Daniel v. South Carolina Department of Health and Environmental Control

Filing 39

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION adopting 32 Report and Recommendation, granting 26 Motion for Summary Judgment. Signed by Honorable Cameron McGowan Currie on 6/11/2014. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Harvey S. Daniel,

)
)
Plaintiff,
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v.
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South Carolina Department of Health
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and Environmental Control,
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Defendant.
)
____________________________________)

C/A No. 3:12-2981-CMC-SVH

OPINION AND ORDER

Through this action, Plaintiff Harvey S. Daniel (“Daniel”) seeks recovery from his employer,
South Carolina Department of Health and Environmental Control (“DHEC”), for alleged
discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
(“Title VII”). Specifically, Daniel alleges that DHEC (1) engaged in race-based discrimination when
it failed to promote him to a Program Manager I position, (2) retaliated against him after he indicated
he would challenge the failure to promote through DHEC’s Equal Employment Opportunity
(“EEO”) office, and (3) engaged in a pattern and practice of discrimination or allowed a racially
hostile work environment to exist or both.1
The matter is before the court on DHEC’s motion for summary judgment. ECF No. 26. For
reasons set forth below, DHEC’s motion for summary judgment is granted.

1

Daniel’s complaint does not assert separate causes of action. It does, however, include
allegations which suggest four potentially distinct violations of Title VII. These allegations are
summarized as follows: “In addition to Defendant’s treatment of Plaintiff by denying him
promotional opportunities and counseling him and reprimanding him for exercising his rights, and
Defendant’s pattern and practice of discriminating against minorities, Plaintiff has been subjected
to a racially hostile work environment.” Compl. at ¶ 14, ECF No. 1. For ease of reference, the court
refers to these allegations in the remainder of this order as asserting separate claims.

PROCEDURAL BACKGROUND
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(g), D.S.C., this
matter was referred to United States Magistrate Judge Shiva V. Hodges for pre-trial proceedings and
a Report and Recommendation (“Report”). On March 28, 2014, the Magistrate Judge issued a
Report recommending that DHEC’s motion for summary judgment be granted as to all claims.
Report, ECF No. 32. The Magistrate Judge advised the parties of the procedures and requirements
for filing objections to the Report and the serious consequences if they failed to do so.
Daniel filed a timely objection on May 13, 2014, arguing that summary judgment should be
denied as to his claims for discriminatory failure to promote and retaliation. ECF No. 35. Daniel
did not object to the recommendation that summary judgment be granted as to his claim(s) for
pattern and practice of discrimination and hostile work environment. DHEC responded on May 14,
2014, arguing that the court should adopt the Report in full and grant summary judgment on all
claims. ECF No. 36.
STANDARD
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility for making a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Magistrate Judge’s Report and Recommendation to which a
specific objection is made. The court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b). In the absence of an objection, the court reviews the Report
and Recommendation only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district court
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need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on
the face of the record in order to accept the recommendation”) (citation omitted).
DISCUSSION
I.

Discriminatory Non-Selection for Promotion
Report. The Report assumes without deciding that Daniel has stated a prima facie case in

support of his claim that DHEC engaged in race-based discrimination when it selected Wade
Cantrell (“Cantrell”) rather than Daniel for promotion to the Program Manager I position. ECF No.
32 at 13. The Report, nonetheless, recommends summary judgment be granted because Daniel failed
to raise a genuine issue of material fact as to DHEC’s proffered legitimate, non-discriminatory
reason for the selection of Cantrell over Daniel. Id. at 13-18.
As explained in the Report, Daniel was one of twelve applicants selected for an interview.
Report at 4-5. The interviews were conducted by a panel of three Caucasian supervisory employees:
Heather Preston (Daniel’s supervisor); Anne Marie Johnson, and Chuck Hightower. Id. Each panel
member independently scored these twelve applicants based on criteria including the applicants’
answers to predetermined interview questions. Id. Before the interviews, the questions were
reviewed, edited and approved by DHEC’s human resources director. Id.
Daniel’s overall ranking based on these scores was seventh out of twelve. Johnson gave him
the lowest ranking (tenth), Hightower the highest (sixth), and Preston a score in between (eighth).
Id. None of the interviewers ranked Daniel in the top three, and only the top three (all of whom were
Caucasian) were invited back for a second interview. Id. Cantrell was ultimately selected for the
Program Manager I position from among these top three applicants. Id.

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Objection. Daniel argues that the Report improperly “disregarded evidence” that favored
a finding of pretext. ECF No. 35 at 3. With limited exceptions, Daniel’s challenge is to the Report’s
treatment of the facts rather than any misstatement or omission of relevant evidence.
For example, Daniel concedes that the Report acknowledges that he had more years of
experience with DHEC than the person selected for promotion, including eight months in the specific
department in which the Program Manager I position was available. Id.2 Daniel suggests that this
evidence, coupled with evidence that he did “very good work” in the specific department, is
sufficient to show that he was objectively more qualified for the position than the person selected.3
Daniel also challenges the Report’s conclusion that there was an absence of evidence that
Johnson and Hightower “scored [Daniel] poorly in the interview because of his race.” Id. at 4.
Daniel suggests such evidence exists because Johnson and Hightower were subordinates of Preston,
who served as the third member of the panel and as to whom Daniel has proffered evidence of
animus. Id. n.1.4 Daniel implies that Hightower and Johnson were or could have been influenced
2

As noted in the Report, Cantrell had a masters degree and thirteen years of experience at
DHEC. Report at 14. Daniel also had a masters degree, but a total of twenty-four years of
experience.
3

The Report quotes Preston’s testimony that Daniel generally “did very meticulous work
and very good work” in her division. Report at 3. Daniel, therefore, appears to be making a
distinction between Preston’s view of his work in the larger division (addressed in the Report) and
his work in the specific department in which the Program Manager I position was available (arguably
not specifically addressed, though the Report does not purport to rely on any such distinction).
4

As the Report notes, Daniel testified that he believed Preston viewed him negatively and
treated him adversely because of several complaints Daniel had previously made to Preston
regarding what he viewed as her unethical work practices. Report at 3, 6, ECF No. 32. This source
of animus (which falls outside the protections of Title VII) is also referenced in Daniel’s complaint
to the South Carolina Human Affairs Commission (“SCHAC”). Id. at 6-7. For purposes of this
order, the court presumes that Daniel has proffered evidence of race-based animus on Preston’s part.
The court further notes that Daniel need not proffer direct evidence of racial animus given his
reliance on the burden shifting framework derived from McDonnel Douglas Corp. v. Green, 411
U.S. 792 (1973).
4

by Preston’s animus towards Daniel because “sometimes you strive to please your boss.” Id.
(quoting his own deposition testimony). In his final argument as to record evidence, Daniel contends
that the Report “ignored circumstantial evidence of discrimination” when it “discounted the fact that
neither Preston nor the interview panel discussed DHEC’s affirmative action policy.” Id. at 5.
Ultimately, Daniel argues that he has raised a genuine issue of material fact whether he was
objectively more qualified for the position than Cantrell because Daniel had (1) nine more years of
experience with DHEC than Cantrell, (2) eight months of experience in the specific section in which
the position was open, (3) a supervisor’s determination that his work in this section was “very good,”
and (4) relevant experience coordinating state-wide activities. Daniel further argues that raising a
genuine issue of material fact as to whether he was objectively more qualified for the position, in
turn, presents a genuine issue of material fact whether DHEC’s proffered legitimate basis for
selecting Cantrell (i.e., Cantrell’s substantially higher ranking by the panel) was pretextual, thus
allowing an inference of race-based discrimination. Finally, Daniel argues that evidence of the
composition of the interview panel as inconsistent with DHEC’s affirmative action policy (which
encourages diverse panels) and the fact panel members did not discuss the affirmative action policy
with the human resources officer or EEO office are evidence that the reasons given for the hiring
were pretextual.
Discussion. Daniel’s first argument fails because it rests on a presumption that it is for the
finder of fact, rather than the employer, to decide which qualifications are most important. As
explained in the Report, this approach would impermissibly place the court in the role of super
personnel department. Report at 14 (discussing, e.g., Anderson v. Westinghouse Savannah River
Co., 406 F.3d 248, 272 (4th Cir. 2005).

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As noted in the Report, DHEC selected twelve applicants to interview for the Program
Manager I position. The interviews were conducted using a number of predetermined questions
approved by DHEC’s human resources department. The applicants were scored independently by
three panel members based, in part, on their answers to interview questions. Daniel received an
overall ranking of seventh out of twelve. His highest ranking by any panel member was sixth. Only
the top three applicants were given second interviews and Cantrell was selected for the Program
Manager I position from the top three applicants.
Daniel has proffered no evidence that the questions themselves were improper or based on
impermissible criteria. Daniel has, likewise, presented no evidence that the panel members’ scoring
was based on anything other than their honest and unbiased evaluation of all candidates’
qualifications and interview responses. At most, Daniel suggests a basis on which one could
speculate that (1) Preston was biased against him; (2) that bias may have been due, at least in part,
to Daniel’s race, and (3) the other two panel members could have been influenced by Preston’s bias.5
This is too speculative a basis to raise a genuine issue of material fact as to pretext.
Daniel’s arguments relating to the composition of the panel and its failure to consider
DHEC’s affirmative action policy also fail to raise a genuine issue of material fact as to pretext. As
to these arguments, the court adopts the Report without further discussion. See Report at 16 (noting,
inter alia, that Daniel had not identified any African-American employee who might reasonably have

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For purposes of this order, the court assumes not only that Preston was biased against
Daniel, but that the bias had some racial component. As explained above, however, Daniel’s
primary evidence of bias relates to complaints he made to or about Preston regarding the legality of
certain of her decisions and directives. Bias based on such complaints (which were unrelated to any
Title VII protected class) would not be actionable under Title VII.
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been selected to serve on the panel and had proffered no evidence that the racial composition of the
panel influenced the decision to hire Cantrell).
II.

Retaliation
Report. The Report recommends that summary judgment be granted on Daniel’s retaliation

claim for two reasons. First, it “recommends a finding that the Supervisory Counseling would not
have deterred a reasonable employee from challenging discriminatory action and does not constitute
an adverse employment action.” Report at 20 (noting the prima facie case fails absent proof of an
adverse action).6 Second, the Report notes that DHEC has proffered a legitimate, non-discriminatory
reason for the discipline (Daniel’s behavior on July 25, 2011), which Daniel has failed to
demonstrate was pretextual. Id. at 21-22. The Report further notes that, despite somewhat different
characterizations of Daniel’s behavior at and after the July 25, 2011 meeting, the central facts are
the same: Daniel announced his disagreement with and intent to contest the promotion decision at
a meeting with a number of his co-workers, which had been called to announce the successful
candidate. Daniel also subsequently approached a number of his co-workers to address his pursuit
of the position in what he described as “one-way discussion[s].”
Objection. As to the first point, Daniel argues that the Supervisory Counseling was
sufficiently adverse because it is within DHEC’s progressive discipline policy and “could eventually
become incorporated into [his] personnel file.” ECF No. 35 at 6. Daniel argues that this could have

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Daniel’s retaliation claim is founded on a Supervisory Counseling he was given on the
afternoon of July 25, 2011, and a related Supervisory Counseling Memorandum (“Counseling
Memorandum”), which was made available to him on July 28, 2011. Report at 9-10. The
Counseling Memorandum was kept by his supervisor but was not placed in Daniel’s personnel file.
Id. While a Supervisory Counseling or Counseling Memorandum may be a first step to further
discipline, Daniel has not pointed to any evidence of further discipline or other adverse action
subsequently taken against him. See id.
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a sufficient “chilling effect” to meet the relevant standard: that the action be “harmful to the point
that [it] could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Id. at 5 (quoting Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 57
(2006)). Daniel also notes that, although he continued to communicate with DHEC’s EEO office
following the Supervisory Counseling, he “felt concerns” about doing so and “attempted to
ameliorate the counseling by submitting responsive emails to Heather Preston in efforts to diminish
the impact of the employment action.” Id. at 7.
Regarding pretext, Daniel points to various differences between his characterization of his
behavior at and after the July 25, 2011 meeting and DHEC’s (and Preston’s) characterization of the
same events. Daniel argues that a fact finder who accepted his version of events could infer from
the differences that his supervisor had not only overstated the inappropriateness of his behavior at
and after the meeting but was, in fact, acting in retaliation for his stated intent to challenge his nonpromotion (presumably on grounds protected under Title VII).
Discussion. The court is not persuaded by Daniel’s arguments on either point. While the
Supervisory Counseling and Counseling Memorandum constitute a step in DHEC’s progressive
discipline scheme, they are but a first and minor step. Beyond the discomfort inherent in receiving
corrective counseling, there is no other adverse consequence that necessarily follows.

No

documentation is placed in the employee’s file unless and until something happens warranting
further correction. In Daniel’s case, nothing further has happened.
Under these circumstances, the court agrees with the Report that the evidence is insufficient
to support a finding that the Supervisory Counseling and Counseling Memorandum were “harmful
to the point that [they] could well dissuade a reasonable worker from making or supporting a charge

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of discrimination.” Id. at 5 (quoting Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 57
(2006).
Pretext. The court also finds the evidence insufficient to establish pretext as to the proffered
legitimate reason for the Supervisory Counseling and related Counseling Memorandum. Daniel
relies on distinctions between his description of his behavior during and following the July 25, 2011
meeting and Preston’s description of events. He does not, however, point to any evidence that the
counseling was directed to or motivated by any other events. At best, the evidence cited by Daniel
suggests Preston may have overstated the degree to which Daniel’s actions in and after the July 25,
2011 meeting were disruptive. This evidence would not, however, support a finding that the
counseling was motivated by or directed to any other behavior, most critically Daniel’s decision to
challenge his non-selection through a complaint to DHEC’s EEO office. Further, by his own
testimony, Daniel not only continued to pursue his challenge to the promotion decision through the
EEO office but also continued to discuss the situation with coworkers (albeit after work or during
lunch rather than during the normal work day), without further criticism or disciplinary action.
Under these circumstances and for reasons explained in the Report, the evidence is insufficient to
raise a genuine issue of material fact whether DHEC’s stated reason for the Supervisory Counseling
and Counseling Memorandum was pretextual.
III.

Hostile Environment or Pattern and Practice Claim
Daniel has not objected to the recommendation that summary judgment be granted on any

claim for hostile environment or pattern and practice of discrimination that might be alleged in his
complaint. The court, therefore, reviews this recommendation for clear error. Finding none, the

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court adopts the Report and grants summary judgment to the extent any such claim is advanced in
the complaint.
CONCLUSION
For the reasons set forth above, the court adopts the Report and Recommendation and grants
summary judgment to DHEC as to any and all claims asserted in Daniel’s complaint.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
June 11, 2014

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