Scott v. Orangeburg

Filing 42

ORDER RULING ON REPORT AND RECOMMENDATIONS granting 26 Motion for Summary Judgment, filed by County Of Orangeburg, adopting 35 Report and Recommendations. Signed by Honorable Margaret B Seymour on 9/14/09. (asni, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA O R A N G E B U R G DIVISION D e l a n o Scott, ) ) C/A No. 5:07-3571-MBS Plaintiff, ) ) v s. ) ) ORDER C o u n ty of Orangeburg, ) ) D e fe n d a n t . ) ____________________________________) P l a i n t i ff Delano Scott is employed by Defendant County of Orangeburg. Plaintiff, who is b l a c k , brought this action against Defendant on October 30, 2007, alleging that he was not promoted in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. §§ 2 0 0 0 e et seq. Plaintiff alleges causes of action for race discrimination and retaliation. Plaintiff also a s s e r t s a state law claim for breach of contract. T h is matter is before the court on motion for summary judgment filed by Defendant on O c to b e r 31, 2008 (Entry 26). Plaintiff filed a response in opposition to Defendant's motion on D e c e m b e r 1, 2008, to which Defendant filed a reply on December 12, 2008. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the within action was re fe rre d to United States Magistrate Judge Paige J. Gossett for pretrial handling. On July 24, 2009, t h e Magistrate Judge issued a Report and Recommendation. Among other things, the Magistrate J u d g e determined that Plaintiff presented no evidence that Defendant's reasons for declining to p ro m o te him were pretextual. The Magistrate Judge further determined that Plaintiff's breach of c o n tra c t claim failed as a matter of law. The Magistrate Judge therefore recommended that

D e fe n d a n t's motion for summary judgment be granted. Plaintiff filed objections to the Report and R e co m m e n d a tio n on August 10, 2009, to which Defendant responded on August 24, 2009. T h e Magistrate Judge makes only a recommendation to this court. The recommendation has n o presumptive weight. The responsibility for making a final determination remains with this court. M a th e w s v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo d e t e r m i n a t io n of any portions of the Report and Recommendation to which a specific objection is m a d e . The court may accept, reject, or modify, in whole or in part, the recommendation made by the M a gis tra te Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). I. FACTS T h e facts are thoroughly discussed in the Report and Recommendation. Briefly, Plaintiff, who h o ld s a degree in civil engineering technology, has been employed with Defendant since 1998 as a C o m m e rc ia l Plans Reviewer in the Building Inspection Department. In June 2006, he applied for the p o s itio n of Facilities Construction Manager. The position was filled in August 2006 by William B u t c h Fogle, a white male. Plaintiff contends that he was more qualified for the position, but Mr. F o gle was preselected for the position under the "good ole boy system." Entry 28, 12; Entry 38-15 (D e p o s itio n of Delano Scott), 52 ("Mr. Marion Boyd . . . told me point blank [the position] was c re a te d for Butch Fogle. And also later in conversation, Harold Young told me the same thing, it was c re a te d for Butch Fogle."); 111 ("I was just told that [the position] was created for Butch Fogle and th a t's all I know."), 132 ("It was a joke around the office. Everybody at the office knew [the position] w a s created for Butch."). According to Plaintiff,

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A n d Marion Boyd has told me several times that the only reason Butch Fogle is there i s because Bill Clark [the County Administrator] is protecting him. And he also said it has something to do with Butch[`s] wife being a banker or something. That's what B ill Clark . . . somebody is upholding him. So I don't know what's going on between B i ll Clark and Butch Fogle, but Bill Clark has been protecting Butch even though he k n o w s Butch is not capable and has not been capable of performing his duties. E n try 38-15 (Deposition of Delano Scott), 53. A fte r Mr. Fogle was promoted, his position as Building Official came open. Plaintiff attended a meeting on August 31, 2006 with Mr. Clark and Harold Young, Deputy County Administrator. P la in tiff and a co-worker, Harry Wiggins, who is white, were told that Mr. Fogle would be assuming h is new duties the day after Labor Day and that they both were being considered for the Building O ffi c i a l position that Mr. Fogle had vacated. Plaintiff testified in his deposition that [I] just couldn't believe that they would even consider Harry [Wiggins] for the p o s itio n when I was already there and was four years his senior and with all the . . . W ith my work performance being such as it was, at the time I was working for the C o u n t y eight years, had no problem dealing with the public, engineers, architects. All m y work was . . . has been . . . has been exceptional and outstanding as far as I know. A n d for them to even to . . . to concede including Harry Wiggins in the process, it was ju s t dumbfounding to me. E n try 38-15 (Deposition of Delano Scott), 61-62. Plaintiff was "appalled that they even compared H a r r y Wiggins to myself." Id. at 68. Plaintiff informed Messrs Clark and Young, "I will never work fo r Harry Wiggins because I [am] going to sue Orangeburg County[.]" Entry 38-15, 69. On October 12, 2006, Plaintiff filed a Charge of Discrimination with the South Carolina H u m a n Affairs Commission (SHAC), alleging as follows: I am Black and currently work for the above cited employer. My job title is C o m m e rc ia l Plan Reviewer. In July, 2006 I applied for the Facilities/Construction M a n age r vacancy. I found out William Fogle (White) was selected. To my k n o w le d ge Mr. Fogle was removed from his job because his performance was below a v e r a ge . In addition he was disciplined for drinking on the job. I was not afforded a n interview and I feel that my qualifications exceed Mr. Fogle's.

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T o my knowledge a vacancy for Building Official is available. I was told Harry W iggin s (White) and I are being considered for the job. I have more experience and te n u re than Mr. Wiggins. Wiggins has told me that he is being pushed into the B u i ld i n g Official position and is currently attending a class for certification. The class th a t he is currently enrolled in I am already certified. I believe my employer's actions are discriminatory based on my race, Black. This was d o n e in violation under Title VII of the Civil Rights Act of 1964, as amended. E n try 38-4. In November 2006, Defendant hired Bruce Spicher, a white male, for the Building Official p o s itio n . Spicher had been employed by Charleston County as Senior Building Inspector. II. DISCUSSION A. R a ce Discrimination P l a in t iff contends that the Magistrate Judge erred in failing to find that Plaintiff had been d e n ie d promotions because of his race. The court disagrees. B e ca u s e Plaintiff has put forth no direct evidence of race discrimination, he must provide c i r c u m s t a n t ia l evidence of discrimination pursuant to the burden-shifting framework set forth in M c D o n n e l l Douglas Corp. v. Green, 411 U.S. 792, 802-05, (1973). See Freeman v. North State B a n k , 282 F. App'x 211, 215 (4 th Cir. 2008). Under McDonnell Douglas, a plaintiff first must e s ta b lis h a prima facie case of discrimination. Id. at 216 (citing Love-Lane v. Martin, 355 F.3d 766, 7 8 6 (4 th Cir. 2004)). If the plaintiff makes such a showing, the defendant must proffer a legitimate, n o n d is c rim i n a to ry basis for its decision. Id. (citing Love-Lane, 355 F.3d at 786)). If the defendant d o e s so, the plaintiff is obliged to present evidence to prove that the defendant's articulated reasons w e re a pretext for unlawful discrimination. Id. (citing Love-Lane, 355 F.3d at 786). "`Although the e v i d e n t ia r y burdens shift back and forth under the McDonnell Douglas framework, the ultimate

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b u rd en of persuading the trier of fact that the defendant intentionally discriminated against the p l a i n t i ff remains at all times with the plaintiff.'" Id. (quoting citing Love-Lane, 355 F.3d at 786). In reviewing Plaintiff's claim that he was denied promotions to the Facilities/Construction M a n a g e r and Building Official positions on the basis of his race, the Magistrate Judge noted that, e v e n assuming Plaintiff made out a prima facie case of failure to promote, Plaintiff was unable to e s ta b lis h pretext as to either position. With regard the Facilities/Construction Manager position, Plaintiff essentially reiterates his a rgu m e n t that he possessed the requisite supervisory experience and was qualified for the position. E n try 38, 7. Regardless of Plaintiff's qualifications, however, Plaintiff's own testimony is that the F a c ilitie s /C o n s tru c tio n Manager was created for Mr. Fogle. As the Magistrate Judge properly noted, t h i s type of preselection does not establish pretext. While preselection may establish that an e m p lo ye e was unfairly treated, it does not by itself prove racial discrimination. Anderson v. W e s tin g h o u s e Savannah River Co, 406 F.3d 248, 271 (4th Cir. 2005) (quoting Blue v. United States, 9 1 4 F.2d 525, 541 (4th Cir. 1990)). This is because preselection works to the detriment of all a p p l ic a n t s for the job, regardless of race. See id. (quoting Blue, 914 F.2d at 541). Plaintiff's o b j e c t i o n is without merit. A s to the Building Official position, the Magistrate Judge noted that Defendant had advanced s e v e r a l legitimate, non-discriminatory reasons for hiring Mr. Spicher: (1) Mr Spicher was certified a s a Building Official, whereas Plaintiff had failed the examination twice; (2) Mr. Spicher had eight ye a rs ' experience as a supervisor in Charleston County's Building Inspection Department; and (3) a decision was made that hiring from outside the Department would avoid potential friction that c o u l d result if either Mr. Wiggins or Plaintiff were hired as Building Official.

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P l a in t iff contends that the Magistrate Judge erred in accepting Defendant's explanation that it went outside the agency to hire someone for the Building Official job because of a disagreement b e t w e e n Plaintiff and Mr. Wiggins. Under the McDonnell Douglas test, an employer's burden is a b u rd en of production, not persuasion. Moore v. Mukasey, 305 F. App'x 111, 114 (4 th Cir. 2008) ( q u o t in g Holland v. Washington Homes, Inc., 487 F.3d 208, 214 (4 th Cir. 2007)). The analysis at this s ta ge involves no credibility assessment. Id. at 115 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 5 0 2 , 509 (1993)). Rather, Defendant need only articulate reasons for its actions that, if believed by th e trier of fact, would support a finding that unlawful discrimination was not the cause of the d e c i s i o n not to promote Plaintiff. See id. (quoting St. Mary's Honor, 509 U.S. at 507)). The court fin d s that the Magistrate Judge did not err in accepting the proffered explanation, and that Defendant m e t its burden of production. Plaintiff's objection is without merit. Once an employer meets the burden of production, "`the McDonnell Douglas framework­with its presumptions and burdens­disappear[s], and the sole remaining issue [is] discrimination vel non.'" Id . at 114 (quoting Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4 th Cir. 2004)). In other words, the burden shifts back to Plaintiff to prove by a preponderance of the evidence that D e fe n d a n t 's stated reasons for taking the employment action were not its true reasons, but rather p re te x t for unlawful discrimination. See id. at 114-15 (citing Hill, 354 F.3d at 285). Plaintiff asserts that the Magistrate Judge should have taken into consideration his superior q u a l i fi c a t i o n s . Plaintiff contends that he had the same amount of service with Orangeburg County a s Mr. Spicher did with Charleston County, he had far more education, and he already was employed b y Defendant. According to Plaintiff, his qualifications show that the offered explanation was merely a pretext.

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A plaintiff alleging a failure to promote can prove pretext by showing that he was better q u a lifie d for a position. Moore, 305 F. App'x at 116 (quoting Heiko v. Colombo Savings Bank, 434 F . 3 d 249, 259 (4 th Cir. 2006)). In this case, the evidence suggests that both Plaintiff and Mr. Spicher w e re qualified for the position, Plaintiff by way of education, and Mr. Spicher by way of Building O ffi c i a l certification. See Entry 28-11 (Deposition of Harold Young), 31 (stating that both applicants h a d the minimum qualifications for the position). At his deposition, Mr. Young testified that p e r t in e n t regulations required Building Official certification, which weighed in Mr. Spicher's favor. E n try 28-11, 32. Mr. Young further explained: [M r. Spicher] had extensive background in building and construction. He had, gosh, s o m e 16, 17 certifications from IBC [sic] [ICC, International Code Council]. He is a lre a d y a senior inspector that dealt with the County that was larger than ours that had a system that was more, more intricate than ours that had probably about five times m o re development and had handled on a day-to-day basis, issues. I mean, a day-tod a y basis a lot of the things that you would want a building official to handle. And a lot of that was based upon qualifications and his background, you know, the i n f o r m a t i o n that he had and certifications and whatnot. E n try 28-11, 37-38. P la in tiff cannot establish pretext because he has not presented evidence that would allow a r e a s o n a b l e jury to conclude that he was better qualified for the Building Official position than Mr. S p i c h e r . See Moore, 305 F. App'x at 116. Plaintiff's objections are without merit. B. R e ta l i a t i o n P l a in t iff contends that the Magistrate Judge erred in finding that he failed to establish a cause o f action for retaliation. The court disagrees. T o prevail on a retaliation claim, Plaintiff must satisfy the three-step proof scheme established in McDonnell Douglas. See Laughlin v. Metropolitan Washington Airports Auth., 149 F.3d 253, 258 (4 th Cir. 1998). First, Plaintiff must establish a prima facie case for retaliation by demonstrating (1)

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th a t he engaged in protected activity, (2) that he suffered an adverse employment action; and (3) that th e re is a causal nexus between the protected activity and the adverse action. Brockman v. Snow, 217 F . App'x 201, 206 (4 th Cir. 2007) (citing McNairn v. Sullivan, 929 F.2d 974, 980 (4 th Cir. 1991)). O n c e established, the burden shifts to Defendant to articulate a nonretaliatory reason for its actions. La u gh lin , 149 F.3d at 258 (citing cases). If Defendant meets its burden of production, the

p re s u m p tio n of retaliation created by the prima facie case is dropped, leaving Defendant with the u ltim a te burden of proving that he has been the victim of retaliation. Id. (citing cases). The Magistrate Judge noted that the parties disputed whether Plaintiff had shown a causal c o n n ec tio n between his failure to be promoted to the Building Official position and the filing of the C h a r ge of Discrimination. However, the Magistrate Judge determined that summary judgment in fa v o r of Defendant nevertheless was appropriate because Plaintiff failed to overcome Defendant's n o n r e t a l ia t o r y reasons for its actions. Plaintiff contends only that Defendant's nonretaliatory

e x p la n a tio n s lack evidence and are all unworthy of credence. The district court need not conduct a

de novo review when a party makes only general and conclusory objections that do not direct the court to a specific error in the Magistrate Judge's proposed findings and recommendations. Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982). In any event, for the reasons stated previously regarding Mr. Spicher, the court concludes that Plaintiff's objections are without merit.
C. B re a c h of Contract P l a i n t i ff asserted a state law claim for breach of contract based upon the terms of an O r a n ge b u rg County ordinance that provided for consideration to be given to filling job vacancies inh o u s e . The Magistrate Judge determined that the language of the ordinance did not create a contract, a n d that Plaintiff's state law claim failed as a matter of law. Plaintiff does not object to the Magistrate

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J u d ge 's conclusion. In the absence of objections to the Report, this court is not required to give any e x p l a n a t i o n for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). III. CONCLUSION F o r the reasons stated, the court adopts the Report and Recommendation and incorporates it h e r e in by reference. Defendant's motion for summary judgment (Entry 26) is granted. IT IS SO ORDERED.

/ s / Margaret B. Seymour United States District Judge C o l u m b ia , South Carolina S e p te m b e r 14, 2009

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