Opinion
C/A 3:22-111-SAL-PJG
03-30-2023
Timothy Duerr, Plaintiff, v. Richland County, Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
The plaintiff, Timothy Duerr, filed this employment case raising claims pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq.; and the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq.; against his former employer, Richland County. Duerr also asserts a state law claim for workers' compensation retaliation under S.C. Code Ann. § 41-1-80. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendant's motion for summary judgment. (ECF No. 22.) Duerr filed a response in opposition (ECF No. 29), and the defendant replied (ECF No. 37). Having reviewed the parties' submissions and the applicable law, the court finds that the motion should be denied.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. Duerr worked for the County as a Research Analyst in the Economic Development Office, headed by Jeff Ruble. Duerr is a disabled military veteran, and he suffered further injury in a work-related accident in July 2019. His workers' compensation claim was resolved in June of 2020. Subsequently, Duerr obtained approval from the Human Resources Department, over Ruble's opposition, to work from home during the COVID-19 pandemic. When Duerr and his family contracted the virus, Duerr took leave under the Family Medical Leave Act, returning to remote work on January 20, 2021.
On January 27, 2021, Ruble held a zoom meeting with Duerr to inform him that Duerr's employment with the County was being terminated. Duerr grieved his termination and was ultimately reinstated by Dwight Hanna, the Human Resources Director. After further complaints from Duerr about Ruble's failure to restore his computer access and exclusion of Duerr from a staff meeting, a zoom meeting took place on February 17, 2021 with Duerr, Ruble, Hanna, and Lori Thomas, Assistant County Administrator. The meeting turned tense as Duerr vehemently expressed his belief that Ruble was retaliating against him and setting him up for failure. Duerr further criticized Ruble's job performance, disagreeing with Ruble's decisions and suggesting that Ruble was impossible to please; Duerr specifically referred to a constructive discharge. Ruble requested a “side conversation” with Thomas and Hanna. On February 25, Thomas informed Duerr via zoom that he was being terminated for his incivility toward Ruble during the January 27 and February 17 meetings. Duerr again grieved his termination but this time it was upheld. Duerr then filed a Charge of Discrimination with the Equal Employment Opportunity Commission. This lawsuit followed, in which Duerr raises claims for discriminatory discharge and retaliation under the ADA, retaliation under the FMLA, and retaliation under the South Carolina Workers' Compensation Act.
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine [dispute] of material fact.” Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (internal quotation marks and citation omitted). A fact is “material” if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257.
In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
B. Methods of Proof in Employment Cases
A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, he may attempt directly to prove discrimination with direct or circumstantial evidence. Alternatively, when direct proof is lacking, a plaintiff may proceed under the McDonnell Douglas burden-shifting framework. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005); see also Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (holding that the McDonnell Douglas framework applies to claims brought under the ADA); Vannoy v. Fed. Rsrv. Bank of Richmond, 827 F.3d 296, 304 (4th Cir. 2016) (FMLA retaliation claim). Pursuant to this framework, once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010) (Title VII). The defendant's burden “is a burden of production, not persuasion.” Reeves, 530 U.S. at 142. Once a defendant meets this burden by producing affidavits or testimony demonstrating a legitimate, nondiscriminatory reason, “the McDonnell Douglas framework-with its presumptions and burdens-disappear[s], and the sole remaining issue [is] discrimination vel non.” Id. (internal quotation marks and citations omitted).
In other words, if the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason, the plaintiff must demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[], but [was] a pretext for discrimination.” Merritt, 601 F.3d at 294 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Accordingly, the plaintiff's burden of demonstrating pretext “merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.” Merritt, 601 F.3d at 294 (quoting Burdine, 450 U.S. at 256) (alterations in original); see also Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005) (Title VII & 42 U.S.C. § 1981). To meet this “merged” burden, the employee may prove by a preponderance of the evidence that the decision maker's affidavit is untrue or that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256.
“[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148. However, “if the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred,” summary judgment is appropriate. Id. Accordingly, the court must evaluate “the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.” Id. at 148-49. “Notwithstanding the intricacies of proof schemes, the core of every [discrimination] case remains the same, necessitating resolution of the ultimate question of . . . whether the plaintiff was the victim of intentional discrimination.” Merritt, 601 F.3d at 294-95.
C. Analysis
This case requires the court to explore the line between opposition activity that is protected by federal anti-discrimination statutes and unacceptable employee conduct warranting termination. In the instant case, directly in the context of attempting to protect his rights, the employee used a stern, loud voice; declared his commitment to hire a lawyer and sue; and, when encouraged to speak candidly at a meeting, engaged in a three-minute rant criticizing his boss. (Pl.'s Resp. Opp'n Ex. 29, Feb. 17 Recording 24:30-27:30, ECF No. 29-29.) A jury must decide whether his employer truly viewed his manner to be insubordinate and threatening, or whether it used those reasons as a pretext to retaliate against him for reasonably opposing his boss's perceived unlawful conduct.
The ADA prohibits employers from acting adversely against a qualified individual on the basis of a disability. 42 U.S.C. § 12112. Termination is an adverse act. See Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001) (describing the elements for an ADA discriminatory discharge claim). Moreover, the ADA and FMLA prohibit employers from retaliating against employees who oppose any act or practice made unlawful under the statutes. 42 U.S.C. § 12203(a) (ADA); 29 U.S.C. § 2615(a)(2). The requisite elements for a prima facie case of retaliation typically include: (1) the employee engaged in a protected activity; (2) the employer acted adversely against him; and (3) there was a causal connection between the protected activity and the asserted adverse action. Roberts v. Gestamp W. Virginia, LLC, 45 F.4th 726, 738 (4th Cir. 2022) (FMLA); Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 154 (4th Cir. 2012) (ADA). Further, ADA retaliation claims must be proved according to traditional principles of but-for causation, which requires proof that the unlawful retaliation would not have occurred in the absence of the employer's wrongful action. See Fry v. Rand Constr. Corp., 964 F.3d 239, 246 (4th Cir. 2020) (FMLA); Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 236 (4th Cir. 2016) (ADA) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 351 (2013)).
“Protected activity” falls into one of two categories: opposition or participation. Crawford v. Metro. Gov't of Nashville & Davidson Cnty., 555 U.S. 271 (2009). To constitute protected opposition activity, a plaintiff must have conveyed to the employer a reasonable belief that the actions complained of violated federal law. Jordan v. Alt. Res. Corp., 458 F.3d 332, 340-41 (4th Cir. 2006) (stating that “an employee seeking protection from retaliation must have an objectively reasonable belief in light of all the circumstances that a Title VII violation has happened or is in progress”) (citing Equal Emp't Comm'n v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir. 2005)); see also Netter v. Barnes, 908 F.3d 932, 937-38 (4th Cir. 2018) (discussing the standards for participation and opposition activity).
Case law and other persuasive authorities instruct that opposition conduct must be “reasonable.” See Netter, 908 F.3d at 937-38 (citing Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259-60 (4th Cir. 1998)); EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004, § II.A.2, 2016 WL 4688886, at *7 (Aug. 25, 2016). The cases give some guidelines and parameters. The United States Court of Appeals for the Fourth Circuit, like many circuits, has applied a balancing test weighing the purposes of opposition clauses in federal anti-discrimination statutes to protect persons engaging reasonably in activities opposing discrimination against Congress's manifest desire “not to tie the hands of employers in the objective selection and control of personnel.” Laughlin, 149 F.3d at 259 (quoting Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d 222, 231 (1st Cir. 1976)); Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981) (same). In Armstrong, the Fourth Circuit found that an employee's complaints that were not “disruptive or disorderly” were protected. Armstrong, 647 F.2d at 448. By contrast, in Laughlin, the Fourth Circuit concluded that the plaintiff employee's breach of trust in copying confidential material and sending it to an outside party was not protected opposition activity as a matter of law. Laughlin, 149 F.3d at 260. Similarly, a district court within the Fourth Circuit recently found that summary judgment was warranted on an FMLA retaliation claim when the evidence showed that the “plaintiff was terminated after defendant perceived him to have made profane statements to one supervisor directed at another in defiance of direct instruction to locate his tools.” Stevenson v. Parker Offshore, LLC, C/A No. 4:21-cv-70-FL (E.D. N.C. Mar. 27, 2023), ECF No. 34 at 23 (emphasis added) (noting that when the evidence as to what was said conflicts, it is the decisionmaker's belief that matters).
Sister circuits have developed some guidelines to aid in balancing the competing interests of employees and employers when determining whether an employee's opposition activity crosses the line. For example, the Eleventh Circuit, drawing on prior precedents as well as tests used by other circuits, has held that oppositional conduct loses its protected status when it (1) “so interferes with the employee's performance of her job that it renders her ineffective in the position which she was employed,” or (2) is “expressed in a manner that unreasonably disrupts other employees or the workplace in general.” Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121, 1141 (11th Cir. 2020) (concluding that the efforts of the plaintiff employee, who served as the manager of the Team Relations Department, to recruit another employee to sue the company rendered her ineffective in the position) (citing Rosser v. Laborers' Int'l Union of N.A., Local No. 438, 616 F.2d 221, 223 (5th Cir. 1980) (finding that an employee's opposition activity so interfered with the performance of her job that it rendered her ineffective when the plaintiff employee ran against her supervisor, who was the incumbent secretary-treasurer of the union, and concluding that by seeking to unseat him from his job, the plaintiff employee placed her loyalty in question)); Rollins v. Florida Dep't of Law Enft, 868 F.2d 397, 400-01 (11th Cir. 1989) (finding the plaintiffs opposition activity was not reasonable because she had earned a reputation as a disruptive complainer who antagonized her supervisors and colleagues and impaired the morale of her unit); see also Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1312 (6th Cir. 1989) (finding that the opposition clause does not protect all opposition activity and concluding that “[a]n employee is not protected when he violates legitimate rules and orders of his employer, disrupts the employment environment, or interferes with the attainment of his employer's goals”). Again, the touchstone of the inquiry is reasonableness. Laughlin, 149 F.3d at 259-60. “[W]hether the manner of opposition is unreasonable is a context- and fact-specific inquiry.” EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004, § II.A.2, 2016 WL 4688886, at *9 (Aug. 25, 2016).
With respect to Duerr's claims arising under federal anti-discrimination statutes, the County's motion rests exclusively on its contention that Duerr cannot show under the McDonnell Douglas framework that the County's proffered reasons for Duerr's termination were a pretext for unlawful discrimination. (See Def.'s Mem. Supp. Summ. J. at 5-7, ECF No. 22-1 at 5-7.) This argument fails for two reasons.
First, one or both of the proffered reasons-insubordination and “threatening” legal action-arguably provide direct evidence from which a jury could reasonably find retaliation. Thus, the McDonnell Douglas framework would not be apposite with respect to the retaliation claims. Direct evidence of an unlawful motive exists when conduct or statements of the decisionmaker that bear directly on the adverse employment decision reflect a discriminatory attitude. See Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006); accord Govan v. Caterpillar, Inc., 899 F.Supp.2d 445, 455 (D.S.C. 2012). Here, the letter of termination expressly states that the reason Duerr was terminated was his conduct at the January 27 and February 17, 2021 meetings during which he vehemently opposed Ruble's treatment of him. The termination documentation includes a handwritten notation listing specifically as a ground for termination that Duerr threatened legal actions. (Def.'s Mot. Summ. J. Ex. 35, Report of Disciplinary Action, ECF No. 29-35 at 2.) But advising an employer of an intent to take legal action is precisely the kind of opposition activity that is protected by the anti-retaliation statutes. See Mumm v. Charter Twp. of Superior, 727 Fed.Appx. 110, 113 (6th Cir. 2018) (finding a jury could find that the plaintiff's threat to sue over pay disparity qualified as a protected activity under Title VII); Johnson v. Portfolio Recovery Assocs., LLC, 682 F.Supp.2d 560, 579 (E.D. Va. 2009) (collecting cases finding that retaining an attorney and notifying the employer of the plaintiff's intent to file a lawsuit is protected opposition activity); Williams v. Alabama Dep't of Transp., 509 F.Supp.2d 1046, 1064 (M.D. Ala. 2007) (finding a threat to “get a lawyer” was protected activity under Title VII); Jones v. Yonkers Pub. Sch., 326 F.Supp.2d 536, 548 (S.D.N.Y. 2004) (stating the plaintiff's threat to sue the employer was protected activity under Title VII); Doe v. Kohn, Nast & Graf, P.C., 862 F.Supp. 1310, 1316 (E.D. Pa. 1994) (stating a threat to sue and consulting an attorney are both protected activities under the ADA); see also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004, § II.A.2, 2016 WL 4688886, at *8 (Aug. 25, 2016) (“It is also a reasonable manner of opposition for an employee candidly to tell the employer of her intention to file a charge with the EEOC or a complaint with a state or local FEPA, union, court, employer's human resources department, higher-level manager, or company CEO.”).
Second, even if Duerr could not establish intentional discrimination or retaliation with direct evidence, he has nonetheless presented sufficient evidence of pretext to avoid summary judgment under the McDonnell Douglas framework. See Sharif v. United Airlines, Inc., 841 F.3d 199, 205 (4th Cir. 2016) (“In evaluating employer intent and the question of pretext, the district court may consider ‘among other things, the historical background of the decision; the specific sequence of events leading up to the challenged decision; departures from the normal procedural sequence; and any contemporary statements by members of the decisionmaking body.' ”) (internal alterations omitted) (quoting Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 489 (1997)). First, as Duerr argues, sufficient evidence in the record reasonably suggests that Ruble attempted to terminate Duerr in late January and immediately blocked his computer access and changed the locks on the office doors. When Duerr grieved his termination, he was reinstated, arguably because Ruble did not follow Richland County's Human Resource Guidelines. Sharif, 841 F.3d at 206 (stating that the employer's failure to comply with established procedures may be evidence of improper motive) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977)). Management then made a post hoc attempt to portray Duerr's termination as a reassignment, but the purported new position did not yet even exist. In addition, Thomas fired Duerr a week after the February 17 meeting when Duerr complained about Ruble. This temporal proximity along with the shifting explanations surrounding Duerr's first termination permit a reasonable inference of pretext. See Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 126 (4th Cir. 2021) (“An adverse action that bears sufficient temporal proximity to a protected activity may, along with the existence of other facts, suggest that the adverse employment action occurred because of the protected activity.”); Haynes v. Waste Connections, Inc., 922 F.3d 219, 225 (4th Cir. 2019) (“In order to show pretext, a plaintiff may show that an employer's proffered nondiscriminatory reasons for the termination are inconsistent over time, false, or based on mistakes of fact.”); Wesley v. Arlington Cnty., 354 Fed.Appx. 775, 782 (4th Cir. 2009) (finding that the employer's “shifting explanations” for the termination were probative of pretext).
In Connecticut Fair Housing Center v. CoreLogic Rental Property Solutions, LLC, the United States District Court for the District of Connecticut stated:
Discrimination may have multiple proximate causes, and the possibility that one decisionmaker may be overridden by a higher decisionmaker does not automatically render the link to the subordinate's bias ‘remote' or ‘purely contingent' for proximate cause purposes, especially where the ultimate decisionmaker's judgment is neither ‘independent' nor unforeseeable. Staub v. Proctor Hosp., 562 U.S. 411, 419 [] (2011). In Staub, a Uniformed Services Employment and Reemployment Rights Act case, the Supreme Court held that for the purposes of showing illegal antimilitary bias, a biased supervisor's unfavorable report could be a proximate cause for the plaintiff's ultimate discharge, even though supervisor did not make ultimate decision [sic]. Id. The supervisor's biased report may remain a causal factor if the decisionmaker's independent investigation takes it into account without determining that the adverse action was, apart from the biased supervisor's recommendation, entirely justified. Id. at 421[.]478 F.Supp.3d 259, 288 (D. Conn. 2020) (internal quotation marks and alterations omitted for clarity). Here, a reasonable jury could find that Ruble tried to fire Duerr for unlawful reasons and then the Human Resources staff tried to cover it up by manufacturing a lawful reason.
Furthermore, a jury could reasonably determine that the stated reason of “insubordination” was false. Although the County specifically lists “disrespect for his supervisor” as a ground for termination and characterizes Duerr's conduct as “insubordination,” a reasonable jury could find that descriptor to constitute hyperbole at best and prevarication at worst, as Duerr never expressed any intent to disobey. See Insubordinate, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/insubordinate (last visited Mar. 29, 2023) (“disobedient to authority”). To the contrary, the audio recording indisputably shows that Duerr, though heated and critical, repeatedly affirmed his intention to do whatever Ruble requested of him. (Pl.'s Resp. Opp'n Ex. 29, Feb. 17 Recording at 25:30-27:25, ECF No. 29-29.)
In short, the evidence permits, but does not compel, a reasonable conclusion that Thomas terminated Duerr because she disliked his manner, sincerely believing that Duerr's response to Ruble's perceived discrimination or retaliation exceeded the bounds of legally protected, reasonable opposition activity. However, the evidence also permits a reasonable finding that she fired him because he was opposing what he reasonably perceived as discrimination or retaliation by Ruble, and that her proffered reasons of insubordination, threats, and intimidation were a pretext to get rid of him for it. This question must be resolved by a jury.
Further, the defendant has failed to carry its burden to show that it is entitled to judgment as a matter of law on Duerr's ADA discrimination claim, as, for the above reasons, Duerr has presented sufficient evidence to suggest that the stated reasons for his termination were pretextual.
Finally, the sole ground for the defendant's motion as to Duerr's workers' compensation retaliation claim is that it is untimely. Under South Carolina law, such claims must be filed within one year. S.C. Code Ann. § 41-1-80. However, the alleged retaliatory act did not occur until more than two years after Duerr's workplace injury. While this lack of temporal proximity may affect a causation inquiry, it does not render the claim time barred, as the claim cannot accrue until there is an alleged retaliatory act. See, e.g., McEachern v. Gray, C/A No. 4:14-CV-1234-BHH, 2015 WL 5089613, at *13 (D.S.C. Aug. 27, 2015) (“Section 41-1-80 of the South Carolina Code requires that a claim for retaliation for an employee filing a workers' compensation claim be filed within one year of the retaliation.”); cf, Johnson v. J.P. Stevens & Co., 417 S.E.2d 527, 529 (S.C. 1992) (stating the plaintiff's cause of action for workers' compensation retaliation accrued because of his termination, even though he had not yet filed a workers' compensation claim).
RECOMMENDATION
For the foregoing reasons, the court recommends that the defendant's motion for summary judgment (ECF No. 22) be denied.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court 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.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).