UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

H. RAY RAMBLER,
Plaintiff-Appellee,

v.
                                                               No. 98-2636
ROCHEZ BROTHERS, INC.; JOSEPH J.
ROCHEZ, JR.; ROBERT E. SHEBECK,
Defendants-Appellants.

H. RAY RAMBLER,
Plaintiff-Appellant,

v.
                                                               No. 98-2687
ROCHEZ BROTHERS, INCORPORATED;
JOSEPH J. ROCHEZ, JR.; ROBERT E.
SHEBECK,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CA-98-137-6-13)

Argued: October 28, 1999

Decided: December 13, 1999

Before WILKINSON, Chief Judge, and LUTTIG and MICHAEL,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Larry K. Elliott, COHEN & GRIGSBY, P.C., Pittsburgh,
Pennsylvania, for Appellants. Thomas Louis Stephenson, NEXSEN,
PRUET, JACOBS & POLLARD, L.L.P., Greenville, South Carolina,
for Appellee. ON BRIEF: Helen E. Burris, NEXSEN, PRUET,
JACOBS & POLLARD, L.L.P., Greenville, South Carolina, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Rochez Brothers, Inc. ("Rochez"), appeals from the district court's
refusal to amend its judgment in favor of H. Ray Rambler under the
South Carolina Wage Payment Act, and from the district court's
denial of Rochez's motion for a new trial. Rambler cross-appeals
from the district court's denial of his motion to reconsider its decision
not to award him treble damages under the South Carolina Wage Pay-
ment Act. For the reasons that follow, we affirm.

I.

Rambler was employed by Rochez at its Hovis Precision Parts
manufacturing plant in Simpsonville, South Carolina from 1987 until
October 1, 1997. The terms of employment included a bonus program
defined in an April 1, 1987 letter addressed to Rambler and signed by
Rochez. The bonus program was designed to give Rambler a percent-
age of the plant's profits. Because the plant did not become profitable
until 1994, no bonuses were due until then. Rambler was paid
bonuses for 1995, 1996, and 1997, but these bonuses were for lesser
amounts than required by the formula set forth in the April 1, 1987
letter. Rambler testified that he demanded his bonus money on multi-

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ple occasions, J.A. 114-22, 124-29, and that Rochez told him that he
would be "taken care of." J.A. 144 ("He said, `I will take care of you
down the road.'"), 146, 151 ("I was promised if I stick with him,
down the road . . . I'd be taken care of.").

Rambler continued to work for Rochez until the plant was sold on
October 1, 1997. When Rochez failed to pay the bonuses due at the
time of separation (after the sale), Rambler sued for and recovered
bonus money for 1994, 1995, 1996, and 1997. The jury found that the
April 1, 1987 letter/agreement had not been revoked during the course
of Rambler's employment, and that Rochez had breached the agree-
ment and violated the Wage Payment Act, S.C. Code§ 41-10-10 et
seq., which requires payment of wages due to an employee after sepa-
ration.

Rambler also filed a motion requesting that the court add attorneys'
fees to the $150,000 verdict and reconsider its refusal to treble the
damages pursuant to S.C. Code § 41-10-80. 1 The court denied the
motion to reconsider but did add fees and costs to the verdict.

Rochez filed a motion for a new trial or, alternatively, an amend-
ment of judgment. The court denied the motion, although it did
reduce the verdict to $146,300 (plus fees). Rochez now appeals the
district court's decision, and Rambler cross-appeals.
_________________________________________________________________
1 S.C. Code § 41-10-80(c) provides:

          In case of any failure to pay wages due to an employee as
          required by [the Wage Payment Act] the employee may recover
          in a civil action an amount equal to three times the full amount
          of the unpaid wages, plus costs and reasonable attorney's fees as
          the court may allow.

(emphasis added). The South Carolina Supreme Court, in Rice v.
Multimedia, Inc., 456 S.E.2d 381 (S.C. 1995), explained that trebling is
discretionary. See id. at 384. ("We hold that the treble damages provision
. . . is not mandatory. Here, Trial Court, finding no evidence that Multi-
media acted intentionally or in bad faith, refused to award treble dam-
ages. We find no abuse of discretion . . . ."). Rochez pled an affirmative
defense that it acted in good faith, J.A. 27, and with no finding of bad
faith, the district court did not abuse its discretion in refusing to treble
damages in this case.

                    3
II.

Rochez claims that Rambler waived his 1994 bonus claim during
testimony at a deposition, and in the alternative, that his claim for
1994 damages is time-barred.

First, Rochez contends that Rambler waived his 1994 bonus claim
because Rambler, in his June 1998 deposition, denied that he was
seeking damages for the year ending June 1994, J.A. 79, and that
Rochez relied on these statements and did not prepare for the 1994
claim made at trial. The district court determined that the testimony
was relevant only insofar as it could be used to discredit Rambler
before the jury, and Rochez did in fact use it to attempt to discredit
Rambler. J.A. 60-61. Additionally, the district court reasoned that
Rochez was on notice of the 1994 claim because an October 1997 let-
ter from Rambler asked for $137,000 (which calculation necessarily
included the bonus owed for 1994, although "1994" was not men-
tioned), and because Rambler stated his damages as $150,000 in
response to interrogatories. Also, Rochez received, prior to trial, an
exhibit Rambler planned to use that included the 1994 damages.

Rochez does not question the content of the jury instruction on waiver2
but instead argues that the district court should not have instructed the
jury on waiver and should have found as a matter of law that Rambler
waived his claim to the 1994 bonus. Rochez cites no case law that
requires a district court to treat deposition testimony like Rambler's
testimony in this case as a "voluntary relinquishment of a known
right," and not to let the jury decide the factual question whether a
particular statement at a deposition constitutes a waiver. Instead,
Rochez merely argues that given the deposition testimony, the 1994
claim at trial was an unfair "ambush." See Appellants' Br. at 9. Given
the multiple ways in which the district court found that Rochez was
on notice of the 1994 claim -- Rambler's answer to interrogatories
and Rambler's exhibit for trial, which included the 1994 bonus -- the
_________________________________________________________________
2 In fact, Rochez concedes that"[w]aiver consists of a voluntary relin-
quishment of a known right," Appellants' Br. at 9, which is language vir-
tually identical to that used by the district court to instruct the jury on
waiver, see Trial Transcript 2-39 ("Waiver is defined as the intentional
relinquishment of a known right.").

                     4
court did not err in rejecting Rochez's argument that it was ambushed
and submitting the factual question of waiver to the jury.

And given the appropriate instruction on waiver, the jury was in a
position to evaluate the facts related to the 1994 claim, including the
deposition testimony. Because Rambler requested from Rochez bonus
money including the 1994 bonus on multiple occasions and gave
Rochez a trial exhibit that included the 1994 bonus, the jury could
reasonably have found that Rambler simply made a mistake at his
deposition when he denied asking for the 1994 bonus.

Second, Rochez contends that the 1994 bonus claim was time-
barred under the three-year statute of limitations because the bonus
was due in May 1994 and the present suit was not filed until Decem-
ber 1997. The district court determined that facts were adduced that
could support Rambler's theory that he did not discover the breach
until May 1995, or in the alternative, that Rochez's promises that
"we'll take care of you" forged a new contract that was not broken
until he was not taken care of upon separation. 3 J.A. 61-62.

This court must resolve two issues to decide whether the 1994
bonus claim was time-barred: the date of discovery and the effect of
Rochez's statement that Rambler would be taken care of. First, as to
the date of discovery, Rochez argues that Rambler should have
known that he was not being paid in May 1994, when he did not
receive the bonus. Rochez favorably cites Maher v. Tietex Corp., 500
_________________________________________________________________
3 S.C. Code § 41-10-80 provides that "[a]ny civil action for recovery of
wages must be commenced within three years after the wages become
due." (emphasis added). Neither party (nor the district court) cites this
provision in the portions of their briefs discussing the statute of limita-
tions. Instead, Rochez contends that S.C. Code § 15-3-530(1), the general
three-year statute of limitations for contract claims, is applicable. See
Appellants' Br. at 10. Even assuming S.C. Code § 41-10-80 applies, the
district court's decision that the jury could reasonably have found that a
new contract had been created would support a theory that the wages
then "became due" at the time of separation, when Rambler was not
"taken care of." Thus, the statute of limitations, even if narrowly read
under section 41-10-80, would not have started to run until the time of
separation, 1997. Additionally, Rochez concedes that the "date of discov-
ery of the breach" is the relevant date. See Appellants' Br. at 11.

                    5
S.E.2d 204 (S.C. Ct. App. 1998), in which the court held that the stat-
ute of limitations began to run when Maher inquired about not being
paid his bonus and was led to believe that he would get promotions
in lieu of bonuses. See id. at 207-08. However, the jury in the present
case could reasonably have found that Rambler was not on notice that
he would never be paid the bonuses: Rambler testified that he
believed the company had insufficient funds to pay him the 1994
bonus right away, J.A. 113, and when he did ask about his bonuses,
he was told that he would be "taken care of" sometime in the future.
J.A. 144, 151.

Second, as to the effect of Rochez's statements, Rambler makes an
estoppel argument that employer representations suggesting that the
bonus would be paid at some time tolled the statute of limitations.
The Maher court explained:

          In Workers' Compensation law, estoppel will toll the statute
          of limitations during the period of reliance if an employer
          "induces a claimant to believe the claim is compensable and
          will be taken care of without its being filed within the period
          required by the statute."

500 S.E.2d at 209 (emphasis added; citations omitted). Suggestions
that the employer will "take care of" the employee, then, can not only
prevent the clock from starting under the date of discovery theory but
can stop the clock if it had already started to run.

Rochez argues that statements that Rambler would be"taken care
of" did not amount to misrepresentations upon which Rambler could
rely. Although the Maher court found that Maher did not rely on mis-
representations, Rochez's attempt to analogize Maher to Rambler's
situation is unavailing. The Maher court made clear that estoppel tolls
the statute of limitations when the employer "induces a claimant to
believe the claim . . . will be taken care of ." In Maher, the employer
had suggested it would give promotions in lieu of the bonus; in the
present case, Rochez points to no reading of Rochez's promise to take
care of Rambler that would suggest anything but paying the bonuses
in the future. And, the jury heard evidence upon which it could have
found that Rambler was led to believe that he would be paid bonuses
due upon the plant's 1997 sale.

                    6
Therefore, the district court did not err in concluding that facts
could have been found to support Rambler's position that his claim
was timely filed.

III.

Rochez also claims that Rambler was estopped from making bonus
claims on the April 1, 1987 contract because he continued to work for
Rochez even though he did not receive the appropriate bonuses.
Rochez frames this claim by saying that the district court erred by not
overturning the jury verdict, because Rambler, by continuing to work
for Rochez, by law consented to any change in the bonus plan. This
claim, however, goes directly to the district court's jury instruction on
estoppel and to the jury's implied factual finding that there was no
estoppel. The jury instruction did accord with South Carolina law, and
factually, to the extent that Rambler could have reasonably believed
that he would eventually be paid his bonuses based on representations
by Rochez, he could not be said to have waived his claim to the
bonuses by continuing to work for Rochez.

The district court's jury instruction read:

           I also instruct you that an employer may make unilateral
          changes in prospective payments of wages, benefits, or poli-
          cies. These changes constitute offers for services that the
          employee may perform and by continuing to work, the
          employee accepts the proposed alterations in the employ-
          ment and may be estopped from recovering any lost money.

           However, if the employee continues to work and objects
          to the changes, he may not be estopped from trying to
          recover the money at issue and he has not represented to his
          employer that he has accepted the change.

J.A. 192 (emphasis added). Based on the South Carolina caselaw that
follows, the instruction is correct as a matter of law, and the jury
could reasonably have found that Rambler was not estopped from
recovering his bonuses, because he objected to Rochez's failure to
pay him his full bonuses.

                     7
Rochez cites Facelli v. Southeast Marketing Co., 327 S.E.2d 338
(S.C. 1985), in support of its argument that when an employee contin-
ues to work after a change in the terms of employment, he is estopped
from making a later claim based on that change. In Facelli, the South
Carolina Supreme Court held that where the employee was notified
that the commission rate had changed and the employee continued to
work without complaint for six more months, he impliedly consented
to the change. However, Facelli does not address the circumstance in
which the employee does not know of a change in policy or reason-
ably believes that, as a result of a policy change, he will be paid what
is coming to him later than when he was supposed to receive it.

Rochez also relies upon Matthews v. City of Greenwood, 407
S.E.2d 668 (S.C. Ct. App. 1991), in which the employee objected to
revocation of his personal use of the city car privilege at the time he
was notified of the change, but then continued to work for seven years
without complaint while abiding by the policy. In Matthews, the
South Carolina Court of Appeals held that the employee had
impliedly consented to the change. Two factors distinguish the pres-
ent case from Matthews, however. First, Rambler continued to object
throughout his tenure, and second, he was given assurances that he
would be paid, and so the jury could have reasonably found that he
never really followed the policy.

A third South Carolina case is most on point, however. In Estes v.
Roper Temporary Services, Inc., 403 S.E.2d 157 (S.C. Ct. App.
1991), where the employee did object to the change in compensation,
unlike the employee in Facelli, the South Carolina Court of Appeals
held that there was a genuine issue of material fact as to whether the
employee consented to the change and was therefore estopped from
objecting to the change. Therefore, the court's instruction permitting
the jury to determine whether Rambler had in fact consented to or
objected to the change was correct under Estes .

The district court's instruction was not in error under South Caro-
lina caselaw, and there is sufficient evidence in the record to support
the jury's finding that Rambler was not estopped from recovering his
bonuses.

                    8
IV.

Rochez makes three additional claims on appeal. We have
reviewed these claims and find them to be without merit. First,
Rochez claims that the district court erred when it referred to a docu-
ment as an "admission" because the jury might have interpreted the
evidentiary term as the court's assessment that the document was a
confession. What the court actually said was "It's an admission under
801[d](2)." J.A. 154. The court was not telling the jury that Rochez
admitted (i.e., "confessed") to the substance of or effect of the docu-
ment, and therefore the district court did not err.

Second, Rochez claims that the district court erred by not declaring
a mistrial when Rambler's attorney said "I think" twice in his closing
argument. However, Rochez neither requested a corrective instruction
nor contemporaneously objected to the instruction, and therefore, the
district court did not abuse its discretion.

Finally, Rochez claims that the district court erred in not admitting
evidence of Rambler's prior conviction. However, because Rochez
produced no evidence to show that the conviction occurred within the
requisite ten years prior to trial, see Fed. R. Evid. 609(b), and because
the district court held that the prejudicial effect outweighed the proba-
tive value, the district court did not err in excluding evidence of the
prior conviction.

For the reasons stated herein, the judgment of the district court is
affirmed.

AFFIRMED.

                     9
