Cir.        1991)     (en    banc).         Moreover,     to    ensure     uniform

interpretation           of     collective     bargaining        agreements        and        to

protect the power of arbitrators, the Supreme Court has found

that § 301 preempts and entirely displaces “any state cause of

action for          violation       of   contracts    between     an    employer        and   a

labor       organization.”           Franchise      Tax    Bd.   v.    Constr.     Laborers

Vacation Trust, 463 U.S. 1, 23 (1983) (emphasis added) (internal

quotation marks and citation omitted).                     As a result, a plaintiff

may not rely on state law “as an independent source of private

rights to enforce collective bargaining contracts.”                           Caterpillar

Inc. v. Williams, 482 U.S. 386, 394 (1987) (internal quotation

marks and citation omitted).                  Not only does this mean that a

plaintiff may not pursue a state law breach of contract claim to

enforce a collective bargaining agreement, but it also means

that    a    plaintiff        may    not   “evade    the    requirements      of    §    301”

through artful pleading.                   Allis-Chalmers Corp. v. Lueck, 471

U.S. 202, 211 (1985).                Accordingly, when resolution of a state

law claim depends substantially on the analysis of a collective

bargaining agreement’s terms, it must either be treated as a

claim       under    §   301,       subject   to    dismissal     if    the    collective

bargaining agreement’s grievance and arbitration procedures have

not been followed, or alternatively be dismissed as preempted by

                                              24
§ 301.    Id. at 220-21; see also Davis v. Bell Atl.-W. Va., Inc.,

110 F.3d 245, 247 (4th Cir. 1997).

       To be sure, the Supreme Court has pointed out that “§ 301

cannot     be    read    broadly      to     pre-empt        nonnegotiable           rights

conferred on individual employees as a matter of state law.”

Livadas v. Bradshaw, 512 U.S. 107, 123 (1994).                           And “when the

meaning of contract terms is not the subject of dispute, the

bare     fact   that     a    collective-bargaining            agreement         will     be

consulted in the course of state-law litigation plainly does not

require the claim to be extinguished.”                      Id. at 124.          But when

the    evaluation       of    the    state      law    claim       “is        inextricably

intertwined      with    consideration          of    the    terms       of    the   labor

contract,”      Allis-Chalmers,      471     U.S.     at    213,   such       that   it   is

necessary to interpret the collective bargaining agreement to

resolve the claim, Lingle v. Norge Div. of Magic Chef, Inc., 486

U.S. 399, 409-10 (1988), the claim is preempted under § 301.

Accordingly,      “it    is    the    legal      character         of    a     claim,     as

independent of rights under the collective-bargaining agreement

(and not whether a grievance arising from precisely the same set

of facts could be pursued) that decides whether a state cause of

action may go forward.”             Livadas, 512 U.S. at 123-24 (internal

quotation marks and citations omitted).

       In this case, the plaintiffs cannot claim independent state

contract rights because the wages that they claim are due were

                                           25
addressed by the CBA, which provided further that it was the

exclusive contract governing the wages to be paid by Columbia

Farms    to    the   members    of    the    bargaining      unit.       At   a   more

particular level, this case is nothing more than a suit for the

collection of wages based on whether “hours worked,” as that

term is used in the CBA, should be computed based on “line time”

or    “clock   time.”    Accordingly,           we   hold   that   the   plaintiffs’

claims under the S.C. Wages Act are preempted by § 301 of the

LMRA and should not have been submitted to the jury.

       The plaintiffs seek to avoid this conclusion by disavowing

reliance on the collective bargaining agreement and asserting

that their claims are based on a notice provision of the S.C.

Wages Act, which provides that “[e]very employer shall notify

each employee in writing at the time of hiring of the normal

hours and wages agreed upon, the time and place of payment, and

the    deductions    which     will   be    made     from   the    wages,   including

payments to insurance programs.”                S.C. Code Ann. § 41-10-30(A).

The plaintiffs argue that Columbia Farms violated this provision

when it failed “to indicate in writing that employees were paid

based on ‘line time.’”

       First, it is far from clear whether § 41-10-30(A) required

Columbia Farms to provide written notice to its employees that

their “normal hours” would be measured based on “line time.”

See Carolina Alliance for Fair Emp’t v. S.C. Dep’t of Labor,

                                           26
Licensing & Regulation, 523 S.E.2d 795, 802 (S.C. Ct. App. 1999)

(rejecting plaintiffs’ position that “the exact amount of the

employee’s      wages       must     be     disclosed”        under        the        Act).

Nonetheless, reading § 41-10-30(A) as plaintiffs would have it

would still not provide the plaintiffs with a remedy, as the

S.C.   Wages    Act    specifies     that      the   remedy    for    an   employer’s

violation of § 41-10-30 is “a written warning by the Director of

the    Department      of   Labor,   Licensing,        and    Regulation         or    his

designee for the first offense and . . . a civil penalty of not

more   than    one    hundred   dollars        for   each    subsequent     offense.”

S.C. Code Ann. § 41-10-80(A).

       In an effort to avoid this barrier, the plaintiffs argue

that the notice provision in § 41-10-30(A) is incorporated into

the provision imposing a duty on employers to timely pay their

employees “all wages due,” § 41-10-40(D), for which there is a

private cause of action, § 41-10-80(C).                       Section 41-10-40(D)

provides that “[e]very employer in the State shall pay all wages

due at the time and place designated as required by subsection

(A) of § 41-10-30,” and the plaintiffs take this cross reference

to mean that the “wages due” to an employee are whatever wages

the employer notified the employee he would be receiving at the

time of hire.         Based on this interpretation, they maintain that

because Columbia Farms told them “they would be paid by the

clock at the time of hire and would work nine (9) hour shifts,”

                                          27
Columbia     Farms   somehow       created       a     term    of   employment         that     it

breached by paying them based on “line time.”                                 They maintain

that    their    claim     to   unpaid    wages        is     therefore       not    preempted

because “[n]o resort to any CBA was necessary for the jury to

determine Employees were not told that they would be paid based

on ‘line time’ when they were hired.”

       Several problems are inherent with this theory.                               First, as

a textual matter, the far more natural reading of § 41-10-40(D)

is that it references § 41-10-30(A) to describe when and where

wages    are    to   be    paid,    not     the      amount       of    wages       due    to   an

employee.       In other words, § 41-10-30(A) requires employers to

notify their employees of “the time and place of payment,” and §

41-10-40(D)       then    uses     that   “time         and    place”        designation        to

establish when and where wages must be paid.                            See Ross v. Ligand

Pharm., Inc., 639 S.E.2d 460, 471 (S.C. Ct. App. 2006).

       But     far   more        fundamentally,             the     plaintiffs’           theory

ultimately      undermines       the   role       of    the       CBA   as    the    exclusive

contract for the payment of wages.                     They argued to the jury that

even though they were hired into positions covered by the CBA,

they    nonetheless         also    entered          into      individual           employment

contracts with Columbia Farms when they were hired that were

independent of the CBA and that entitled them to be paid on a

“clock time” basis, regardless of what the CBA provided.                                     This

approach,       however,    cannot     be     accepted         without        doing       serious

                                            28
damage    to     the    system       of        collective         bargaining            because,       at

bottom, the plaintiffs seek to displace the CBA that established

the terms and conditions of their employment and to replace it

with    what     they    understood            to    be    Columbia          Farms’       individual

agreements       that    compensable            hours      would       be        calculated       based

solely on when they clocked in and out of work.                                   Obviously, this

theory would inappropriately usurp the CBA’s federally protected

role.      See    Caterpillar            Inc.,       482       U.S.    at    396        (noting    that

“[i]ndividual         contracts       cannot         subtract         from       collective       ones”

(quoting    J.I.       Case    Co.       v.    NLRB,       321    U.S.       332,       339   (1944))

(internal      quotation       marks          omitted));         see    also,       e.g.,       Fox    v.

Parker    Hannifin       Corp.,          914    F.2d       795,       801        (6th    Cir.     1990)

(“[E]mployees covered by a CBA cannot rely upon the existence of

a separate, individual employment contract giving rise to state

law claims”); Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d

1283, 1286 (9th Cir. 1989) (“Since Chmiel’s independent contract

claim    concerns       a     job     position            governed          by    the     collective

bargaining       agreement,         it    is     completely            preempted         by     section

301”); Darden v. U.S. Steel Corp., 830 F.2d 1116, 1120 (11th

Cir. 1987) (per curiam) (holding preempted plaintiffs’ claims

“that    they      entered          into        oral       agreements,             for     unionized

positions,       that       clearly       sought          to    limit        or    condition          the

provisions       of     the     collective               bargaining          agreement,           which

established the terms and conditions of employment”).                                         Indeed,

                                                    29
the plaintiffs’ approach would undermine one of the fundamental

goals of § 301 preemption by allowing employees covered by a

collective bargaining agreement to circumvent their arbitration

commitments by positing the existence of individual contracts

that cover the same ground as a collective one but lack an

arbitration provision.        Moreover, the plaintiffs’ theory in this

case cannot be reconciled with the provision of the CBA in which

Columbia Farms agreed “not to enter into any other Agreement or

contract with its employees, individually or collectively, which

in    any   way   conflicts   with   the    terms   and    provisions      of   [the

CBA].”

       In sum, we conclude that any entitlement the plaintiffs

have in this case to unpaid wages under the S.C. Wages Act must

stem from the CBA that governed the terms and conditions of

their employment, including their wages.                Since it is undisputed

that the plaintiffs did not pursue the grievance and arbitration

procedures provided by the CBA, these claims should have been

dismissed as preempted by § 301 of the LMRA.


                                      III

       With respect to the district court’s decision, following a

bench trial, that Columbia Farms violated the rights of eight of

its    former     employees   under    S.C.      Code     Ann.   §   41-1-80       by

terminating       their   employment        in      retaliation      for        their


                                       30
institution of workers’ compensation proceedings, Columbia Farms

contends that the district court applied an unprecedented test

for    when        an        employee          “institutes”                workers’        compensation

proceedings.            It also contends that the district court erred in

finding       a     causal              relationship                 between         Columbia         Farms’

termination             of        the         plaintiffs’                employment           and         their

“institution” of workers’ compensation proceedings.

       Section 41-1-80 of the South Carolina Code provides that

“[n]o employer may discharge or demote any employee because the

employee      has     instituted              or    caused          to    be    instituted,         in    good

faith,     any      proceeding                under           the     South         Carolina        Workers’

Compensation Law.”                (Emphasis added).

       With       respect          to    Natasha              Atkinson,         Anna    Edens,        Shiren

Johnson, Shirley Baisey, Tamortha Bruster, and Steven Case, none

actually      filed          a    workers’          compensation               claim    prior        to    the

termination of his or her employment.                                    The district court found,

however,       that          they       had        “instituted”            workers’        compensation

proceedings within the meaning of the statute based on their

“receipt      of    treatment             for       their           injuries        from   the       nurse’s

office, combined with their requests to visit the company doctor

or    Taylor’s      representation                  to    them       that       they    had    to     see    a

private       doctor,            and    their        submission                of    documentation          to

Columbia Farms showing that they had sought medical care for

their injuries.”                 Atkinson, 874 F. Supp. 2d at 477; see also id.

                                                         31
at 478-480.    This conclusion, however, applied a test that is

insufficient   under    South    Carolina        law   to   show    that       workers’

compensation proceedings had been “instituted.”

     To be sure, the South Carolina Supreme Court has indicated

that § 41-1-80 does not “require a formal filing of a Workers’

Compensation   Claim    by     the   employee,”        reasoning        that    “[t]he

purpose of this statute cannot be avoided by firing an injured

employee before he or she files a claim.”                       Johnson v. J.P.

Stevens & Co., Inc., 417 S.E.2d 527, 529 (S.C. 1992).                          Pointing

to decisions in other jurisdictions that had “held other conduct

sufficient to have instituted a proceeding including [1] the

employer’s agreement to pay or payment of medical care or [2]

the employer’s receipt of written notice from an independent

health care provider in the form of a bill for medical services

rendered to an injured employee,” the South Carolina Supreme

Court   held   that    “these    types      of    conduct     will      suffice     to

constitute instituting a proceeding under our statute as well.”

Id. (emphasis added).          The South Carolina Supreme Court has,

however, never recognized any other conduct as sufficient to

satisfy the statutory requirement.

     The   district    court    in   this    case      failed      to    follow    the

jurisprudence of the South Carolina Supreme Court and did not

require plaintiffs to show either (1) that Columbia Farms agreed

to pay for the plaintiffs’ medical care or (2) that Columbia

                                      32
Farms     received      a   bill      for    the    plaintiffs’       care      from   an

independent     health      care      provider.       And    the   circumstances        of

these    six   employees       do    not    satisfy    those   requirements.           The

district court relied on the fact that these six employees had

submitted documentation to Columbia Farms to show that they had

sought    medical       care    for     their     injuries,     but     there    was   no

indication, direct or implied, that they were doing so in order

to seek reimbursement for their medical bills.                     To the contrary,

the evidence showed that the plaintiffs provided doctors’ notes

to Columbia Farms in their efforts to minimize their attendance

points.     We therefore conclude that the district court erred in

holding    that     these      six    employees       had    “instituted”       workers’

compensation proceedings within the meaning of S.C. Code Ann. §

41-1-80.

     We also agree with Columbia Farms that the district court

erred in concluding that the termination of these plaintiffs’

employment      resulted         from       their     institution        of     workers’

compensation       proceedings.             The     record     showed     that     their

employment was terminated under the established point system,

and regardless of whether that system was fairly administered,

the plaintiffs did not establish that it was a mechanism for

retaliation       for    their       institution      of     workers’     compensation

proceedings.       To the contrary, the district court found that the



                                             33
plaintiffs’          employment      was    terminated      by     reason        of   Nurse

Taylor’s erroneous classification of their injuries.

       Again,        the   statute       provides   that     “[n]o        employer       may

discharge       or    demote     any     employee   because       the     employee       has

instituted      or     caused     to   be    instituted,     in     good       faith,    any

proceeding under the South Carolina Workers’ Compensation Law.”

S.C.    Code     Ann.      §   41-1-80      (emphasis     added).         It     specifies

further:

       Any employer shall have as an affirmative defense to
       this   section  the following:   wilful   or  habitual
       tardiness or absence from work; being disorderly or
       intoxicated while at work; destruction of any of the
       employer’s property; failure to meet established
       employer work standards; malingering; embezzlement or
       larceny of the employer’s property; violating specific
       written company policy for which the action is a
       stated remedy of the violation.

Id. (emphasis added).             Interpreting these provisions, the South

Carolina Supreme Court has held that “[t]he appropriate test of

causation under § 41-1-80 is the ‘determinative factor’ test,”

which “requires the employee [to] establish that he would not

have   been     discharged        ‘but     for’   the   filing      of    the     workers’

compensation claim.”              Hinton v. Designer Ensembles, Inc., 540

S.E.2d 94, 97 (S.C. 2000).               The South Carolina Supreme Court has

further    held       that     “[w]hile     the   employer       has     the    burden    of

proving its affirmative defenses, the employer does not have the

burden    of    establishing       the      affirmative    defenses        are    causally

related to the discharge,” id., because such a requirement would

                                             34
“effectively shift[] the burden to [the] employer to disprove

that the discharge was in retaliation for filing the claim,”

Wallace v. Milliken & Co., 406 S.E.2d 358, 360 (S.C. 1991).

Instead, “[t]he ultimate burden of persuading the trier of fact

that   the    employer    retaliatorily       discharged        the   employee    for

exercising statutory rights under the Act remains at all times

with the employee.”         Id. (quoting Buckner v. Gen. Motors Corp.,

760 P.2d 803, 807 (Okla. 1988)).               The employee may carry the

burden,      “either    directly   by    persuading       the    court     that   the

discharge     was    significantly      motivated   by    retaliation       for   her

exercise of statutory rights, or indirectly by showing that the

employer’s proffered explanation is unworthy of credence.”                        Id.

(citation omitted).         “If the employer articulates a legitimate,

nonretaliatory reason for the termination, the proximity in time

between      the    work-related   injury     and   the    termination       is   not

sufficient evidence to carry the employee’s burden of proving a

causal connection.”        Hinton, 540 S.E.2d at 97.

       The district court did not adhere to these principles in

resolving the retaliation claims brought by the six plaintiffs

who reported having sore or injured hands.                 It erred by failing

to hold these plaintiffs to their burden of proving that they

“would not have been discharged ‘but for’ the filing of the

workers’      compensation    claim.”         Hinton,     540     S.E.2d    at    97.

Instead, it concluded that they had established the requisite

                                         35
causal connection by showing that they would not have been fired

“but    for”   Nurse    Taylor’s       determination           that   their       conditions

were not related to work.              See, e.g., Atkinson, 874 F. Supp. 2d

at 478 (“But for Taylor’s refusal to allow Baisey to visit the

company      doctor,    Baisey       would    not       have    accumulated       excessive

attendance points”).           It could be argued, as the district court

suggested,      that       Nurse   Taylor         may    have     misclassified          these

employees’ injuries, resulting in their failing to receive the

benefit of Columbia Farms’ more lenient policies for employees

with injuries it considered to be work related.                              But, without

more, this fails to establish that Columbia Farms discharged

these six individuals in retaliation for the exercise of their

statutory      rights      under   South     Carolina’s         workers’        compensation

law.

       Because the district court (1) applied the wrong test under

South     Carolina      law    for     determining         whether        the     plaintiffs

“instituted      proceedings”         under       §    41-1-80    and     (2)     failed    to

demand proof sufficient to satisfy South Carolina’s test for

causation, we reverse the judgments in favor of Atkinson, Edens,

Johnson, Baisey, Bruster, and Case.

        The retaliation claims brought by Billy Harris and Lisa

Jamison stand on a different footing.                         Both of these employees

fell    at   work    and    were     treated      by    the     company    doctor.         The

district       court       thus      properly          concluded      that        they     had

                                             36
“instituted”         workers’      compensation         proceedings       within       the

meaning of the statute prior to their discharge.                          See Johnson,

417 S.E.2d at 529.           Indeed, Jamison actually filed a workers’

compensation claim prior to the termination of her employment,

although      the    district      court    did     not    rely     on     this    fact.

Moreover, even though Columbia Farms proffered a nonretaliatory

reason for why it terminated Harris’ employment -- that he left

the line without permission -- the district court was entitled

to   accept      Harris’s      account     that    he     actually       had    received

permission     to    leave   the    line    in    order    to   visit     the     nurse’s

station.       Similarly,       Columbia    Farms       represented      that     it    was

terminating Jamison’s employment because she had taken excessive

breaks.        But     again,    the     district       court     found     that       that

explanation lacked credence since the company doctor had advised

Jamison to take frequent breaks and she was returning from the

nurse’s station each time she was spotted outside of her work

area.      The      district     court     was    also     entitled       to    consider

persuasive “the fact that a supervisor at Columbia Farms [had]

indicated that Jamison would likely be terminated as a result of

her injury.”        Atkinson, 874 F. Supp. 2d at 481-82.

     Columbia        Farms   nonetheless         challenges     the      judgments      in

favor of these two plaintiffs, arguing that an extended period

of time would have elapsed before they would have been able to

perform    their       normal      job     duties,       thus     justifying       their

                                           37
discharge.       There is some force to this position, as the statute

does    specify       that    an   employer         “shall    have    as    an    affirmative

defense”    an       employee’s         “failure     to    meet     established      employer

work standards.”             S.C. Code § 41-1-80; see also Horn v. Davis

Elec.    Constructors,          Inc.,         416    S.E.2d    634,    637       (S.C.     1992)

(holding       that    §     41-1-80      “does      not     singularly      accord      to    an

employee       the     right       to     a    reasonable          period    of     time       for

rehabilitation to demonstrate the ability to perform his former

employment”).         But in Horn, the court also affirmed the judgment

entered in favor of an employee, even though the record showed

that he was totally disabled for almost a year as a result of an

on-the-job injury to his back and then only released to return

to work with restrictions that prevented him from performing his

former job.           Id. at 634-35.                We conclude that this decision

controls       Columbia       Farms’      argument.           We    also    note,    in     this

regard, that the district court specifically found that Jamison

was not entitled to any lost wages on the ground that she had

failed    to    mitigate       her      damages      after     her    discharge,         and   it

awarded lost wages to Harris only after finding that he “had

been on light duty before the company doctor released him to

return to full duty, and [he] did not indicate that he would not

have been physically able to return to light duty, pursuant to

any medical restrictions, if Columbia Farms had not terminated

his employment.”           Atkinson, 874 F. Supp. 2d at 481.

                                                38
      Finding no error with respect to Harris and Jamison, we

affirm the district court’s judgments in their favor.


                                      IV

      For the reasons given, we reverse the judgments (including

attorneys’ fees) in favor of the 16 plaintiffs who prevailed

below on claims under the S.C. Wages Act, concluding that those

claims should have been dismissed as preempted under § 301 of

the LMRA; we reverse the judgments on the retaliation claims

brought by Atkinson, Edens, Johnson, Baisey, Bruster, and Case

for   their   failure   to   prove   their   claims;   and   we   affirm   the

judgments in favor of Harris and Jamison on their retaliation

claims.

                                     AFFIRMED IN PART; REVERSED IN PART




                                      39
KING, Circuit Judge, concurring in part and dissenting in part:

     I respectfully disagree with the panel majority’s decision

except its affirmance of the judgments in favor of plaintiffs

Billy Harris and Lisa Jamison on their workers’ compensation

retaliation claims.           Indeed, I would fully affirm the district

court,     which   carefully        and    capably          adjudicated      all       of   the

retaliation and unpaid wages claims asserted herein.

     With respect to the unpaid wages claims, the district court

properly    allowed     a    jury    trial          on    whether      defendant       Columbia

Farms violated the South Carolina Payment of Wages Act by, inter

alia, providing written notice to employees that they would be

paid based on “clock time,” while compensating them for only

“line time.”        See S.C. Code § 41-10-30(A) (requiring “[e]very

employer [to] notify each employee in writing at the time of

hiring of the normal hours and wages agreed upon,” as well as to

make “[a]ny changes in these terms . . . in writing at least

seven calendar days before they become effective”); see also

Carolina     Alliance       for   Fair     Emp’t          v.    S.C.    Dep’t     of    Labor,

Licensing,    &    Regulation,       523       S.E.2d      795,     803   (S.C.    Ct.      App.

1999) (“The statute is a notice statute.                               It is intended to

provide the employee with the information requisite to make an

educated     decision       whether       or        not    to   accept     employment.”).

Significantly, the evidence was sufficient for the jury to find

that — despite Columbia Farms’s practice of paying employees

                                               40
premised    on   “line    time,”    a   practice      permitted     by    but   not

elucidated in the collective bargaining agreement (the “CBA”) —

each and every document provided to the plaintiffs indicated

that their wages would instead be for “clock time.”                      The court

thus correctly determined that the plaintiffs presented valid

state law claims for recovery of unpaid wages.                      See Evans v.

Taylor Made Sandwich Co., 522 S.E.2d 350, 352-53 (S.C. Ct. App.

1999) (invoking section 41-10-30(A) in upholding a jury verdict

and   treble     back    wages     award     in    favor   of   employees       who

“interpreted [a posted] document as Taylor Made’s promise to pay

[them] 0.6133 cents per sandwich produced,” but who actually

received “wages based on a per package rate, which may include

one and a half or two sandwiches”), overruled on other grounds

by Barron v. Labor Finders of S.C., 713 S.E.2d 634, 638 (S.C.

2011).

      The district court was also right to rule that the unpaid

wages claims were not preempted by § 301 of the Labor Management

Relations    Act   (the    “LMRA”),        29     U.S.C.   § 185.        That   is,

resolution of the claims did not require interpretation of the

CBA, which, again, was silent on the “line time”-“clock time”

issue.     See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399, 405-06 (1988) (explaining that § 301 preemption occurs when

“the resolution of a state-law claim depends upon the meaning of

a collective-bargaining agreement”).                Moreover, § 301 does not

                                        41
otherwise preempt “nonnegotiable rights conferred on individual

employees as a matter of state law” — here, the right to written

notice       of     their    normal       hours      and    wages.           See     Livadas    v.

Bradshaw, 512 U.S. 107, 123 (1994); see also Lingle, 486 U.S. at

409    (observing        that       “§ 301     pre-emption            merely    ensures       that

federal       law    will     be    the     basis     for       interpreting         collective-

bargaining agreements, and says nothing about the substantive

rights a State may provide to workers when adjudication of those

rights       does     not     depend        upon      the       interpretation         of     such

agreements”).          Simply put, the CBA did not free Columbia Farms

to    disseminate       misleading          wage-and-hour         notices       or    exempt    it

from the consequences of doing so.

       As for the workers’ compensation retaliation claims, the

district court properly entered judgments for eight plaintiffs —

the    two    that     we    affirm       today,     plus       the    six    that    the   panel

majority       reverses       (those      in   favor       of    Natasha       Atkinson,      Anna

Edens,     Shiren      Johnson,       Shirley        Baisey,      Tamortha         Bruster,    and

Steven       Case).         Those    latter     judgments         also       merit    affirmance

because       the     court        heeded      controlling            principles      of    South

Carolina law, including the following:

       ●       “‘In order to prove a claim [of workers’
               compensation discrimination under South Carolina
               Code section] 41-1-80, a plaintiff must establish
               three elements:   (1) the institution of workers’
               compensation   proceedings,   (2)   discharge  or
               demotion, and (3) a causal connection between the
               first two elements,’” Atkinson v. House of

                                                42
           Raeford Farms, Inc., 874 F. Supp. 2d 456, 475
           (D.S.C.   2012)   (quoting  Hinton   v.   Designer
           Ensembles, Inc., 540 S.E.2d 94, 97 (S.C. 2000));

     ●     “Proving a claim under section 41-1-80 does not
           require    a   formal   filing   of   a   workers’
           compensation claim,” as “[t]he Supreme Court of
           South Carolina has held that conduct sufficient
           to   be   considered  instituting   a   proceeding
           includes ‘the employer’s agreement to pay or
           payment of medical care or the employer’s receipt
           of written notice from an independent health care
           provider in the form of a bill for medical
           services rendered to an injured employee,’” id.
           (quoting Johnson v. J.P. Stevens & Co., 417
           S.E.2d 527, 529 (S.C. 1992)); and,

     ●     “To establish causation under section 41-1-80,
           the employee must show that he would not have
           been discharged ‘but for’ the institution of the
           workers’ compensation claim” — a burden that the
           employee may satisfy “either by ‘persuading the
           court   that   the  discharge  was  significantly
           motivated by retaliation for her exercise of
           statutory rights, or indirectly by showing that
           the employer’s proffered explanation is unworthy
           of credence,’” id. at 475-76 (quoting Hinton, 540
           S.E.2d at 97).

The district court sensibly predicted that the Supreme Court of

South Carolina would add to Johnson’s non-exhaustive list of

proceeding-instituting      conduct       “an        employee’s     seeking        or

receiving of medical treatment from the employer accompanied by

circumstances    which   would   lead    the    employer    to    infer     that   a

workers’     compensation   claim   is    likely       to   be    filed.”      See

Atkinson, 874 F. Supp. 2d at 475.                Concomitantly, the court

reasonably     determined   that    the        six     plaintiffs     instituted

proceedings by seeking treatment from the Columbia Farms nurse’s


                                    43
office, requesting to see the company doctor, and ultimately

resorting to private care for conditions regularly incurred in

the   workplace    and   typical       of    workers’       compensation      claims    —

those     conditions     being     “sore         hands”/carpal       tunnel     syndrome

(Atkinson, Edens, Johnson, and Baisey), an injured and infected

finger    (Bruster),     and     injured         hands    (Case).      As     the   court

recognized,      notwithstanding            the     company       nurse’s      professed

beliefs “that carpal tunnel syndrome is [not] a work related

injury” and that Bruster’s and Case’s injuries were sustained

elsewhere, see id. at 462, 465, 467, the six plaintiffs had all

expressly     attributed       their        conditions       to    their      labors   at

Columbia Farms.

      Finally, the district court’s causation rulings were also

legally    and   factually       sound.          The     court    concluded    that    the

reason articulated by Columbia Farms for discharging Atkinson,

Edens, and Johnson — that they failed to secure notes from their

private physicians permitting them to return to work without

restrictions — was unworthy of credence.                         In that regard, the

court pointed to the company nurse’s testimony “that Columbia

Farms generally made accommodations, such as light duty, for

employees with workers’ compensation injuries.”                         See Atkinson,

874 F. Supp. 2d at 476-77 (explaining that “where an employer

sets forth the employee’s inability to perform his job duties as

the   employer’s    reason     for     terminating         the    employee,     evidence

                                            44
that the employer had a policy of accommodating employees with

workers’     compensation    injuries,     coupled    with     the   employer’s

failure     to    accommodate   the   plaintiff[,]       may    support    that

plaintiff’s assertion that the employer’s proffered reason for

termination was mere pretext”).            The court further found that,

in firing Baisey, Bruster, and Case, Columbia Farms pretextually

invoked their excessive attendance points — points that they

would not have accumulated but for the company nurse’s flimsy

appraisal     that    they   sustained     their     injuries    outside    the

workplace.       See, e.g., id. at 478 (“Although Baisey’s employment

at Columbia Farms included repetitive use of her hands, [the

company nurse] independently determined that Baisey’s injury was

not work related and refused to allow her to visit the company

doctor for further assessment.             As a result, Baisey received

attendance points for the absences associated with her injury,

and was terminated from employment.”).

     Simply put, because I agree with its cogent analysis, I

would affirm the district court across-the-board.




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