Christian v. South Carolina Department of Labor Licensing & Regulation , 651 F. App'x 158 ( 2016 )

UNPUBLISHED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Affirmed by unpublished opinion.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
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Unpublished opinions are not binding precedent in this circuit.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
DAVIS, Senior Circuit Judge:
David Christian, III appeals the district court’s grant of
summary judgment to his former employer, the South Carolina
Department of Labor, Licensing, and Regulation (“LLR”), and
several individually named defendants, on his claims of
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. Christian worked in the agency’s Professional
and 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 consolidate licensing staff
3
working throughout the agency into one subdivision. OLC was
charged with performing licensing services, including the
issuance of licenses, for most of the professional and
occupational boards administered by LLR. 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 of LLR personnel were
dissatisfied with these changes. 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 House of Representatives. Representative William
Sandifer, III, who chaired the House of Representatives
subcommittee with oversight of LLR, 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. Youmans testified at
4
one of the House hearings. In her subsequent deposition for
this case, she stated 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
innuendos.” J.A. 1202. 1 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. She nominated Catherine Templeton to replace Youmans
as Director of LLR. At the press conference announcing
Templeton’s nomination, Haley referred to “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
1Citations to the J.A. refer to the Joint Appendix
submitted by the parties in this case.
5
Board of Pharmacy and several others detailing a number of
complaints with OLC. 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 of all of its employees,
6
including Christian. The RIF of OLC affected forty-eight full-
time, permanent employees. Of the affected employees, thirty-
two were African-American, twelve were white, and four were
identified as members of “other” races or ethnicities. Most of
these employees, including Christian, were offered positions as
administrative assistants performing licensing or compliance
functions for the various boards.
After the RIF was announced, Christian interviewed for
three available positions: Assistant Deputy Director of the
Office of Board 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. Alvey, a white male, and Lynn
Rogers, an African-American 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 Ron Cook, an LLR employee who had already been
performing the duties now assigned to the Assistant Deputy
Director of that program. Ido, Dorman, and Cook each had the
highest score for their respective positions according to LLR’s
interview criteria; Christian had the second-highest.
7
Christian did not apply for any other positions within LLR,
and eventually accepted the administrative assistant position
offered to him following the RIF. 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 filed a multi-count complaint against LLR
alleging violations of Title VII, and against 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 recommending that the court grant summary
judgment to the defendants on all claims. Overruling
Christian’s timely objections, the district court adopted the
Report and Recommendation in its entirety. Christian timely
appealed.
II.
8
We review a district court’s decision to grant summary
judgment de novo. 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 and the movant is
entitled to judgment as a matter of law.’” Id. at 568 (quoting
Fed. R. Civ. P. 56(a)). In determining whether a genuine issue
of material fact exists, we “view the facts and all justifiable
inferences arising therefrom in the light most favorable
to . . . the nonmoving party.” Id. at 565 n.1 (citation and
quotation marks omitted). However, “[c]onclusory or speculative
allegations do not suffice, nor does a mere scintilla of
evidence in support of [the nonmoving party’s] case.” 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)
9
A plaintiff may avoid summary judgment on a discrimination
claim under Title VII through two avenues of proof: by
“presenting direct or circumstantial evidence that 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 relying on the McDonnell Douglas 3 burden-
shifting framework. Diamond v. Colonial Life & Acc. Ins. Co.,
416 F.3d 310, 318 (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. Hill, 354 F.3d at 285. The burden then
shifts to the employer to articulate a 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], and the sole remaining issue [is]
discrimination vel non.” 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
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 action is actually a pretext for
discrimination.” Diamond, 416 F.3d at 318. 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. See Coleman
v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012) (citation
omitted). 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
11
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 LLR had no evidence that
12
returning licensing functions to the boards was more effective
than retaining OLC.
Christian’s attack on LLR’s rationale for the RIF is
misplaced. 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. He
disagrees with LLR’s decision to retain the Office of 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 its employees and are not
13
probative evidence of discrimination for the reasons just
discussed. 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 OLC personnel were African-American. Christian
contends that these figures illustrate the RIF’s
disproportionate impact on African-American employees and
therefore support his claim that the agency’s decision 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. Without context or analysis,
the figures Christian offers are not probative of
discrimination. See Henson v. Liggett Grp., Inc., 61 F.3d 270,
276–77 (4th Cir. 1995).
14
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. He offers no statistical evidence to support this
claim. Instead, he relies entirely on speculation and
inadmissible hearsay regarding how LLR filled available
positions following the RIF. And as 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)). Christian has not, therefore,
demonstrated that white employees were, in fact, treated
preferentially after the RIF, and, even if LLR had preselected
the individuals Christian identified for their respective
positions, their preselection, without more, 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 the subjective beliefs of
15
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 of the decision maker which is relevant to the
question of [discrimination], not the opinions of [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, a co-worker who obtained one of the available
Assistant Deputy Director positions for which Christian also
interviewed. Christian asserts that Cook circulated a racist
video involving President Obama, told racist jokes, referred to
African Americans as “you people” or “people of your
persuasion,” and used a racial epithet in reference to an
African-American LLR employee. While “[d]erogatory remarks may
in some instances constitute direct evidence of discrimination,”
the remark “cannot be stray or isolated and ‘[u]nless the
remarks upon which plaintiff relies were related to the
employment decision in question, they cannot be evidence of
[discrimination].’” Brinkley v. Harbour Recreation Club, 180
F.3d 598, 608 (4th Cir. 1999) (alterations in original) (quoting
16
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 a clear nexus with the employment decision in
question, the materiality of stray or isolated remarks is
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. Christian asserts that
Cook claimed to have influence with 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 matter. Christian also could not have reasonably
believed that Cook had such an ability to dictate personnel
decisions at LLR. 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
17
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. For the same reasons, we
conclude that Christian, relying 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.
18
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 undermines the
credibility of the employer’s stated reasons.” 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 qualified for
their respective positions than Christian. 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
19
positions, one interviewer’s 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. Br. Pl.-Appellant 48–49.
Even making all reasonable inferences in favor of
Christian, he has not produced sufficient evidence to avoid
summary judgment on his non-selection claim. 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, Christian does not argue that the
individuals who were selected were not qualified for the
positions they were awarded. A comparison of the qualifications
of the successful 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,
20
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 choosing those
individuals were a pretext for discrimination. LLR is entitled
to summary judgment on Christian’s non-selection claim.
B.
21
Christian also contends that the individual defendants
should not have received summary judgment on his civil
conspiracy claim under South Carolina law. 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). The
“essential consideration” of a civil conspiracy claim 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 and the other alleged co-
conspirators acted with a primary purpose of harming him. He
22
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.” Br. Pl.-Appellant
54. No reasonable jury could make such an inferential leap
based on the record in this case. While a jury is charged with
choosing between conflicting inferences from circumstantial
evidence, “[p]ermissible inferences must still 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
23
enough. 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