David Christian, III v. South Carolina Dept Labor
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:12-cv-01382-TLW. Copies to all parties and the district court/agency. [999838764]. [14-2168]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2168
DAVID CHRISTIAN, III,
Plaintiff – Appellant,
v.
SOUTH CAROLINA DEPARTMENT OF LABOR LICENSING AND REGULATION;
CATHERINE TEMPLETON; SAMUEL WILKINS; WILLIAM COOK, a/k/a
Ron; CHARLES IDO; HOLBROOK ALVEY, in their official and
individual capacities, a/k/a Ryan,
Defendants – Appellees,
and
LYNN RIVERS,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Terry L. Wooten, Chief District
Judge. (3:12-cv-01382-TLW)
Argued:
January 28, 2016
Decided:
June 1, 2016
Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished opinion.
Senior Judge Davis wrote the
opinion, in which Judge Gregory and Judge Harris joined.
ARGUED: Julius Wistar Babb, IV, J. LEWIS CROMER & ASSOCIATES,
LLC, Columbia, South Carolina, for Appellant.
Jonathan Pharr
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Pearson, FISHER & PHILLIPS, LLP, Columbia, South Carolina; Molly
H. Craig, HOOD LAW FIRM, Charleston, South Carolina, for
Appellees. ON BRIEF: James Lewis Mann Cromer, J. LEWIS CROMER &
ASSOCIATES, LLC, Columbia, South Carolina, for Appellant.
Kenneth P. Woodington, Daniel C. Plyler, DAVIDSON & LINDEMANN,
P.A., Columbia, South Carolina, for Appellee Alvey.
Eugene H.
Matthews, RICHARDSON PLOWDEN & ROBINSON, P.A., Columbia, South
Carolina, for Appellee Wilkins. Damon C. Wlodarczyk, RILEY POPE
& LANEY, LLC, Columbia, South Carolina, for Appellee Cook.
Brian Edward Johnson, HOOD LAW FIRM, Charleston, South Carolina,
for Appellee Templeton.
Katherine Anne Phillips, MALONE,
THOMPSON, SUMMERS & OTT, LLC, Columbia, South Carolina, for
Appellee Ido.
Unpublished opinions are not binding precedent in this circuit.
2
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DAVIS, Senior Circuit Judge:
David Christian, III appeals the district court’s grant of
summary
judgment
Department
several
of
to
his
Labor,
former
employer,
Licensing,
individually
named
and
the
South
Regulation
defendants,
on
Carolina
(“LLR”),
and
claims
of
his
discrimination based on race in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (2012), and his
claim of civil conspiracy under South Carolina law.
For the
reasons set forth below, we affirm.
I.
A.
Christian,
who
is
African-American,
worked
for
LLR
from
2003 until his resignation in 2012 following the events at issue
in this appeal.
and
Christian worked in the agency’s Professional
Occupational
Licensing
division,
which
provides
administrative services for forty professional and occupational
boards
and
commissions
responsible
for
regulating
their
respective professions.
When
Christian
began
his
tenure
at
LLR,
each
of
these
boards issued its own licenses with administrative support from
LLR
personnel
dedicated
to
each
board.
In
2008,
Adrienne
Youmans, then-director of LLR, created the Office of Licensure
and Compliance (“OLC”) within the Professional and Occupational
Licensing
division
in
order
to
3
consolidate
licensing
staff
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working throughout the agency into one subdivision.
charged
with
issuance
of
occupational
performing
licenses,
boards
licensing
for
most
administered
services,
of
by
including
the
professional
the
LLR.
OLC was
and
Youmans
appointed
Christian to lead the newly formed subdivision and promoted him
to the position of Assistant Deputy Director.
Many
of
the
boards
and
a
number
dissatisfied with these changes.
of
LLR
personnel
were
Shortly after the creation of
OLC, the Board of Pharmacy sought and received an opinion from
the
South
Carolina
Attorney
General
concluding
that
LLR
personnel did not have the authority to issue licenses for the
practice of pharmacy.
And in late 2009, two OLC employees wrote
an anonymous letter to members of the South Carolina General
Assembly outlining a number of problems they perceived within
OLC and sharply criticizing Christian.
The
anonymous
letter
set
off
something
of
a
political
kerfuffle and, specifically, prompted two hearings by the South
Carolina
Sandifer,
House
III,
subcommittee
of
Representatives.
who
with
chaired
oversight
the
of
Representative
House
LLR,
of
William
Representatives
testified
during
his
deposition for this case that a number of his colleagues had
approached him about the concerns outlined in the letter.
Other
representatives had also reported a high number of constituent
complaints about the agency to Sandifer.
4
Youmans testified at
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one of the House hearings.
this
case,
she
stated
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In her subsequent deposition for
that,
during
the
hearing,
Sandifer
expressed numerous concerns about Christian in particular, which
she
found
to
be
unusual.
Youmans
also
testified
that
she
believed the anonymous letter was “full of lies, rumors, and
J.A. 1202. 1
innuendos.”
In June 2010, twenty-seven legislators
requested that the Legislative Audit Council conduct a review of
OLC.
In November 2010, Nikki Haley was elected governor of South
Carolina.
as
She nominated Catherine Templeton to replace Youmans
Director
Templeton’s
of
LLR.
nomination,
At
the
Haley
press
conference
referred
to
announcing
“unacceptable”
licensure wait times and characterized Templeton as someone who
could fix a struggling agency.
J.A. 970–71.
Templeton herself
alluded to complaints about licensing and suggested that she
would improve efficiency by returning licensing functions to the
boards.
During
Templeton’s
confirmation
hearing,
legislators
emphasized that Templeton needed to repair the agency.
Prior to
her confirmation, Templeton spoke to members of the Boards of
Accountancy and Medical Examiners and received a letter from the
1
Citations to the J.A. refer
submitted by the parties in this case.
5
to
the
Joint
Appendix
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Board
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of
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Pharmacy
and
complaints with OLC.
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several
others
detailing
a
number
of
Templeton introduced herself to the chairs
of the legislative subcommittees with oversight of LLR, and she
met with the state’s Budget and Control Board.
She also met
with Youmans and two LLR employees, Rion Alvey and Jim Knight.
After her confirmation as director of LLR, Templeton made a
number
of
staffing
changes.
In
addition
to
OLC,
the
Professional and Occupational Licensing division had two other
subdivisions—the
Office
of
Board
Services,
led
by
Assistant
Deputy Director Randy Bryant, and the Office of Investigations
and Enforcement, led by Assistant Deputy Director Rion Alvey.
Templeton promoted Alvey to Deputy Director of LLR and asked
Bryant
to
retire,
which
he
subsequently
did.
She
appointed
Charles Ido to serve as interim Assistant Deputy Director of the
Office of Board Services and Mark Dorman to serve as the interim
Assistant Deputy Director of the Office of Investigations and
Enforcement.
Templeton also embarked on a significant reorganization of
the
agency.
From
January
to
August
2011,
LLR
executed
a
reduction-in-force (“RIF”) of six different areas of the agency,
resulting in the termination of sixty-nine full-time, permanent
employees.
As part of this restructuring, Templeton announced
that licensing functions would be returned to the boards and OLC
would
be
dismantled
through
a
RIF
6
of
all
of
its
employees,
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including Christian.
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The RIF of OLC affected forty-eight full-
time, permanent employees.
Of the affected employees, thirty-
two
twelve
were
African-American,
were
white,
and
four
identified as members of “other” races or ethnicities.
were
Most of
these employees, including Christian, were offered positions as
administrative
assistants
performing
licensing
or
compliance
functions for the various boards.
After
three
the
RIF
available
Office
of
Board
was
announced,
Christian
interviewed
for
positions:
Assistant
Deputy
Director
of
the
Services,
Assistant
Deputy
Director
of
the
Office of Investigations and Enforcement, and a newly created
Assistant Deputy Director position in charge of inspectors in
LLR’s Drug Diversion program.
Christian was interviewed for all
three positions at the same time.
Rogers,
an
African-American
Alvey, a white male, and Lynn
female,
conducted
the
interviews.
They ultimately hired Ido and Dorman, the interim directors of
the Office of Board Services and the Office of Investigations
and Enforcement, as the permanent heads of those subdivisions.
For the newly created position in the Drug Diversion program,
they
chose
performing
Ron
the
Cook,
duties
an
now
Director of that program.
LLR
employee
assigned
to
who
the
had
already
Assistant
been
Deputy
Ido, Dorman, and Cook each had the
highest score for their respective positions according to LLR’s
interview criteria; Christian had the second-highest.
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Christian did not apply for any other positions within LLR,
and
eventually
accepted
the
administrative
offered to him following the RIF.
assistant
position
As Assistant Deputy Director
of OLC, Christian had been classified as a “Band 8” employee
with
an
annual
salary
of
$78,775.
As
an
administrative
assistant, his classification fell to “Band 4” and his annual
salary was reduced to $31,843.
He resigned from LLR in January
2012.
B.
Christian
alleging
filed
violations
a
of
multi-count
complaint
Title
and
VII,
against
against
LLR
Catherine
Templeton, Samuel Wilkins, Lynn Rivers, Ron Cook, Charles Ido,
and
Rion
Alvey
(collectively,
the
“individual
defendants”),
asserting claims under 42 U.S.C. §§ 1983, 1985 (2012) and under
South Carolina law for civil conspiracy.
Following discovery,
the defendants each filed a motion for summary judgment.
The
motions were referred to a Magistrate Judge, who issued a Report
and
Recommendation
judgment
to
the
recommending
defendants
that
on
the
all
court
claims.
grant
summary
Overruling
Christian’s timely objections, the district court adopted the
Report and Recommendation in its entirety.
appealed.
II.
8
Christian timely
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review
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a
district
judgment de novo.
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court’s
decision
to
grant
summary
Jacobs v. N.C. Admin. Office of the Courts,
780 F.3d 562, 565 n.1 (4th Cir. 2015).
“A district court ‘shall
grant summary judgment if the movant shows that there is no
genuine
dispute
as
to
any
material
fact
entitled to judgment as a matter of law.’”
Fed. R. Civ. P. 56(a)).
and
the
movant
is
Id. at 568 (quoting
In determining whether a genuine issue
of material fact exists, we “view the facts and all justifiable
inferences
arising
therefrom
in
to . . . the nonmoving party.”
quotation marks omitted).
allegations
do
not
the
light
most
favorable
Id. at 565 n.1 (citation and
However, “[c]onclusory or speculative
suffice,
nor
does
a
mere
scintilla
evidence in support of [the nonmoving party’s] case.”
of
Thompson
v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)
(citation and quotation marks omitted).
A.
Christian argues that the district court erred in granting
summary judgment to LLR on his Title VII claims.
We disagree.
Upon careful review of the record in this case, we conclude that
summary judgment in favor of LLR on Christian’s termination and
non-selection claims is appropriate. 2
2
Christian makes passing reference to his hostile work
environment, constructive discharge, and disparate impact claims
in his opening brief. He fails to include any argument on these
(Continued)
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A plaintiff may avoid summary judgment on a discrimination
claim
under
“presenting
Title
direct
VII
or
through
two
circumstantial
avenues
of
evidence
proof:
that
by
raises
a
genuine issue of material fact as to whether an impermissible
factor such as race motivated the employer’s adverse employment
decision,”
or
by
shifting framework.
416
F.3d
310,
318
relying
on
the
McDonnell
Douglas 3
burden-
Diamond v. Colonial Life & Acc. Ins. Co.,
(4th
Cir.
2005)
(citing
Hill
v.
Lockheed
Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004),
recognized as abrogated on other grounds, Foster v. Univ. of
Md.-E.
Shore,
787
F.3d
243
(4th
Cir.
2015)).
Under
the
McDonnell Douglas framework, a plaintiff must first establish a
prima facie case.
shifts
to
the
Hill, 354 F.3d at 285.
employer
to
articulate
a
The burden then
legitimate,
non-
discriminatory reason for the adverse employment action taken
against
the
plaintiff.
Id.
Once
the
employer
meets
this
burden, “the McDonnell Douglas framework-with its presumptions
and
burdens-disappear[s],
discrimination vel non.”
and
the
sole
remaining
issue
[is]
Id. (alterations in original) (quoting
claims, however, and has thus waived our review of them.
See
Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653 n.7 (4th Cir.
2006) (citations omitted).
3
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
10
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Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43
(2000)).
The plaintiff must present evidence that “demonstrates
that the employer’s proffered permissible reason for taking an
adverse
employment
discrimination.”
action
is
actually
Diamond, 416 F.3d at 318.
a
pretext
for
Christian proceeded
under both of these methods in opposing summary judgment before
the district court.
Christian argues that the district court failed to view his
evidence of discrimination in its totality, or as a “convincing
‘mosaic’ of circumstantial evidence such that a reasonable jury
could
infer
discriminatory
intent.”
Br.
Pl.-Appellant
23–24
(citing Cason v. S.C. State Ports Auth., No. 2:11-cv-2241-RMG,
2014 WL 588065, at *4 (D.S.C. Feb. 14, 2014)).
He refers to the
Seventh Circuit’s “convincing mosaic” approach, under which a
plaintiff proceeding by direct and indirect evidence may prevail
by presenting a “‘convincing mosaic’ of circumstantial evidence”
that would permit an inference of discrimination.
v.
Donahoe,
omitted).
667
F.3d
835,
860
(7th
Cir.
See Coleman
2012)
(citation
Christian urges us to view his proffered evidence
through this lens.
This Circuit’s precedent already requires us to consider
evidence of discrimination in the context of the record as a
whole.
See Cook v. CSX Transp. Corp., 988 F.2d 507, 512 (4th
Cir. 1993).
At oral argument, counsel was unable to identify
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any significant difference between our existing precedent and
the “convincing mosaic” approach.
Accordingly, we see no reason
to adopt the formulation that Christian advances here and will
instead
evaluate
the
totality
of
the
evidence
to
determine
whether he has shown that the RIF and his non-selection for the
available management positions were motivated by discriminatory
intent.
1.
Christian has failed to present evidence raising a genuine
issue
of
material
fact
about
whether
race
motivated
LLR’s
decision to eliminate his position as Assistant Deputy Director
of OLC through a RIF.
While he points to substantial amounts of
testimony and documentary evidence that, in his view, support
his claim, none of the evidence he identifies is admissible,
probative evidence of discrimination.
The record is replete with evidence that Templeton, some
LLR
employees,
several
South
Carolina
legislators,
and
the
state’s newly elected governor believed that LLR was failing to
perform its licensing function properly.
LLR has consistently
maintained that it conducted a RIF of OLC to reorganize the
agency’s
licensing
operations
to
address
these
problems.
Christian argues that the creation of OLC improved LLR’s ability
to
timely
issue
licenses
and
that
12
LLR
had
no
evidence
that
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returning licensing functions to the boards was more effective
than retaining OLC.
Christian’s
misplaced.
attack
on
LLR’s
rationale
for
the
RIF
is
The subjective opinions of Christian and other LLR
employees about whether the agency’s reasons for the RIF were
well founded or foolish, without more, are insufficient to raise
an inference of discrimination.
See Dugan v. Albemarle Cty.
Sch. Bd., 293 F.3d 716, 722–23 (4th Cir. 2002) (citing Williams
v. Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir. 1989)).
“[I]t
is not our province to decide whether the reason was wise, fair,
or even correct, ultimately, so long as it truly was the reason
for the plaintiff’s [adverse employment action].”
Id. at 272
(alterations in original) (quoting DeJarnette v. Corning Inc.,
133 F.3d 293, 299 (4th Cir. 1998)).
Based on the record before
us, no reasonable jury could find LLR’s stated reason for the
RIF to be a fabrication to conceal discrimination.
Christian also questions the implementation of the RIF.
disagrees
with
LLR’s
decision
to
retain
the
Office
of
He
Board
Services division, which he contends was led primarily by white
managers.
He also argues that the manner in which LLR executed
the RIF functionally restricted his rights as a state employee
to obtain other positions within LLR.
These complaints simply
reflect Christian’s disagreement with the agency’s decision to
eliminate
OLC
through
a
RIF
of
13
its
employees
and
are
not
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probative
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evidence
discussed.
of
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discrimination
for
the
reasons
just
Christian points to nothing to indicate that LLR’s
implementation of the RIF actually violated its RIF policy, and
even if he did, such evidence, standing alone, is not proof of
discrimination.
Dugan, 293 F.3d at 722 (noting that evidence
that an employer erroneously or even purposely misapplied a RIF
policy does not prove discrimination).
Christian’s other attempts to support his claim that the
RIF was racially motivated also fall flat.
He directs us to
statistics of the racial composition of OLC, which show that the
majority
of
contends
OLC
personnel
that
these
disproportionate
impact
therefore
support
his
were
African-American.
figures
on
claim
illustrate
the
African-American
that
the
Christian
RIF’s
employees
agency’s
decision
and
to
eliminate his position as Assistant Deputy Director of OLC by
conducting
a
RIF
of
the
subdivision
was
discriminatory.
However, he provides no comparison of OLC’s racial composition
to
that
of
the
other
subdivisions
of
the
Division
of
Professional and Occupational Licensing, or to that of the other
twenty-one employees subject to a RIF during the reorganization
of LLR during Templeton’s tenure.
the
figures
discrimination.
Christian
offers
Without context or analysis,
are
not
probative
of
See Henson v. Liggett Grp., Inc., 61 F.3d 270,
276–77 (4th Cir. 1995).
14
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Christian also tries to show that, after the RIF, white OLC
employees
were
treated
more
favorably
than
African-American
employees through preselection of white employees for available
positions.
claim.
He offers no statistical evidence to support this
Instead,
inadmissible
positions
he
following
entirely
regarding
hearsay
relies
how
the
RIF.
on
speculation
LLR
And
as
filled
and
available
Christian
concedes,
preselection, standing alone, is not evidence of discrimination.
Br. Pl.-Appellant 31–32 (citing Blue v. U.S. Dep’t of Army, 914
F.2d 525, 541 (4th Cir. 1990)).
demonstrated
that
white
Christian has not, therefore,
employees
were,
in
fact,
treated
preferentially after the RIF, and, even if LLR had preselected
the
individuals
positions,
their
Christian
identified
preselection,
for
without
their
more,
respective
would
not
be
evidence of LLR’s discriminatory intent.
Finally, Christian points to testimony about employees’ use
of a racial slur and a previous racially charged incident that
occurred at the agency, as well as testimony by other employees
who believed that Christian was treated unfairly because of his
race.
Careful inspection of the record reveals that no witness
testified that he or she had personally heard another employee
use
a
racial
epithet,
only
rumors
to
that
effect.
Rumors
regarding the use of racial slurs by unnamed LLR employees are
not
admissible
evidence,
and
15
the
subjective
beliefs
of
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Christian’s co-workers regarding the RIF of OLC and Christian’s
subsequent
non-selection
for
a
management
position
with
LLR
carry no more weight than Christian’s own bald assertions that
LLR’s
conduct
was
racially
motivated.
See
Tinsley
v.
First
Union Nat’l Bank, 155 F.3d 435, 444 (4th Cir. 1998) (“It is the
perception
question
of
of
the
decision
maker
[discrimination],
which
not
is
the
relevant
opinions
to
of
the
[the
plaintiff’s] co-workers or third parties.”), overruled on other
grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101
(2002).
Christian particularly focuses on the alleged conduct of
Ron
Cook,
Assistant
a
co-worker
Deputy
interviewed.
who
Director
obtained
positions
one
for
of
which
the
available
Christian
also
Christian asserts that Cook circulated a racist
video involving President Obama, told racist jokes, referred to
African
Americans
persuasion,”
and
as
used
“you
a
people”
racial
African-American LLR employee.
or
epithet
“people
in
of
reference
your
to
an
While “[d]erogatory remarks may
in some instances constitute direct evidence of discrimination,”
the
remark
remarks
“cannot
upon
employment
which
decision
[discrimination].’”
be
stray
or
plaintiff
in
isolated
relies
question,
they
and
were
cannot
‘[u]nless
related
be
to
evidence
the
the
of
Brinkley v. Harbour Recreation Club, 180
F.3d 598, 608 (4th Cir. 1999) (alterations in original) (quoting
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McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686 (7th Cir.
1991)), overruled on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003); see also Merritt v. Old Dominion
Freight Line, Inc., 601 F.3d 289, 300 (4th Cir. 2010) (“[I]n the
absence
of
question,
a
clear
the
nexus
materiality
with
of
the
stray
employment
or
decision
in
remarks
is
isolated
substantially reduced.”).
Christian counters that Cook was actually a driving force
behind the RIF, and therefore his racist behavior is evidence of
the discriminatory intent behind it.
Cook
claimed
to
have
influence
with
Christian asserts that
South
Carolina
Governor
Nikki Haley because Cook’s wife cared for the Haley children and
that Cook had a “hit list” of people that he wanted to see
terminated
from
the
agency.
Cook,
however,
had
no
actual
influence over LLR’s decision to eliminate OLC through a RIF of
its employees.
Cook testified that he did not have a friendship
with Governor Haley, had not discussed LLR with her, and had not
had any contact with her or her family since election night.
Templeton testified that she did not consult with Cook on any
personnel
believed
matter.
that
Cook
decisions at LLR.
Christian
had
such
also
an
could
ability
not
to
have
reasonably
dictate
personnel
At the time of the RIF, Christian held a
higher position of authority in LLR than Cook.
Christian also
testified that he did not believe that Cook had any influence
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with the governor until the RIF took place and the individuals
Cook purportedly identified on his “hit list” were terminated.
Because Cook had no influence over LLR’s decision to execute the
RIF, and Christian could not have reasonably believed that he
did, his alleged comments have no nexus with LLR’s challenged
actions and therefore are not relevant to Christian’s claim of
discrimination.
Accordingly, considering Christian’s proffered evidence and
arguments in the context of the record as a whole, we conclude
that he has failed to present direct or circumstantial evidence
that the RIF of all OLC employees that resulted in Christian’s
termination was racially motivated.
conclude
that
Christian,
relying
For the same reasons, we
on
the
same
evidence,
has
failed to demonstrate that LLR’s legitimate, non-discriminatory
reason for the RIF—dissolution of OLC in response to perceived
problems with licensing—was a pretext for discrimination under
the McDonnell Douglas framework. 4
2.
Christian has also failed to present evidence creating a
genuine issue of material fact about whether his non-selection
4
In reaching this conclusion, we assume without deciding
that Christian has established a prima facie case.
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for the three available Assistant Deputy Director positions was
due to race.
“A
plaintiff
alleging
a
failure
to
promote
can
prove
pretext by showing that he was better qualified, or by amassing
circumstantial
evidence
that
otherwise
credibility of the employer’s stated reasons.”
undermines
the
Heiko v. Colombo
Sav. Bank, F.S.B., 434 F.3d 249, 259 (4th Cir. 2006) (citations
omitted).
We “assess relative job qualifications based on the
criteria that the employer has established as relevant to the
position in question.”
Id.
The plaintiff need not have been
the better qualified candidate for the position, but must show
“evidence which indicates that [the employer’s] stated reasons
for promoting [the other candidate] over [the plaintiff] were a
pretext for discrimination.”
Anderson v. Westinghouse Savannah
River Co., 406 F.3d 248, 269 (4th Cir. 2005).
LLR has consistently maintained that the candidates chosen
for
the
positions
at
issue
were
simply
better
their respective positions than Christian.
qualified
for
Christian contends
that a reasonable jury could find that his non-selection was the
product of discrimination because he was interviewed only once
for all three positions, the individuals who were ultimately
selected for those positions were already serving in an interim
capacity
or
otherwise
fulfilling
the
responsibilities
of
the
position, he was scored on only one score sheet for all three
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positions,
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one
interviewer’s
Pg: 20 of 24
score
sheet
indicates
that
the
interviewer changed two of his ratings to give Christian higher
marks, and he had “extensive relevant work experience” for all
three positions.
Even
Br. Pl.-Appellant 48–49.
making
Christian,
all
he
not
has
reasonable
produced
inferences
sufficient
in
favor
evidence
summary judgment on his non-selection claim.
to
of
avoid
As we have already
noted, preselection, standing alone, does not raise an inference
of discrimination.
Neither does the fact that he had only one
interview and score sheet for all three positions, or the fact
that one of his interviewers raised his score two points from
what he had initially marked.
Most
importantly,
individuals
who
were
Christian
selected
positions they were awarded.
of
the
successful
does
were
not
not
argue
qualified
that
the
for
the
A comparison of the qualifications
candidates
with
Christian’s
qualifications
readily yields the conclusion that the candidates chosen for
each of the Assistant Deputy Director positions were extremely
well-qualified for those positions, whereas Christian had less
relevant experience.
Ido, who was awarded the position managing
the Office of Board Services, had twenty-one years of experience
at LLR and had performed well as the interim Assistant Deputy
Director
of
that
subdivision.
Dorman,
who
was
awarded
the
position managing the Office of Investigations and Enforcement,
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had over thirty years of experience at LLR and had acted as the
manager of that subdivision for two years while the Assistant
Deputy Director was on detail.
Cook, who was awarded the newly
created Assistant Deputy Director position of the Drug Diversion
program, had already been successfully managing that program for
two years when the position was created.
In addition, Ido,
Dorman, and Cook all had experience that was directly relevant
to their respective positions prior to assuming those positions
or
the
associated
responsibilities
on
an
interim
basis.
Christian, in comparison, had five years of experience at the
agency and no experience in any of the subdivisions that he
sought to lead.
“[R]elative employee qualifications are widely
recognized as valid, non-discriminatory bases for any adverse
employment decision.”
Evans v. Techs. Applications & Serv. Co.,
80 F.3d 954, 960 (4th Cir. 1996) (citations omitted).
Accordingly,
we
conclude
that
Christian
has
failed
to
present evidence that LLR acted with discriminatory intent when
it awarded the management positions to Ido, Dorman, and Cook
instead
of
him,
or
that
LLR’s
reasons
for
individuals were a pretext for discrimination.
choosing
LLR is entitled
to summary judgment on Christian’s non-selection claim.
B.
21
those
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Christian
should
not
also
have
contends
received
Pg: 22 of 24
that
the
summary
individual
judgment
conspiracy claim under South Carolina law.
defendants
on
his
civil
Again, we disagree.
In order to prevail on a claim of civil conspiracy under
South Carolina law, a plaintiff must prove “(1) the combination
of two or more people, (2) for the purpose of injuring the
plaintiff, (3) which causes special damages.”
Pye v. Estate of
Fox, 633 S.E.2d 505, 511 (S.C. 2006) (citations omitted).
“essential
consideration”
of
a
civil
conspiracy
claim
The
is
“whether the primary purpose or object of the combination is to
injure
the
plaintiff.”
Id.
(citation
omitted).
Christian
failed to identify any evidence creating a genuine dispute of
fact on this element of his civil conspiracy claim.
Christian
relies on the same evidence he cites to support his Title VII
claim.
The evidence is insufficient here to show that LLR’s
stated reasons for the RIF of OLC and Christian’s non-selection
for the Assistant Deputy Director positions were false for the
same reasons discussed above.
By parity of reasoning, a failure
of proof to show racial animus in employment decision-making is
a failure of proof to show that an object of a conspiracy was to
harm a plaintiff by inflicting a race-based job injury.
Christian also points to Templeton’s actions prior to her
confirmation
as
evidence
that
she
alleged
co-
conspirators acted with a primary purpose of harming him.
He
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notes that Youmans testified that Templeton raised the anonymous
letter criticizing Christian’s management of OLC when the two
met just before Templeton’s confirmation, and he argues that
Templeton’s meetings with the governor, Representative Sandifer,
members from the Boards of Accountancy and Medical Examiners,
and various LLR employees prior to her confirmation “show the
motives and personal vendetta Templeton held against Plaintiff”
and evidence her intent to “impair Plaintiff’s employment and
target African-American management of OLC.”
54.
Br. Pl.-Appellant
No reasonable jury could make such an inferential leap
based on the record in this case.
choosing
evidence,
between
conflicting
“[p]ermissible
While a jury is charged with
inferences
inferences
must
from
still
circumstantial
be
within
the
range of reasonable probability, . . . and it is the duty of the
court to withdraw the case from the jury when the necessary
inference is so tenuous that it rests merely upon speculation
and conjecture.”
Sylvia Dev. Corp. v. Calvert Cty., Md., 48
F.3d 810, 818 (4th Cir. 1995).
That an incoming agency director
would learn about complaints concerning the agency and meet with
individuals dissatisfied with that agency’s performance prior to
her confirmation is entirely unremarkable.
The inference that
Christian asks us to draw from these unexceptional facts rests
wholly upon his own speculation and conjecture about the purpose
and result of these meetings.
At summary judgment, that is not
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The individual defendants were thus entitled to summary
judgment on Christian’s civil conspiracy claim.
III.
For the reasons set forth above, we affirm the district
court’s
grant
of
summary
judgment
to
LLR
and
the
individual
defendants.
AFFIRMED
24
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