Opinion
Civil Action No. 9:17-3113-BHH-KFM
09-17-2018
Wayne Ensley, Plaintiff, v. Goodwill Industries of Lower SC, Defendant.
REPORT OF MAGISTRATE JUDGE
This matter is before the court on the defendant's motion to dismiss (doc. 18). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
I. PROCEDURAL HISTORY
The plaintiff, who is proceeding pro se, filed a complaint on November 16, 2017, alleging claims against his former employer for discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act ("ADEA"), violation of the Fair Labor Standards Act ("FLSA"), and a state law claim for breach of contract (doc. 1 at 4, 8-9). In an attachment to his complaint, the plaintiff also alleges "reverse discrimination and special treatment to a disabled[d] employee," which is presumably brought pursuant to the Americans with Disabilities Act ("ADA") (doc. 1-1 at 10). The plaintiff filed as an attachment to his complaint a charge of discrimination he filed with the South Carolina Human Affairs Commission ("SCHAC") against the defendant on May 22, 2017 (doc. 1-1 at 1). The charge alleged discrimination based on age and retaliation between September 30, 2016, and March 23, 2017 (id.). The plaintiff alleged in the charge that he was suspended by the defendant on September 30, 2016, when he questioned why a younger co-worker was allowed to watch television and text instead of working (id.). He further alleged that he was discharged from employment on March 23, 2017, and was told he did not fulfill his contract (id.). He stated, " I . . . believe that I have been discriminated against because of my age (57) and in retaliation for my opposition to employment practices declared unlawful by SC Human Affairs Law . . . and [the ADEA]" (id.).
The defendant filed a motion to dismiss on April 5, 2018 (doc. 18). On April 6, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately to the defendant's motion (doc. 19). The plaintiff filed a response in opposition to the motion to dismiss on June12, 2018 (doc. 28), and the defendant filed a reply on June 19, 2018 (doc. 29).
On August 27, 2018, the undersigned issued an order finding that this court lacks subject matter jurisdiction over the plaintiff's allegations of gender and disability discrimination brought under Title VII and the ADA because the plaintiff failed to exhaust his administrative remedies as to these claims (doc. 30 at 2-4). Because the plaintiff cannot cure the defects in these claims by amending his complaint, the undersigned declined to give the plaintiff leave to amend the claims and informed the plaintiff that a recommendation would be made that the district court grant the defendant's motion and dismiss the plaintiff's Title VII and ADA claims for lack of subject matter jurisdiction (id. at 4).
As to the plaintiff's remaining claims for age discrimination and retaliation under the ADEA, violation of the FLSA, breach of contract, and defamation, the undersigned found that the plaintiff's allegations failed to state a claim upon which relief can be granted, and thus the defendant's motion to dismiss pursuant to Rule 12(b)(6) should be granted (id. at 5-12). However, because amendment of the complaint could potentially cure the deficiencies identified in each of the claims, the undersigned gave the plaintiff an opportunity to cure the defects by filing an amended complaint by September 10, 2018 (id. at 12-13). The plaintiff was specifically warned (id. at 13) that if he failed to file an amended complaint or failed to cure the identified deficiencies in his claims, the undersigned would recommend to the district court that the defendant's motion to dismiss be granted and that the complaint be dismissed with prejudice and without leave for further amendment. The plaintiff failed to timely file an amended complaint. Accordingly, for the reasons set forth below, the undersigned recommends that the defendant's motion to dismiss (doc. 18) be granted.
II. APPLICABLE LAW AND ANALYSIS
A. Subject Matter Jurisdiction - Gender and Disability Discrimination Claims
The defendant argues that the plaintiff's allegations of gender discrimination and "reverse" disability discrimination are barred because the plaintiff did not raise any such allegations in his administrative charge filed with the SCHAC. The undersigned agrees.
In the complaint, the plaintiff marked Title VII and the ADEA as the basis for jurisdiction of this court (doc. 1 at 8). Within his complaint, he alleges "ster[e]otyping gender discrimination" (id. at 10). Also, in an attachment to his complaint, the plaintiff alleges "reverse discrimination and special treatment to a disable[d] employee" (doc. 1-1 at 10). To the extent the plaintiff has attempted to bring causes of action under Title VII or the Americans with Disabilities Act ("ADA"), the court lacks subject matter jurisdiction to consider the claims because the plaintiff failed to exhaust his administrative remedies.
It is well-established that prior to bringing a lawsuit under Title VII, the ADEA, or the ADA, a plaintiff must file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") or the SCHAC and receive a right to sue letter or other notice of termination of the administrative investigation. 42 U.S.C. § 2000e-5(e), (f) (Title VII); 42 U.S.C. § 12117(a) (ADA adopts procedures set forth in § 2000e-5(e)); 29 U.S.C. § 626(d)(1), (e) (ADEA). "[A] failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim. The same is true of claims made under the ADEA." Jones v. Calvert Group, Ltd., 551 F.3d 297, 300-301 (4th Cir. 2009) (citation omitted). Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of a claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1).
The EEOC charge "defines the scope of the plaintiff's right to institute a civil suit." Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). As stated by the Fourth Circuit Court of Appeals: "In any subsequent lawsuit alleging unlawful employment practices under Title VII, a federal court may only consider those allegations included in the [administrative] charge." Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir. 2013) (citation omitted). If the plaintiff's claims "'exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred.'" Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005) (quoting Dennis v. Cty. of Fairfax, 55 F.3d 151, 156 (4th Cir.1995)).
In his administrative charge, the plaintiff marked the boxes indicating that he was alleging discrimination based upon retaliation and age (doc. 1-1 at 1). He stated, "I . . . believe that I have been discriminated against because of my age (57) and in retaliation for my opposition to employment practices declared unlawful by SC Human Affairs Law . . . and [the ADEA]" (id.). When the claim raised in the district court litigation involves a different form of alleged unlawful employment practices than the one described in the administrative charge, courts have found the claim not to be administratively exhausted. See, e.g., Bryant, 288 F.3d at 132-33 (finding that claims of sex and color discrimination were not exhausted where a charge alleged only racial discrimination). Because the plaintiff did not allege gender or disability discrimination in his charge, the court does not have subject matter jurisdiction over those claims. Jones, 551 F.3d 297, 300-301.
To the extent the plaintiff may argue that his pro se status excuses his failure to administratively exhaust these claims, such argument is foreclosed by the Fourth Circuit Court of Appeals' ruling in Balas, in which the plaintiff, who was proceeding pro se at the time she filed her EEOC charge, communicated with the EEOC regarding her potential claims by meeting with the EEOC, submitting an intake questionnaire to the EEOC, and sending additional letters to the EEOC. 711 F.3d at 405. The EEOC prepared a charge, which did not include all of the allegations and claims that the plaintiff communicated. Id. After receiving a notice of right to sue from the EEOC, the plaintiff in Balas filed a lawsuit in district court, which contained discrimination claims not included in her EEOC charge. Id. The district court dismissed the discrimination claims that were outside the scope of the EEOC charge. Id. On appeal, the plaintiff in Balas argued that "she should not be penalized for the EEOC's 'negligence'" and that the district court should have considered additional claims and allegations that were communicated to the EEOC, but not included in her charge. Id. at 407-08. The Fourth Circuit affirmed the district court's ruling, stating, "[W]e are not at liberty to read into administrative charges allegations they do not contain." Id. at 408. Rather, in determining which claims were properly exhausted before the EEOC, courts "may look only to the charge filed with that agency." Id.
The plaintiff cannot cure the defects in his claims brought under Title VII and the ADA by amending his complaint as he has failed to exhaust his administrative remedies as to those claims. See generally Goode v. Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619, 623 (4th Cir. 2015); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066 (4th Cir. 1993). Accordingly, the undersigned recommends that the district court dismiss the plaintiff's Title VII and ADA claims for lack of subject matter jurisdiction. B. Failure to State a Claim - All Other Claims
1. Rule 12(b)(6) Standard
The defendant argues that the plaintiff's remaining claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because they fail to state a claim upon which relief can be granted (doc. 18). The undersigned agrees.
"The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint." Williams v. Preiss-Wal Pat III, LLC, 17 F. Supp. 3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a " 'short and plain statement of the claim showing the pleader is entitled to relief,' in order to 'give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.' " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "[T]he facts alleged 'must be enough to raise a right to relief above the speculative level' and must provide 'enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 569). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978). However, it is well-settled that, even though a pro se litigant's pleadings are to be liberally construed, federal courts performing their duties of construing pro se pleadings are not required to be "mind readers" or "advocates" for pro se litigants. See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985).
"In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document "was integral to and explicitly relied on in the complaint," and there is no authenticity challenge. Id. at 448 (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). See also Int'l Ass'n of Machinists & Aerospace Workers v. Haley, 832 F. Supp. 2d 612, 622 (D.S.C. 2011) ("In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also 'consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'") (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)).
2. Age Discrimination
The defendant argues that, taking the plaintiff's allegations as set forth in the complaint as true, he has failed to state a claim for age discrimination and retaliation under the ADEA. The undersigned agrees. As noted above, "the facts alleged 'must be enough to raise a right to relief above the speculative level' and must provide 'enough facts to state a claim to relief that is plausible on its face.'" Robinson, 551 F.3d at 222 (citation omitted). While a plaintiff is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002), "courts may look to the requirements of a prima facie case as a guide in assessing the plausibility of plaintiff's claim for relief." Craft v. Fairfax Cty. Gov't, C.A. No. 1:16cv86 (JCC/MSN), 2016 WL 1643433, at *4 (E.D. Va. Apr. 26, 2016) (citing Coleman v. Md. Ct. of App., 626 F.3d 187, 190 (4th Cir. 2010) (reciting elements of prima facie case under McDonnell Douglas en route to affirming dismissal for failure to state a claim)).
The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). To establish a prima facie case of disparate treatment on the basis of his age, the plaintiff must show: "(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action . . . ; and (4) that similarly-situated employees outside the protected class received more favorable treatment." Gerner v. Cty. of Chesterfield, 674 F.3d 264, 266 (4th Cir. 2012) (internal quotation marks and citation omitted). "To prevail on an ADEA . . . retaliation claim, a plaintiff must show that: (1) he engaged in protected conduct; (2) an adverse action was taken against him by the employer; and (3) there was a causal connection between the first two elements." Ullrich v. CEXEC, Inc., 709 F. App'x 750, 753 (4th Cir. 2017).
In his complaint, the plaintiff sets out no facts supporting his age discrimination and retaliation claims (see doc. 1). The complaint references attachments to the complaint, but those attachments also do not set out specific facts sufficient to state a claim for age discrimination and retaliation under the ADA. In his administrative charge, the plaintiff alleged that he made complaints about his younger co-worker (doc. 1-1 at 1), but it is unclear as to whether those complaints were regarding age discrimination. He alleged in his charge that he "believes" he was terminated because of his age (id.). Such allegations are conclusory and not entitled to an assumption of truth. Ashcroft, 556 U.S. at 681.
While amendment of the complaint could potentially cure the deficiencies in the age discrimination and retaliation claims under the ADEA, the plaintiff has been afforded an opportunity to do so and has failed to file an amended complaint. Accordingly, the motion to dismiss should be granted as to these claims for the reasons set forth above.
3. Fair Labor Standards Act
The plaintiff alleges a separate cause of action under the FLSA for "unfair and unequal workplace treatment," "unfair favoritism in the workplace," and "unethical practices in the workplace" (doc. 1 at 15). In an attachment to the complaint, the plaintiff alleges the following under the heading "Violation of Fair Labors Standards":
F. Other violations
1. Unlawful labor practices
2. Favoritism
3. Nepotism
4. Reverse Discrimination and special treatment to a disable employee
5. Favoritism and/or nepotism to a disable worker(Doc. 1-1 at 10).
6. Because of favoritism and/or nepotism it made the workplace a hostile environment
7. Sterotyping gender discrimination
8. Stressful workplace conditions
9. Allowing such unethical work ethics
10. Working off the clock to finish that days work just to be able/ready for the next day.
11. Retaliation
12. Abuse of Authority in the workplace.
The FLSA requires that covered employers pay covered nonexempt employees a "minimum wage." 29 U.S.C. § 206. Additionally, the FLSA generally mandates that covered employers pay covered nonexempt employees overtime pay "for a workweek longer than forty hours" at a rate "not less than one and one-half times the regular rate at which he is employed." Id. § 207. See Trejo v. Ryman Hosp. Properties, Inc., 795 F.3d 442, 448 (4th Cir. 2015) ("The FLSA requires payment of minimum wages and overtime wages only, and is unavailing where wages do not fall below the statutory minimum and hours do not rise above the overtime threshold.") (internal quotations and citation omitted). As argued by the defendant, none of the above-listed allegations (with the possible exception of No. 10, which will be discussed below, are actionable under the FLSA.
The plaintiff alleges in attachments to his complaint that he was required to work weekends and to "clock out and keep working to get the job done" (doc. 1-1 at 2-3). As the undersigned noted in the August 27th order, the plaintiff could possibly have a claim against the defendant for failure to pay overtime wages. However, the plaintiff has not alleged that he worked more than 40 hours per week and was not appropriately paid. The plaintiff was afforded an opportunity to amend his complaint to cure the identified deficiencies, and he failed to do so. Accordingly, the motion to dismiss should be granted as to the plaintiff's FLSA cause of action for the reasons set forth above.
4. Breach of Contract
The plaintiff asserts that the defendant's policies and procedures found in the Employee Handbook create a contract with him (doc. 1-1 at 20-23). He cites the following general policies from the defendant's Employee Handbook in support of his claim: Complaint Resolution Procedures, Program Participant Bill of Rights, Civil Rights, Support Rights, and Equal Employment Opportunity (id.).
South Carolina has long recognized the doctrine of employment at-will. See, e.g., Mathis v. Brown & Brown of S.C., Inc., 698 S.E.2d 773, 778 (S.C. 2010). Generally, an at-will employee may be terminated at any time for any reason or for no reason, with or without cause. Stiles v. Am. Gen. Life Ins. Co., 516 S.E.2d 449, 450 (S.C. 1999) (citation omitted). "Of course, an employer and employee may choose to contractually alter the general rule of employment at-will and restrict their freedom to discharge without cause or to resign with impunity." Prescott v. Farmers Tel. Co-op., Inc., 516 S.E.2d 923, 925 (S.C. 1999) (citation omitted). "'An employee handbook may create a contract altering an at-will arrangement.' " Brailsford v. Fresenius Med. Ctr. CNA Kidney Ctrs. LLC, C.A. No. 2:15-cv-4012-DCN, 2017 WL 1214337, at *6 (D.S.C. Apr. 3, 2017) (emphasis added in Brailsford) (quoting Nelson v. Charleston Cty. Parks & Rec. Comm'n, 605 S.E.2d 744, 747 (S.C. Ct. App. 2004)). "A handbook forms an employment contract when: '(1) the handbook provision(s) and procedure(s) in question apply to the employee, (2) the handbook sets out procedures binding on the employer, and (3) the handbook does not contain a conspicuous and appropriate disclaimer.' " Id. (quoting Grant v. Mount Vernon Mills, Inc., 634 S.E.2d 15, 20 (S.C. Ct. App. 2006)). "In order for a handbook to alter an employee's at-will status and create an employment contract, the employer must 'phrase the document's language in mandatory terms giving rise to a promise, an expectation and a benefit to an employee.' " Id. (quoting Nelson, 605 S.E.2d at 747). "Such language must be 'definitive in nature, promising specific treatment in specific situations.'" Id. (quoting Hessenthaler v. Tri-Cty. Sister Help, Inc., 616 S.E.2d 694, 698 (S.C. 2005)). "'When definite and mandatory, [such] procedures impose a limitation on the employer's right to terminate an employee at any time, for any reason.'" Id. (quoting Grant, 634 S.E.2d at 20).
Courts have found that typical anti-discrimination and anti-retaliation policies like those alleged by the plaintiff are insufficient to form a contract of employment. See Brailsford, 2017 WL 1214337, at *8 (dismissing claim for breach of anti-retaliation policy) (citing Frasier v. Verizon Wireless, C.A. No. 8:08-cv-356-HMH, 2008 WL 724037, at *2 (D.S.C. Mar.17, 2008) ("The Defendant's promises that 'everyone should feel comfortable to speak his or her mind' and that '[defendant] prohibits retaliation against employees who, in good faith, submit or participate in the investigation of any complaints' 'do[] not create an expectation that employment is guaranteed or that a particular process must be complied with before an employee is terminated.' "); King v. Marriott Int'l, Inc., 520 F. Supp. 2d 748, 756 (D.S.C. 2007) (finding that employer's promise "that 'there will be no discrimination or recrimination' against an employee who asserts a complaint against the Company" was insufficient to alter the employee's at-will employment status)). See also Hessenthaler, 616 S.E.2d at 698 ("Unlike a mandatory, progressive discipline procedure, a general policy statement of nondiscrimination does not create an expectation that employment is guaranteed for any specific duration or that a particular process must be followed before an employee may be fired.").
Furthermore, the language the plaintiff references in the defendant's policies and procedures does not guarantee the plaintiff employment for a specific duration, nor does it promise him that a particular process must be followed before he may be fired. In addition, none of the defendant's general policies cited by the plaintiff promise specific treatment in specific situations such that the plaintiff's at-will employment status was altered. Accordingly, his complaint fails to state a claim upon which relief can be granted for breach of contract.
As the undersigned noted in the August 27th order, amendment of the complaint could possibly cure the deficiencies identified above. The plaintiff was afforded an opportunity to amend his complaint, and he failed to do so. Accordingly, the motion to dismiss should be granted as to the plaintiff's breach of contract cause of action for the reasons set forth above.
5. Defamation
In his complaint, the plaintiff lists "defamation of character" as "Relief" (doc. 1 at 10). In an attachment to his complaint, he lists "defamation of character" as one of "[t]he reasons for [his] $7 million lawsuit" (doc. 1-1 at 7). To recover for defamation, the plaintiff must establish by a preponderance of the evidence "(1) a false and defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication." Fountain v. First Reliance Bank, 730 S.E.2d 305, 309 (S.C. 2012) (citation omitted).
In his complaint, the plaintiff fails to identify any individual who made a false statement regarding him, the content of the alleged false statements, and the identity of the third party to whom the alleged defamatory statements were published (see docs.1, 1-1). In his response to the motion to dismiss, the plaintiff alleges that the defendant's statements provided to the SCHAC and the EEOC were "factually untrue and simply unworthy of credence, and riddled with errors," and he alleges that such statements were "defamatory" and amounted to "character assassination" (doc. 28 at 12, 17-18). As argued by the defendant, the plaintiff has inappropriately attempted to expand his claim by raising new assertions in response to the motion to dismiss. See Smith v. Verizon Commc'ns, C.A. No. DKC 2006-3411, 2008 WL 11366423, at *4 n.2 (D. Md. July 31, 2008). Nonetheless, the new assertions also fail to state a claim as "any statements made by the [d]efendant to either the EEOC or the SCHAC during their investigation enjoy an absolute privilege under South Carolina law." Yin v. Columbia Int'l Univ., C.A. No. 3:15-3656-JMC, 2016 WL 5349090, at *7 (D.S.C. Sept. 26, 2016).
As the undersigned noted in the August 27th order, amendment of the complaint could possibly cure the deficiencies identified above. The plaintiff was afforded an opportunity to amend his complaint, and he failed to do so. Accordingly, the motion to dismiss should be granted as to the plaintiff's defamation cause of action for the reasons set forth above.
III. CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the plaintiff's Title VII and ADA claims should be dismissed for lack of subject matter jurisdiction, a defect the plaintiff cannot cure by amending his complaint. Further, the plaintiff's remaining claims should be dismissed for failure to state a claim. As set out above, by order issued August 27, 2018, the undersigned gave the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment. The plaintiff failed to file an amended complaint within the time provided. Accordingly, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, the undersigned recommends that the district court grant the defendant's motion to dismiss (doc. 18) and dismiss this action with prejudice. See Workman v. Morrison Healthcare, 724 F. App'x 280, 281 (4th Cir. June 4, 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, directing the district court on remand to "in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order") (citing Goode, 807 F.3d at 630).
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge September 17, 2018
Greenville, South Carolina
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
300 East Washington Street
Greenville, South Carolina 29601
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).