Ward v. City of North Myrtle Beach, No. CIV.A. 4:04-CV-22940.

Decision Date29 September 2006
Docket NumberNo. CIV.A. 4:04-CV-22940.
Citation457 F.Supp.2d 625
CourtU.S. District Court — District of South Carolina
PartiesTimothy A. WARD, Plaintiff, v. CITY OF NORTH MYRTLE BEACH, Defendant.

George N. Spirakis, Spirakis and Haar, Myrtle Beach, SC, for Plaintiff.

D.L. Dirk Aydlette, III, Linda Pearce Edwards, Gignilliat Savitz and Bettis, Columbia, SC, for Defendant.


WOOTEN, District Judge.

The plaintiff, Timothy A. Ward, filed his complaint on November 10, 2004 against the defendant, the City of North Myrtle Beach. (Doc. # 1). The plaintiff alleges that he was terminated from employment with the defendant as a result of racial bias. He is asserting a cause of action pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and state law claims for outrage and negligence. The defendant filed an answer to the complaint on December 6, 2004. (Doc. # 4). On September 9, 2005, the defendant filed a motion for summary judgment. (Doc. # 11). The plaintiff filed his response in opposition to the motion for summary judgment on September 28, 2005 and the defendant filed a reply to the response to motion for summary judgment. (Docs.# 15, # 20). A hearing was conducted on the pending motion for summary judgment by the Honorable Magistrate Judge Thomas E. Rogers III on August 9, 2006. (Doc. # 23). This matter now comes before this Court for review of the Report and Recommendation ("the Report") filed by United States Magistrate Judge Rogers. (Doc. # 26). In the Report, the magistrate judge recommends that the City of North Myrtle Beach's motion for summary judgment be granted. Id. The plaintiff filed objections to the Report on September 5, 2006. (Docs.#28). The defendant filed a response to plaintiffs objections on September 20, 2006. (Doc. # 29). A hearing on the motion for summary judgment was conducted by the undersigned on September 26, 2006. (Doc. # 31).

In conducting this review, the Court applies the following standard:

The magistrate judge makes only a recommendation to the Court, to which any party may file written objections... The Court is not bound by the recommendation of the magistrate judge but, instead, retains responsibility for the final determination. The Court is required to make a de novo determination of those portions of the report or specified findings or recommendation as to which an objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the Report and Recommendation to which no objections are addressed. While the level of scrutiny entailed by the Court's review of the Report thus depends on whether or not objections have been filed, in either case, the Court is free, after review, to accept, reject, or modify any of the magistrate judge's findings or recommendations. Wallace v. Housing Auth. of the City of Columbia, 791 F.Supp. 137, 138 (D.S.C. 1992) (citations omitted).

In light of this standard, the Court has reviewed the Report, as well as the memorandum, exhibits, and objections submitted by each party.


The magistrate judge has noted the appropriate standard of review. This Court reiterates the standard which applies in evaluating a motion for summary judgment.

Defendants filed their motion for summary judgment pursuant to Rule 56, FRCP. The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine issue of material fact and the moving part is entitled to judgment as a matter of law. Rule 56(c) FRCP; Celotex Corp. v. Catrett, 411 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper if the nonmoving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 411 U.S. 317, 106 S.Ct. 2548. Once the moving party has brought into question whether there is a genuine issue for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine issue for trial. Fed. R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 415 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 247-^8, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir.1991). However, the nonmoving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Baber v. Hosp. Corp. Of Am., 977 F.2d 872, 874-75 (4th Cir.1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310,1316 (4th Cir.1993).

Rule 56(e) provides, "when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegation or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." See also Celotex Corp. v. Catrett, 411 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c) except the mere allegations or denials of his pleadings. Rather, the party must present evidence supporting his or her position through "depositions, answers to interrogatories, and admission on file, together with ... affidavits, if any." Celotex Corp. v. Catrett, 411 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir.1994); Orsi v. Kirkwood, 999 F.2d 86 (4th Cir.1993); Local Rules 7.04, 7.05, D.S.C.


The magistrate judge has provided a general outline of the appropriate statutory and case law relevant to the analysis that applies in a Title VII discrimination case. The Court reiterates this case law.

There are two methods of proving a case of intentional discrimination under Title VII: the method set forth in the Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (mixed-motive) and the method established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (pretext).1 Under the mixed-motive method, a plaintiff must present sufficient evidence, direct2 or circumstantial, that despite the existence of legitimate, nondiscriminatory reasons for the adverse employment action, an illegal factor (i.e., race) was a motivating factor in that decision. Hill v. Lockheed Martin Logistics Mgmt, Inc., 354 F.3d 277 (4th Cir.2004). Plaintiff need not show race was the sole motivating factor, but only that it was a motivating factor. Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148,156 L.Ed.2d 84 (2003). The racial bias must come from a relevant decisionmaker.3 Also, the protected trait "must have actually played a role in the employer's decision making process and had a determinative influence on the outcome." Hill, 354 F.3d at 286.

Regardless of the method of analysis employed, "[t]he ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination." Hill, 354 F.3d at 286. Plaintiff must produce sufficient evidence upon which a reasonable juror could find that the protected trait actually motivated the employer's decision. Id.

The magistrate judge's analysis is detailed, complete, and persuasive. He concludes that to "infer [Oliver] was pressured by his supervisor.. .would be speculative," and, "would require inference upon inference that amounts to speculation." (Doc. #26). Further, the magistrate judge states that the "evidence, direct or circumstantial, presented, is insufficient to show plaintiffs race was a factor in the decision to terminate his employment." While this Court acknowledges the thoughtful analysis of the magistrate judge's legal and factual conclusions, this Court simply reaches a different conclusion in a case that is close.

Regarding specific evidence, the parties apparently agree that Oliver is the primary witness, if not the only witness in this case, that enables the plaintiff to survive summary judgment. Without Oliver, the plaintiff does not have sufficient evidence to avoid summary judgment. Oliver provided testimony before the Employment Security Commission. His deposition was not taken by either party to this action. Without his deposition, many questions remain unresolved. The defendant argues strenuously that the unanswered questions warrant a grant of summary judgment.

As noted, the magistrate judge has submitted the facts in detail in the Report and Recommendation. (Doc. # 26). They are incorporated by reference in this order. The detailed facts will not be restated herein. This Court, however, highlights certain relevant testimony by Oliver before the Employment Security Commission.

[OLIVER] The thing that I'm ashamed about is the poor evaluation ... I gave him a poor evaluation and I should not have done that... I felt pressured... Under no circumstances would I have ever fired Tim because he was too valuable to me... I gave him the poor evaluation which caused some of his problems now, but that's my fault; that's not his fault, and I'm sorry for that, Tim...But I don't think Tim would've been in that position had I done my job properly as far as the...

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