THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Phillip D. Grimsley, Sr. and Roger M. Jowers, on Behalf 

of Themselves and Others Similarly Situated, 

Respondents, 

v. 

South Carolina Law Enforcement Division and the State 

of South Carolina, Defendants, 

of whom South Carolina Law Enforcement Division is 

the Petitioner. 

Appellate Case No. 2014-001059 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal from Richland County 

J. Ernest Kinard, Jr., Circuit Court Judge

Opinion No. 27598 

Heard September 23, 2015 – Filed December 23, 2015 

REVERSED 

William H. Davidson, II and Kenneth P. Woodington, 

both of Davidson & Lindemann, P.A., of Columbia, for 

Petitioner. 
                                                            

A. Camden Lewis and Ariail E. King, both of Lewis, 

Babcock & Griffin, L.L.P., of Columbia; Richard A. 

Harpootlian, of Richard A. Harpootlian, P.A., of 

Columbia; John A. O'Leary, of O'Leary & Associates, 

P.A., of Columbia; and James Walter Fayssoux, Jr., of 

Fayssoux Law Firm, P.A., of Greenville, for 

Respondents. 

JUSTICE KITTREDGE: We granted a writ of certiorari to review the court of 

appeals' opinion in Grimsley v. South Carolina Law Enforcement Division 

(Grimsley II), 408 S.C. 38, 757 S.E.2d 542 (Ct. App. 2014), which reversed the 

trial court's grant of summary judgment in favor of Petitioner South Carolina Law 

Enforcement Division (SLED). We reverse.

Respondents are former SLED agents who retired and were rehired by then SLED 

Chief Robert Stewart for a period of four years pursuant to a rehire program

formulated by Chief Stewart. At the conclusion of Respondents' service under the 

rehire program, they filed suit against SLED and the State under various theories, 

all premised on the allegation that SLED deducted from their salaries the amount 

of the employer's contribution to the retirement system. The State was granted 

dismissal of the Complaint pursuant to Rule 12(b)(6), SCRCP.1 On appeal, taking 

the allegations of the Complaint as true, we reversed and remanded. Grimsley v. 

S.C. Law Enforcement Div. (Grimsley I), 396 S.C. 276, 279, 283–86, 721 S.E.2d 

423, 424, 427–28 (2012). 

On remand and following discovery, the trial court granted SLED summary 

judgment, which the court of appeals reversed. Having carefully reviewed the 

record, we find the trial court properly granted summary judgment to SLED, for 

the record makes clear that Respondents were rehired at reduced salaries and the 

employer contributions to the retirement system were not deducted from those 

salaries, but were paid by SLED. As a result, we reverse the court of appeals and 

direct that judgment be entered for SLED. 

1

 SLED did not join in the State's motion to dismiss or participate in the appeal that 

followed. Grimsley v. S.C. Law Enforcement Div. (Grimsley I), 396 S.C. 276, 280 

n.2, 721 S.E.2d 423, 425 n.2 (2012). 
 

 

                                                            

I. 

This case arises out of a dispute over a hiring program created by SLED involving 

participants in the Police Officers Retirement System (PORS). We now have the 

benefit of an extensive record following discovery, and the essential facts are not 

in dispute. In 2002, the General Assembly eliminated salary caps for so-called 

working retirees, that is, state employees who retired and then returned to work. 

This allowed state employees, including members of the PORS like Respondents, 

to retire, collect full retirement benefits, and then return to their former jobs at 

salaries that could have been, but were not required to be, the same as their preretirement salaries. Shortly after the salary cap was eliminated, Chief Stewart 

developed the program in question, informally called the Retirement/Rehire 

program (Program). 

Chief Stewart created the Program, in part, because an existing program, the 

Teacher and Employee Retention Incentive (TERI) program, was not available for 

members of the PORS. Chief Stewart described the Program as benefiting all 

involved—SLED, its employees, and the people of South Carolina. SLED 

benefited because the Program allowed more experienced employees to remain in

service after becoming eligible to retire, working alongside agents with less 

experience. To the extent employees were rehired at reduced salaries, SLED also 

benefited by saving money, thereby allowing the agency to avoid layoffs while 

maintaining services. The citizens and taxpayers of South Carolina benefited from

SLED's ability to maintain a high level of service at a reduced cost. Finally, 

Program participants benefited by drawing retirement benefits while still working 

and earning a salary, albeit a reduced salary.2

To participate in the Program, employees had to retire, submit a request to be 

rehired, and if selected to be rehired, agree to a number of conditions. Chief 

Stewart cautioned employees considering the Program that they should not 

participate unless they were ready to immediately and permanently retire. 

Respondents Phillip Grimsley and Roger Jowers were longtime SLED employees 

who decided to apply to participate in the Program. Between April and August 

2004, Respondents retired, requested to be rehired, and were rehired by SLED. 

Respondents clearly understood the Program's conditions, which included a 

reduction in their salaries and a term of employment not to exceed four years. 

2

 This was no minor benefit. For 2005, the first full year that Respondent Phillip 

Grimsley participated in the Program, his rehire salary and retirement benefits 

totaled $81,476.04. His annual pre-retirement salary was approximately $55,000. 
 

 

                                                            

Respondents signed multiple forms confirming the details of the arrangement were 

just as SLED had asserted. One of those forms, a re-employment orientation form, 

stated that Respondents' salaries were being reduced "to cover the amount it will 

cost SLED to pay the employer portion of retirement." Chief Stewart said that he 

decided to reduce the salaries of Program participants by the amount of the 

employer retirement contribution to provide some degree of savings to taxpayers 

from rehiring retired agents. He also stated that using that percentage established a 

uniform reduction figure for working retirees' salaries. This uniform approach to 

determining Program participants' rehire salaries lessened the potential for 

complaints from the rehired agents and simplified the Program's administration.

After participating in the Program for the agreed-upon four years, Respondents 

received letters in 2008 thanking them for their service and informing them that 

their employment would be ending. During their service as rehired agents, 

Respondents never complained about their salaries or the issue of the employer 

retirement contribution. 

A few months later, in December 2008, Respondents filed suit seeking recovery 

for alleged statutory and constitutional violations. Respondents' statutory claims

were premised on alleged violations of section 9-11-90(4)(b) of the South Carolina 

Code, which requires employers, such as SLED, to "pay to the [retirement] system 

the employer contribution for active members prescribed by law with respect to 

any retired member engaged to perform services for the employer, regardless of 

whether the retired member is a full-time or part-time employee or a temporary or 

permanent employee." S.C. Code Ann. § 9-11-90(4)(b) (Supp. 2014). 

As noted, the trial court granted the State's motion to dismiss as to all of 

Respondents' claims. On appeal, we reversed based on the standard of review; 

accepting as true the allegation that SLED rehired Respondents at their former 

salaries and then deducted the employer retirement contribution from those 

salaries, Respondents had pled a viable claim. Grimsley I, 396 S.C. at 283–86, 721 

S.E.2d at 427–28. After this Court issued its decision in Grimsley I and the parties 

engaged in discovery, the parties filed cross-motions for summary judgment. It is 

the trial court's ruling on those motions that led to the current appeal.3

In their motion, Respondents sought summary judgment on the ground that the 

Program required Respondents to pay the employer's retirement contribution to the 

3

 By the time the trial court ruled on the cross-motions for summary judgment, the 

State had been dismissed as a party, without objection. 
 

                                                            

state retirement system, in violation of section 9-11-90, the constitutional 

prohibition against takings, and constitutional due process requirements. 

Respondents argued that SLED violated the plain language of section 9-11-90, 

which requires employers to pay retirement contributions for working retirees in 

the same manner as non-retired employees, by deducting the employer contribution 

from their salaries.4

 Respondents' constitutional claims relied in part on this 

Court's decision in Grimsley I, in which we held Respondents had a cognizable 

property interest in their salaries, unreduced by any amount required to be paid by 

their employer. See Grimsley I, 396 S.C. at 284–85, 721 S.E.2d at 427–28 

(concluding that Respondents' Complaint alleged interference with a property 

interest rooted in state law and was sufficient to maintain a takings claim). 

In support of its motion for summary judgment, SLED relied on the facts as 

revealed in discovery. More to the point, SLED contended it had conclusively 

established that the required employer retirement contribution was never deducted 

from Respondents' salaries but was, in fact, always paid by SLED. SLED further 

noted that Respondents retired unconditionally and agreed to be rehired at a 

reduced salary, and an employee who retires has no unconditional right to be 

rehired at all, much less at a particular salary. The trial court agreed, granting 

SLED's motion for summary judgment and denying Respondents' motion. 

On appeal, the court of appeals reversed, finding there was a genuine issue of 

material fact as to whether SLED rehired Respondents at their pre-retirement 

salaries and whether SLED deducted the employer contribution to the retirement 

system from those salaries. This Court granted SLED's petition for a writ of 

certiorari to review the court of appeals' decision. 

4

 Respondents also claimed that SLED misappropriated funds that were earmarked 

to pay employees' salaries. See S.C. Code Ann § 11-9-10 (2011) ("It shall be 

unlawful for any monies to be expended for any purpose or activity except that for 

which it is specifically appropriated . . . ."). Respondents argued that because the 

General Assembly appropriated funds to SLED that would allow SLED to pay the 

retired agents' pre-retirement salaries, SLED violated section 11-9-10 by paying 

Respondents the lower, post-retirement salaries. Respondents misapprehend the 

budgeting and appropriations process. The total amount appropriated to a state 

agency for a class of employees' salaries in no manner determines an individual 

employee's salary. Moreover, as is explained more fully below, the record 

establishes that SLED paid the employer contribution to the retirement system as 

required.
 

 

 

 

 II. 

SLED argues the court of appeals erred in reversing the trial court's grant of 

summary judgment in its favor because the undisputed facts establish that 

Respondents were rehired at new salaries and no employer retirement contribution 

was deducted from those salaries; therefore, SLED contends, it is entitled to a 

judgment as a matter of law. We agree.

A. 

"An appellate court reviews the granting of summary judgment under the same

standard applied by the trial court . . . ." Quail Hill, L.L.C. v. Cnty. of Richland, 

387 S.C. 223, 235, 692 S.E.2d 499, 505 (2010) (citing Brockbank v. Best Capital 

Corp., 341 S.C. 372, 379, 534 S.E.2d 688, 692 (2000)). "[A] trial court may grant 

a motion for summary judgment 'if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law.'" Id. at 234, 692 S.E.2d at 505 (quoting 

Rule 56(c), SCRCP). "'In determining whether any triable issue of fact exists, the 

evidence and all inferences which can reasonably be drawn therefrom must be 

viewed in the light most favorable to the nonmoving party.'" Id. at 235, 692 S.E.2d 

at 505 (emphasis added) (quoting Pye v. Estate of Fox, 369 S.C. 555, 563, 633 

S.E.2d 505, 509 (2006)). Even though courts are required to view the facts in the 

light most favorable to the nonmoving party, to survive a motion for summary 

judgment, "it is not sufficient for a party to create an inference that is not 

reasonable or an issue of fact that is not genuine." Town of Hollywood v. Floyd, 

403 S.C. 466, 477, 744 S.E.2d 161, 166 (2013) (citing Evans v. Stewart, 370 S.C. 

522, 526, 636 S.E.2d 632, 635 (Ct. App. 2006)). 

B. 

Following remand from this Court in Grimsley I, the parties engaged in discovery 

which revealed Respondents were rehired with new, reduced salaries and were 

never responsible for paying the employer retirement contribution. To the 

contrary, the evidence showed SLED paid the required employer retirement 

contribution at all times. 

On May 20, 2004, Respondent Grimsley sent a letter to Chief Stewart expressing 

his intention to retire on June 30 of that year and acknowledging that he would 

have to request to be rehired. That June, Grimsley formally requested to be 
 

rehired, agreeing to a salary "13.6% less than [his] previous base salary." In July, 

SLED agreed to rehire Grimsley based on Grimsley's written acceptance of a 

salary equal to his "previous base salary less 13.6%." Respondent Jowers signed 

forms that, while containing different dates and amounts, were identical in all 

relevant respects. 

Deposition testimony and affidavits from SLED employees confirm that 

Respondents received exactly what they bargained for. Lynn Hutto, the director of 

human resources at SLED at the time, testified that Respondents and other 

Program participants were "rehired . . . at a new salary." Chief Stewart avowed 

that, although "[Respondents'] new salaries upon rehire were in fact 13.6% lower 

than their pre-retirement salaries, . . . the employer contribution has never been 

deducted from their paychecks." He further explained that "there is no such thing 

as a payroll deduction for the employer contribution to the PORS, because the 

employer contribution is paid from the amount appropriated to the agency for 

benefits funding, and not from the amount appropriated and used for employees' 

salaries." The record fully confirms this assertion. Teresa Kitchens, Director of 

Human Resources at SLED, stated that each employee's pay stub has a block to 

show the employee's retirement contribution, but does not have a block to show the 

employer's retirement contribution "because the employer contribution is never 

deducted from the gross salary of the employee[]." In fact, Jowers's first pay stub 

after being rehired showed that no funds were deducted under the "retirement" 

category, indicating that, at the time, not even an employee retirement contribution 

was deducted from the salaries of working retirees like Respondents. Finally, 

Donald Royal, Director of Administration at SLED, confirmed that the employer's 

retirement contribution "is not included within the salary of the employee, and 

therefore is not deducted from the salary of the employee." The contribution is 

"completely separate from, and in addition to, the amount of the employee's 

salary." Again, the record bears out SLED's contention that it paid the employer's 

contribution to the retirement system, as the evidence demonstrates that SLED 

transferred the employer's retirement contribution periodically, out of funds 

appropriated to pay for employees' fringe benefits, "in an amount equal to the 

appropriate percentage . . . of the total salary amount actually paid." 

C. 

Citing an isolated phrase in one of many forms signed by Respondents—"[y]ou 

will have a reduction of 13.6% in your salary to cover the amount it will cost 

SLED to pay the employer portion of retirement"—the court of appeals concluded 

that "a reasonable jury could find SLED agreed to pay each rehired employee the 
 

 

 

same salary it paid before retirement, and the percentage reduction represents an 

illegal requirement that the employee pay the retirement contribution the employer 

is required to pay under subsection 9-11-90(4)(b)." Grimsley II, 408 S.C. at 39–40, 

757 S.E.2d at 543. Instead of viewing the entirety of the record, the court of 

appeals cherry-picked a single sentence from a single form, and did so out of 

context. The court of appeals elevated what is, at best, a metaphysical doubt into a 

genuine issue of material fact. See Russell v. Wachovia Bank, N.A., 353 S.C. 208, 

220, 578 S.E.2d 329, 335 (2003) ("When opposing a summary judgment motion, 

the nonmoving party must do more than 'simply show that there is a metaphysical 

doubt as to the material facts but must come forward with specific facts showing 

that there is a genuine issue for trial.'" (quoting Baughman v. Am. Tel. & Tel. Co., 

306 S.C. 101, 115, 410 S.E.2d 537, 545 (1991)) (internal quotation marks 

omitted)). When properly viewed in the context of the parties' discussion and 

agreement about what Respondents' salaries were to be upon returning to

employment, the form is consistent with the other evidence showing that 

Respondents retired unconditionally and were rehired at new salaries. 

The trial court therefore correctly found Respondents' claims had no basis in fact as 

Respondents were unable to produce any evidence that they were rehired at their 

previous salaries or that the employer retirement contribution was ever deducted 

from their pay. As the evidence leaves no doubt that SLED paid the employer 

retirement contribution at all times, Respondents' claims fail. 

III. 

We reverse the court of appeals and reinstate the trial court's entry of judgment for 

SLED. 

REVERSED. 

TOAL, C.J., BEATTY, HEARN, JJ., and Acting Justice James E. Moore, 

concur.