Opinion
Civil Action 6:22-955-HMH-KFM
03-17-2023
Jamie Manning, Plaintiff, v. Meridian Waste Holdings, LLC and Meridian Waste South Carolina, LLC, collectively d/b/a Meridian Waste, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the defendants' motion for summary judgment (doc. 36). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in employment discrimination cases and submit findings and recommendations to the district court.
I. BACKGROUND AND FACTUAL ALLEGATIONS
The plaintiff, an African American male, was hired by Ace Environmental ("Ace") as a roll-off driver in mid-2019 and worked at Ace's location in Greer, South Carolina (docs. 11, am. compl. ¶ 8; 36-3, Manning dep. 30:11-25). In February 2021, the defendants acquired Ace, as well as its equipment and personnel (docs. 36-3, Manning dep. 31:6-8; 36-7, 30(b)(6) dep. 14:5-12, 36:23-37:6). The plaintiff's job title and duties remained the same after the acquisition (doc. 36-3, Manning dep. 31:3-23). In May 2021, the defendants acquired another company, Eco Waste ("Eco"), which maintained a work site in Powdersville, South Carolina (docs. 36-7, 30(b)(6) dep. 49:8-12; 11, am. compl. ¶ 9). The defendants transferred its entire roll-off department, including the plaintiff, from its Greer location to the newly acquired Powdersville location in July 2021 (docs. 36-3, Manning dep. 31:9-23; 36-7, 30(b)(6) dep. 15:20-24). Also included in this transfer were Tyvon Junne ("Mr. Junne") and Angel Lopez ("Mr. Lopez"), roll-off drivers and “persons of color” (docs. 44 at 3; 44-1, Manning dep. 83:2-25).
The plaintiff testified that supervisors are responsible for assigning trucks to drivers (doc. 44-1, Manning dep. 81:12-14). However, Patrick Messinger ("Mr. Messinger"), the defendants' area president for South Carolina, testified as the defendants' 30(b)(6) witness and stated that following an acquisition, drivers typically continue to drive the same vehicle that they were driving at the time of the acquisition (doc. 36-7, 30(b)(6) dep. 8:2-3, 33:17-25). The plaintiff acknowledged in his deposition that when he moved to Powdersville, he thought that the trucks from Greer were sent there as well (doc. 36-3, Manning dep. 81:3-8). Moreover, Mr. Lopez testified in his deposition that when the employees moved to Powdersville, they drove the same trucks that they had been driving in Greer (doc. 44-2, Lopez dep. 19:8-24).
The plaintiff and Mr. Lopez noted that they were driving older trucks with numerous problems, but the defendants had newer and nicer Eco trucks sitting unused in Powdersville (docs. 44-2, Lopez dep. 19:11-20:20; 36-3, Manning dep. 80:1-82:22). Comparatively, the plaintiff and Mr. Lopez testified that newly hired Caucasian employees were assigned these newer and nicer trucks, while they, as well as Mr. Junne, continued to drive the older trucks (doc. 44-2, Lopez dep. 22:18-22, 28:10-13; 44-1, Manning dep. 152:1-21). Nevertheless, Mr. Junne testified that he drove an Eco truck at one point, but he stopped driving that truck after there were $30,000 in damages to the motor (doc. 51-3, Junne dep. 18:5-19:12). In addition, Prince Potts ("Mr. Potts"), a former mechanic, was asked in his deposition about what made him think that the assignment of trucks was discriminatory, and he testified that "[y]ou would think [trucks were assigned based on] seniority . . . [but i]t's far from that" (doc. 44-3, Potts dep. 39:8-12). Mr. Potts also testified that when he made repairs to the truck that the plaintiff was driving for the defendants, the defendants then sent the truck to Kentucky and "gave [the plaintiff] a crappy truck" (id. at 36:15-25). However, Mr. Messinger testified that the plaintiff's truck had mechanical issues on the day that he transferred to Powdersville, so the defendants assigned him an Eco truck from the Powdersville location (doc. 36-7, 30(b)(6) dep. 34:4-20). Mr. Messinger testified that the Eco truck was in better condition and was considered an upgrade from the truck that the plaintiff was previously driving (id. at 75:14-20).
The plaintiff asserts that Mr. Potts testified that Caucasian drivers were assigned nicer and newer trucks, while “Mexican or black” drivers were not given any priority and were “neglected” in the assignment of newer trucks (doc. 44 at 3). However, the plaintiff has not included these pages from Mr. Potts' deposition in the record, so the undersigned has not considered such statement herein (see doc. 44-3).
The defendants have attached an employee feedback form that the plaintiff completed in June 2021, approximately five months after he began working for the defendants (doc. 36-9 at 3-5). In response to the questions "What do you like about your job? What do like about working for Meridian Waste?," the plaintiff responded that "[t]he culture is changing from what Ace had established. [The defendants are] setting out to create a work environment that is fair for everyone involved" (id. at 3). The plaintiff confirmed in his deposition that he felt that the defendants were setting out to create a fair working environment (doc. 36-3, Manning dep. 74:7-75:1). In response to a question about what he did not like about his job, the plaintiff described issues with the trucks that he drove while employed by Ace and continued to use after the defendants acquired Ace, including the trucks' old age and maintenance problems (doc. 36-9 at 4). After receiving the plaintiff's employee feedback form, Mr. Messinger forwarded the plaintiff's feedback to one of the defendants' other employees and stated, "Attached is feedback from [the plaintiff], our best roll-off driver in Greer. . . . I wanted you to see this one first to see if we can move forward with getting Eco's spare trucks on routes quicker than we talked about yesterday" (id. at 2). The plaintiff testified in his deposition that the trucks at Eco were in better working condition and that Mr. Messinger was attempting to get the plaintiff access to a nicer truck (doc. 36-3, Manning dep. 72:16-73:7). The plaintiff also testified that he had a good working relationship with Mr. Messinger (id. at 120:14-17).
The plaintiff alleges that he made various complaints throughout his employment at the Powdersville location. Specifically, the plaintiff reported to Mr. Messinger about general maintenance that needed to be done on some of the roll-off vehicles (doc. 36-7, 30(b)(6) dep. 30:19-31:14). The defendants authorized the repairs and ensured that the maintenance staff had full approval to fix what was needed to be fixed (id.). The repairs that the plaintiff asked for were completed, and the truck remained assigned to him (id.).
Further, Mr. Lopez reported to Mr. Messinger that he heard an employee use the word “spic" when referring to Hispanic employees, which he explained is a “derogatory word . . . you would use for Mexicans or Puerto Ricans” (doc. 51-4, Lopez dep. 25:6-23). Mr. Messinger asked the plaintiff about this around August 2021, and the plaintiff confirmed that he had heard the word “wetback” used (docs. 44-1, Manning dep. 110:1-22; 37-7, 30(b)(6) dep. 63:19-64:3, 88:11-13).
Moreover, the plaintiff reported to a supervisor, whose name he could not remember, that trucks were not being assigned fairly (doc. 36-3, Manning dep. 106:2-107:1). The plaintiff could not remember if he reported that the truck assignments were unfairly assigned based on race, but he did think that the process was unfair because he had more years of experience than the newly hired employees who received nicer trucks (id. at 107:2-109:8). When further asked about whether he mentioned race in this conversation with his supervisor, the plaintiff stated as follows:
I don't recall the conversation in whole. I just remember telling him the process was not right. As far as specifically saying that, I can't recall that. In a - - I do recall in a way suggesting to him that that's why you're doing that. Not saying you're racist because you didn't, but I made sure that how it came across -- I know I made sure that how it came across that I let him know that that's what - - you know. But as far as me saying that, I can't remember the conversation in the whole and say, yeah, you know, that's exactly what I say.(Id. at 159:25-160:15).
The plaintiff also reported to Mr. Messinger that the trucks were being assigned unfairly (docs. 36-3, Manning dep. 113:19-25; 44-1, Manning dep. 155:1-18). The plaintiff testified as follows in his deposition:
Q. And then with respect to trucks, when you would talk to [Mr. Messinger] about the trucks, did you tell him that black employees were getting worse trucks than white employees?
A. I don't remember the full conversation. I don't remember the full conversation. But, you know, I just remember telling him about the trucks, you know.
Q. So you don't know if you ever mentioned to [Mr. Messinger] that black employees were getting worse trucks that white employees?
A. Huh-uh. I just recall telling him about, you know, that the way they was giving out trucks is not normal, you know. I - -that's - - I remember telling something about that, the process, the way - - that's all I really can remember, and I don't even know. Like I said, I don't know if I said that specifically, I just know, you know, generally, that's what I was telling him, you know.
Q. How was the process not normal?
A. I mean, if - - so if I'm working somewhere at the location for two years, and it's a better truck than I am driving and I have got more experience, I have been there longer, I know how to keep up a better - - a truck than - - you know, you would think - - I would think that you would, you know, put that good truck in the person's hands that's been there the longest. You know, you probably want - - you want to make them - - you know, you have been there for a while, you know, that's what I think is
normal, in my opinion, you would go based off seniority, experience, stuff like that.
Q. Okay. How many times did you complain to [Mr. Messinger] about the trucks?
A. About that the truck was in bad shape?
Q. Yes, sir.
A. From the point that Meridian took over?
Q. Yes, sir.
A. A lot.
Q. How many times, in those conversations, did you tell [Mr. Messinger] that specifically black employees were getting worse equipment than white employees?
A. I don't remember all those conversations.
Q. Okay. You allege in this lawsuit that you were discriminated against on the basis of your race; is that correct?
A. I told my story to my lawyer. They determined what it is, you know, but - -
Q. Well, let me ask you: Do you think that Meridian discriminated against you because you're black?
A. I feel like - - I guess when you say "discriminate," I - - I use the term that it's racist, you know. That's what I would use, you know, that's what I would use. That's what I use. But I just think that it was - - I don't know why they fired me. I don't know why they fired me.(Doc. 36-3, Manning dep. 114:25-115:24).
Moreover, later in the plaintiff's deposition, he testified as follows:
Q. Now let's talk about [Mr. Messinger]. Did you have - - I know you said you talked to [Mr. Messinger] about the trucks and how that was done. Did you ever mention race or racism in any of those conversations?
A. This conversation I had with [Mr. Messinger], I really can't remember everything, but I remember him saying he was - - he
said that, no they just got an ego. And I'm pretty sure my response - - I'm pretty sure, as far as - - as far as I can remember, I told him - - I was telling him that it was racist, and that's why he said it's ego. I can't really remember the whole conversation, like, put it all together, but I remember him saying, like, no, it's ego, because they said they wouldn't wear the Meridian uniforms, they wasn't ever going to put them on, they wasn't going to put Meridian on the trucks, that they wasn't going to comply to Meridian, you know.
...
Q. And so - - how did racism or race come into that conversation?
A. And that's when I was - - I - - I said that - - I said it like it's racist, like, you know, because, like I testified earlier, you would call it discrimination in something like that, from my perspective, I would just say it's racist. So, like I said, I can't actually remember everything, but for him to say it was ego, they just got an ego, it was in response to me saying that it was - - that they are racist.(Doc. 44-1, Manning dep. 155:1-156:22). Mr. Messinger testified in his deposition that the plaintiff never complained to him about race discrimination (doc. 36-7, 30(b)(6) dep. 76:3-15).
On September 8, 2021, while at a transfer station in Greer, the plaintiff backed into another company's truck, causing the windshield to crack and the frame of the truck to be dented (docs. 36-3, Manning dep. 84:15-85:1, 87:11-14; 36-11, payroll termination form and incident report; 36-7, 30(b)(6) dep. 18:12-22, 21:1-15). The plaintiff called Mr. Messinger a few minutes after the accident occurred, and Mr. Messinger advised the plaintiff to contact law enforcement (doc. 36-7, 30(b)(6) dep. 18:12-19:12, 21:1-15). Mr. Messinger testified that when an employee is involved in an accident, the defendants conduct a "holistic view and investigation following the accident" in determining whether to discipline the employee through additional safety coaching or employment termination (id. at 58:22-59:14). Mr. Messinger stated that he looks at what the employee reports happened, what is on the police report, damages, input from witnesses, and whether there was a risk of severe physical injury (id.). Mr. Messinger investigated the circumstances of the plaintiff's accident, including speaking with the plaintiff and the owner of the company whose truck the plaintiff backed into and reviewing the police report (id. at 21:1-23). Mr. Messinger decided to terminate the plaintiff's employment given the severity of the accident; that the plaintiff violated several of the defendants' policies for backing the truck; that the accident occurred at a transfer station, which is a high level of danger area; and that the truck that the plaintiff hit was occupied and there could have been severe harm to that driver (id. at 18:18-22, 21:3-13, 23:16-24:2).
The plaintiff contends in his response in opposition to the motion for summary judgment that he testified that the accident was caused by a known problem in that the truck would roll back when attempting to put the truck into gear due to the clutch malfunctioning (doc. 44 at 4-5) (citing doc. 44-1, Manning dep. 148:12-151:2). Moreover, he claims that he testified that the defendants were aware of this problem with the truck and that he reported to the defendants that the malfunctioning clutch was the cause of the incident (id.). However, again, the plaintiff has failed to include those cited portions of his deposition in the record, so the undersigned has not considered that testimony herein. Moreover, the defendants have included a portion of the plaintiff's deposition in which he testified that he did not remember talking to Mr. Messinger about his truck having a gear problem (doc. 36-3, Manning dep. 159:1-4).
The plaintiff was previously involved in another accident in a truck, for which he was not disciplined, where he took a tree limb down on a customer site and damaged the tarp arm of his truck (doc. 36-7, 30(b)(6) dep. 22:6-17).
The defendants have produced a copy of its handbook, which includes a section entitled “Employee Conduct and Work Rules” (doc. 36-2 at 13-14). This section provides a non-exhaustive list of improper conduct that could subject an employee to disciplinary action, up to and including immediate discharge (id.). Specifically, this section states that an employee may be discharged for failing to follow safety rules and regulations, as well as for failing to follow the procedures and guidelines set forth in the defendants' Safety and Loss Prevention Manual (“Safety Manual”) (id.). The plaintiff received a copy of the Safety Manual and signed an acknowledgment confirming the same (doc. 36-3, Manning dep. 59:12-60:1). The Safety Manual contains safety requirements for the defendants' employees, including policies relating to accidents (doc. 36-5 at 1-11). Specifically regarding backing up vehicles, the Safety Manual provides that “[a]ll employees must strive to eliminate and/or reduce the number of backing situations they encounter. Failure to do so may lead to immediately release from employment” (id. at 8). Moreover, the Safety Manual includes a list of 13 steps that an employee should use when backing, including scanning mirrors, being alert to changing conditions, and being ready to stop (id. at 7-8). The Safety Manual also contains a policy relating to safety while at transfer stations, which cautions drivers to be particularly careful while disposing of waste at these sites (id. at 10-11).
The plaintiff testified in his deposition that he could not recall what the driver of the other truck was doing at the time of the accident or if he checked all of his mirrors before he started backing (doc. 36-3, Manning dep. 95:3-16). Further, regarding his employment termination, the plaintiff testified as follows:
Q. Okay. Do you believe that your termination had anything to do with your race or color?
A. He said I got fired because of the accident, you know. I mean, I think those people - - I - - I just think it was just other instances. I think my situation was quite small to warrant that, you know, firing, so - -
Q. Okay. So do you believe your termination had anything to do with you being black?
...
A. I just know I got fired, you know. I just know I got fired for a small accident.
Q. And you believe do you believe that was because of your race?
...
A. I don't know why they fired me. I don't know, you know.(Id. at 99:15-100:8).
The defendants have produced information regarding their employees who have been involved in accidents since February 2021 (docs. 36-1 at 10-13; 50; 50-1). Five of the defendants' employees were involved in accidents and were not disciplined as a result (docs. 36-1 at 13; 50-1 at 9-10, 14-16, 30-32, 57; 36-7, 30(b)(6) dep. 78:6-84:20). All of these employees were African American (id.). Moreover, there have been nine instances where an employee was involved in an accident and disciplined as a result (docs. 36-1 at 10-12; 50-1 at 11-13, 17-29, 50-56, 58-61; 36-7, 30(b)(6) dep. 44:22-45:1, 47:9-51:22, 54:3-16, 56:1-57:24, 77:5-24, 79:17-81:20). All of the employees who were disciplined were at-fault in some way in the accident (see id.). Specifically, Employee A,an African American employee, was involved in an accident after servicing a frontload container (docs. 50-1 at 11-13; 36-7, 30(b)(6) dep. 77:5-24). Employee A had just set the container down and began backing up when he hit a car in his blind spot (id.). The driver of the car that Employee A hit was driving erratically, and Employee A received additional safety coaching (id.). Employee B, an African American employee, was approaching a frontload container in a tight parking lot when he sideswiped an unoccupied car (docs. 50-1 at 25-30; 36-7, 30(b)(6) dep. 79:17-80:5). Employee B received additional safety coaching (id.). Employee C, an African American employee, was using equipment incorrectly and in an unsafe way (doc. 50-1 at 58-61). Employee C damaged a company roll-off truck, and his employment was terminated (id.). Employee D, a Caucasian employee, was passing an unoccupied parked car at a transfer station and did not pull far enough forward (docs. 50-1 at 50-56; 36-7, 30(b)(6) dep. 44:22-45:1,80:10-15). When he backed up to the dump truck, he backed into the unoccupied parked car (id.). Employee D received additional safety coaching (id.). Employee E, a Caucasian employee, rear ended a car in front of him while he was hauling a compactor to a customer site (docs. 50-1 at 17-24; 36-7, 30(b)(6) dep. 47:9-21, 80:16-81:1). This vehicle was not Employee E's primary vehicle, and he received additional safety coaching and a final warning because of this incident (id.). However, Employee E's employment was later terminated in 2022 for causing an accident (id.). Employee F, a Caucasian employee, was turning right at an intersection when he hit another car that was in his passenger-side blind spot (docs. 50-1 at 2-8; 36-7, 30(b)(6) dep. 81:2-10). Employee F received additional safety coaching after this incident (id.). Employee G, a Caucasian employee, was servicing a frontload container when he backed into an unoccupied parked tractor (docs. 50-1 at 44-49; 36-7, 30(b)(6) dep. 50:23-51:22, 81:11-20). Employee G was driving a vehicle that he had never driven before, and he received additional safety coaching (id.). Employee G also rear ended the side of a pickup truck while driving between stops on his route (docs. 50-1 at 33-43; 36-7, 30(b)(6) dep. 54:3-16). The driver in front of Employee G slammed on his brakes before attempting to turn right off of the highway, and Employee G was unable to stop in time (id.). Employee G received additional safety coaching (id.). Employee H, a Caucasian employee, was pulling onto a customer site to get a container and hit an unoccupied parked car (doc. 36-7, 30(b)(6) dep. 56:1-57:24). Employee H's employment was terminated as a result of this accident (id.). Mr. Messinger testified in his deposition his reasons for why some of these employees were not disciplined, some received additional safety coaching, and some were terminated from employment (see id. at 44:22-45:1, 47:9-51:22, 54:3-16, 56:1-57:24, 77:5-24, 79:17-81:20).
The employees are referred to by pseudonyms to protect the privacy interests of these non-parties (see doc. 49).
The plaintiff filed an amended complaint on April 19, 2022, alleging claims for retaliation and race discrimination in violation of 42 U.S.C. § 1981 ("Section 1981") and Title VII of the Civil Rights Act of 1964, as amended ("Title VII") (doc. 11). The defendants filed a motion for summary judgment on January 6, 2023 (doc. 36), and the plaintiff filed a response on February 3, 2023 (doc. 44). On February 17, 2023, the defendants filed a reply (doc. 51). Accordingly, this matter is now ripe for review.
II. APPLICABLE LAW AND ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The 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.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (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 determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
B. Avenues of Proof
As stated, the plaintiff has brought claims for race discrimination and retaliation in violation of Title VII and Section 1981. Title VII prohibits employers from "discriminating] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race ... [,]" 42 U.S.C. § 2000e-2 ("the anti-discrimination provision"), as well as "discriminating] against [their] employees ... because [the employees] ha[ve] opposed any practice made an unlawful employment practice by [Title VII] ..." Id. § 2000e-3(a) ("the anti-retaliation provision"). Moreover, Section 1981 provides that "[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. 1981(a). The Supreme Court of the United States has interpreted this statute "to forbid all racial discrimination in the making of private as well as public contracts." Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 409 (1987) (citation and internal quotation marks omitted). "That prohibition extends to discrimination in private employment on the basis of race." Ali v. BC Architects Eng'rs, PLC, 832 Fed.Appx. 167, 170 (4th Cir. 2020) (citation and internal quotation marks omitted). "Thus, a person who experiences intentional race discrimination in private employment may pursue a federal remedy under § 1981." Id. at 170-71 (citation and internal quotation marks omitted).
A plaintiff has two avenues of proof to avoid summary judgment in discrimination and retaliation claims pursuant to Title VII or Section 1981. Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). The plaintiff may present direct or circumstantial evidence or proceed under the burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Id. There are three steps under the McDonnell Douglas framework:
(1) the plaintiff must first establish a prima facie case of employment discrimination or retaliation; (2) the burden of production then shifts to the employer to articulate a non-discriminatory or non-retaliatory reason for the adverse action; (3) the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the stated reason for the adverse employment action is a pretext and that the true reason is discriminatory or retaliatory.Id. (citations omitted). "It is left to the plaintiff's discretion whether to proceed by direct and indirect evidence or by means of the McDonnell Douglas burden-shifting framework[,]" Foster v. Univ. of Md.-E Shore, 787 F.3d 243, 249 (4th Cir. 2015), and here, the plaintiff proceeds under the McDonnell Douglas framework for all of his claims (doc. 44 at 6).
Application of McDonnell Douglas here is consistent with the Supreme Court's recent decision in Comcast Corp. v. Nat' Assn of African Am.-Owned Media, 140 S.Ct. 1009 (2020). See Gary v. Facebook, Inc., 822 Fed.Appx. 175, 180 (4th Cir. 2020). As the Court of Appeals for the Fourth Circuit has explained,
[In Comcast], the Court held that a § 1981 plaintiff must prove that race was a but-for cause of the plaintiff's injury and, by the same token, rejected the plaintiff's counterargument that McDonnell Douglas established a contrary “motivating factor” causation test. See id. at 1019. “Whether or not McDonnell Douglas has some useful role in § 1981 cases,” the Court declared, “it does not mention the motivating factor test” or “address causation standards.” Id. Rather, the Court characterized its decision in McDonnell Douglas as “a tool for assessing claims, typically at summary judgment, when the plaintiff relies on indirect proof discrimination.” Id. We find ourselves confronting such a claim here and, as such, continue to apply McDonnell Douglas.Id.
C. Discrimination
The plaintiff contends that he was discriminated against based on his race through (1) his employment termination and (2) the assignment of trucks (doc. 44 at 2).
1. Employment Termination
To establish a prima facie case of race discrimination based on the enforcement of employee disciplinary measures, a plaintiff must show that (1) he is a member of a protected class; (2) the prohibited conduct in which he engaged was comparable in seriousness to misconduct of employees outside the protected class; and (3) the disciplinary measures enforced against him were more severe than those enforced against those other employees. Thomas v. Delmarva Power & Light Co., 715 Fed.Appx. 301, 302-03 & n.1 (4th Cir. 2018). In evaluating whether a plaintiff has successfully established a prima facie case of discriminatory discipline, a district court should "compare only discipline imposed for like offenses," while keeping in mind that "the comparison will never involve precisely the same set of work-related offenses occurring over the same period of time and under the same sets of circumstances." Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993). Moreover, courts look to whether "the plaintiff and comparator dealt with the same supervisor, [were] subject to the same standards and ... engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Haynes v. Waste Connections, Inc., 922 F.3d 219 (4th Cir. 2019) (citations and internal quotation marks omitted). "The similarity between comparators and the seriousness of their respective offenses must be clearly established in order to be meaningful." Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir. 2008).
It is undisputed that the plaintiff is a member of a protected class. Moreover, the undersigned finds that a reasonable jury could conclude that the other employees who were at-fault in causing accidents, as described above, are valid comparators. While there certainly exists differences in each accident, no two accidents will be precisely the same. These employees were all drivers for the defendants in South Carolina and engaged in conduct that was comparable in seriousness to the plaintiff by being at-fault in causing an accident. Moreover, these employees were subject to the same policies, including the defendants' handbook and the Safety Manual.
The defendants, however, argue that the plaintiff cannot show that employees outside of the plaintiff's protected class were treated more favorably than him under circumstances similar to those surrounding his termination (doc. 36-1 at 20). The undersigned agrees. The plaintiff argues that he has shown that Caucasian employees were treated more favorably based on Employees D, E, and F (doc. 44 at 9-11). These employees caused accidents and were not terminated from employment but only received additional safety coaching. Although the record reveals that several Caucasian employees were not terminated for causing accidents, the record also shows that two Caucasian employees were terminated for causing accidents, and two African American employees only received additional safety coaching for causing accidents. Accordingly, the record before the court reflects that the defendants have imposed a range of discipline for this type of misconduct, undermining any inference that the plaintiff's employment was terminated because of his race.
The plaintiff also relies on Employee H (doc. 44 at 9-11). However, as discussed above, Employee H's employment was terminated for causing an accident.
The Court of Appeals for the Fourth Circuit addressed a similar situation in Cook v. CSX Transportation Corporation, 988 F.2d at 510-12, and affirmed a district court's finding that a plaintiff had failed to show that the disciplinary measures enforced against him were more severe than those enforced against other employees outside of his protected class, explaining as follows:
Although the record revealed that CSX treated one white employee with a relatively similar history of misconduct more favorably than Cook, it also showed that one white employee with a better disciplinary record than Cook was punished more severely, and another with a better record was treated about the same as Cook. . . . On the basis of all the disciplinary records presented, the district court correctly concluded that CSX imposed a range of discipline for Rule 500-type violations within which Cook's discharge fell and that therefore there was no disparity of treatment from which one could conclude that his discipline was a product of racial discrimination.
Cook contends that the district court erred in granting summary judgment because it failed to account for the one instance
when a white employee received less severe discipline for similar misconduct. We believe, however, that to focus on one piece of the record without considering the whole would distort the permissible inferences to be drawn. . . . A plaintiff seeking to establish a prima facie case by relying on a broad history of disciplinary enforcement cannot fairly claim that an inference of racial discrimination should be drawn from one factual circumstance taken out of the context of the disciplinary treatment generally afforded by the employer for conduct similar to the plaintiff. We find that the district court was correct to look to the entire record before making its decision, rather than seizing upon a particular piece of evidence contained within it.Id. at 511-12.
Likewise, here, the occurrence of Caucasian employees causing accidents and not being terminated from employment cannot be viewed in isolation and is insufficient to satisfy the third element of the plaintiff's prima facie case. See e.g., Smalls v. Richland Cnty. Recreation Comm'n, C/A No. 3:19-1741-PJG, 2020 WL 3037116, at *3 (D.S.C. June 5, 2020) (finding that a list of putative comparators included other females and African Americans, which undermined any inference that the defendant was motivated by either race or sex) (citing Barbara T. Lindemann, Paul Grossman & C. Geoffrey Weirich, Employment Discrimination Law 2-80 (5th ed. 2012) ("Proof that individual employees, both within and outside the protected class, were alternately favored and disfavored, without any observable pattern, also can dispel the inference that some protected characteristic was the basis on which the employer distinguished among them."); Gagne v. SAGE Fed. Credit Union, C/A No. 3:18-208-JMC-PJG, 2020 WL 2476651, at *5 (D.S.C. Jan. 30, 2020) (observing that Plaintiff's "apparent concession that [her employer] actually treated other unidentified but allegedly disabled employees - i.e., employees within her protected class - more favorably than her precludes any reasonable inference that Plaintiff's alleged disability (as opposed to poor performance) was the true reason for her termination"), R&R adopted by 2020 WL 1482401 (D.S.C. Mar. 27, 2020)). Therefore, the undersigned recommends that the district court grant the defendants' motion for summary judgment on this claim.
2. Assignment of Trucks
As an initial matter, the plaintiff contends that because the defendants did not address the plaintiff's race discrimination claim regarding the assignment of trucks but only his employment termination in their motion for summary judgment, their motion must be denied (doc. 44 at 6). However, because the defendants moved for summary judgment on all of the plaintiff's claims, addressed the plaintiff's allegations regarding the assignment of trucks in their motion, and addressed the plaintiff's arguments in the context of a race discrimination claim in their reply, the undersigned has considered the defendants' motion for summary judgment as it relates to this claim herein (see docs. 36-1; 51).
To establish a prima facie case of discrimination under Title VII and Section 1981, a plaintiff must show (1) membership in a protected class, (2) satisfactory job performance, (3) adverse employment action, and (4) different treatment from similarly situated employees outside the protected class, or there is some other evidence giving rise to an inference of unlawful discrimination. See Swaso v. Onslow Cnty. Bd. of Educ., 698 Fed.Appx. 745, 748 (4th Cir. 2017); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010); Sanders v. Tikras Tech. Sols. Corp., 725 Fed.Appx. 228, 229-30 (4th Cir. 2018).
The defendants argue that the manner in which they assigned the plaintiff's truck does not constitute an adverse employment action (doc. 51 at 4-6). "An adverse employment action is a discriminatory act that adversely affect[s] the terms, conditions, or benefits of the plaintiff's employment." Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (citation and internal quotation marks omitted); see also 42 U.S.C. § 2000e-2(a). The Fourth Circuit has recognized that not every personnel decision constitutes an actionable adverse employment action. See Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999) ("Congress did not intend Title VII to provide redress for trivial discomforts endemic to employment . . . ."); Page v. Bolger, 645 F.2d 227, 233 (4th Cir.1981) ("[T]here are many interlocutory or mediate decisions having no immediate effect upon employment conditions which were not intended to fall within the direct proscriptions of . . . Title VII."). "To qualify as an adverse employment action, the harm alleged must 'work a significant detriment' on a plaintiff." Brooks-Mills v. Lexington Med. Ctr., C/A No. 3:17-cv-01849-JMC, 2020 WL 5810518, at *9 (D.S.C. Sept. 30, 2020) (quoting Adams v. Ann Arundel Cty. Pub. Sch., 789 F.3d 422, 431 (4th Cir. 2015)). "Examples of an adverse employment action include a 'decrease in compensation, job title, level of responsibility, or opportunity for promotion.'" Felder v. MGMNat'lHarbor, LLC, C/A No. 20-2373, 2022 WL 2871905, at *1 (4th Cir. July 21,2022) (quoting James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371,376 (4th Cir. 2004)); see also Wilson v. City of Chesapeake, 290 F.Supp.3d 444, 457 (E.D. Va. Feb. 12, 2018) ("[A]bsent demotion, firing, or the failure to hire and promote, other adverse employment actions must generally impact an employee's pay, potential for continued employment, or likelihood of promotion within the organization.").
The plaintiff has failed to point to any case law supporting his position that the manner in which the defendants assigned trucks constituted an adverse employment action (see doc. 44 at 6). Moreover, the undersigned finds that the defendant requiring the plaintiff to drive the same truck that he was driving in Greer while he was employed in Powdersville is not an adverse employment action but rather the type of employment decision that was not intended to fall within the bounds of Title VII or Section 1981. See Wilson, 290 F.Supp.3d at 457 ("Simply because an employee finds a decision by her employer unappealing does not make that decision a qualifying adverse employment action"); e.g., Richardson v. Richland Cnty. Sch. Dist., 52 Fed.Appx. 615, 616 (4th Cir. 2002) (affirming a grant of summary judgment for an employer that assigned a plaintiff to what she considered an undesirable classroom, failed to give her a new computer, and denied her access to a classroom key because these actions did not amount to adverse employment actions); Tinkle v. Okla. Gas & Elec., 16 Fed.Appx. 815, 817 (10th Cir. 2001) (finding that an employer's refusal of plaintiff's requested truck assignment did not rise to the level of an adverse employment action under the Age Discrimination in Employment Act); Sealy v. State Univ. of N.Y. at Stony Brook, 408 F.Supp.3d 218, 226 (E.D.N.Y. 2019) (dismissing the plaintiff's Title VII discrimination claims based on allegations that the defendant, inter alia, transferred him to a more remote work location; denied him a key to a supply room; assigned him a vehicle that was frequently in the shop; and denied him new tools because these allegations did not constitute an adverse employment action); Hamilton v. Century Concrete, Inc., C/A No. 06-2263-JWL, 2007 WL 2010938, *6 (D. Kan. July 9, 2007) (finding that a plaintiff did not "show[] that his failure to receive a new, air-conditioned truck significantly changed his benefits or went beyond a mere inconvenience" in his race discrimination claim pursuant to Section 1981).
Based upon the foregoing, the undersigned recommends that the district court grant the defendants' motion for summary judgment on the plaintiff's race discrimination claims.
D. Retaliation
The plaintiff also contends that the defendants retaliated against him for his reports of racist activity by terminating his employment (doc. 44 at 2). To show a prima facie case of retaliation under Title VII or Section 1981, a plaintiff must show that (1) he engaged in protected activity; (2) his employer took adverse action against him; and (3) a causal relationship existed between the protected activity and the adverse employment activity. Guessous, 828 F.3d at 217. Protected activity includes "opposing] any practice made an unlawful employment practice by" Title VII ("opposition clause") and "ma[king] a charge, testifying], assisting], or participating] in any manner in an investigation, proceeding, or hearing under" Title VII ("participation clause"). 42 U.S.C. § 2000e-3(a). "Our cases hold that an employee's complaint constitutes protected activity when the employer understood, or should have understood, that the plaintiff was opposing discriminatory conduct. ” Burgess v. Bowen, 466 Fed.Appx. 272, 282 (4th Cir. 2012) (citing Richardson, 52 Fed.Appx. at 617).
The plaintiff submits that a genuine issue of material fact exists as to whether he engaged in protected activity because he told Mr. Messinger that he heard the word "wetback" used at work (doc. 44 at 12). The plaintiff does not assert whether he believes this action falls under the opposition clause or participation clause (see generally id.). Seemingly in regards to the opposition clause, the defendants assert that the plaintiff's response does not constitute protected activity because it was Mr. Messinger who proactively reached out to the plaintiff about "wetback" being used at work, and the plaintiff confirmed that he had heard it (doc. 52 at 10). The undersigned agrees that the plaintiff merely responding to Mr. Messinger's inquiry under these circumstances is insufficient to constitute opposition activity, as it is not activity in which the defendants should have understood as the plaintiff opposing discriminatory conduct. Rather, it was Mr. Lopez who brought this to Mr. Messinger's attention, and the plaintiff's response to Mr. Messinger's question is vastly different from staging a protest or voicing one's opinion to bring attention to an employer's discriminatory activity, such as through submitting a complaint. See McIver v. Bridgestone Ams., Inc., 42 F.4th 398, 411 (4th Cir. 2022) ("Opposition activities include staging informal protests and voicing one's opinions in order to bring attention to an employer's discriminatory activities.") (citation and internal quotation marks omitted). Moreover, the plaintiff has failed to point to any case law indicating that his response to Mr. Messinger's question constitutes opposition activity. Further, although not argued by the parties, the undersigned notes that the plaintiff's conduct would also not fall under the participation clause, as he has not pointed to any evidence in the record indicating that Mr. Messinger's investigation was an "investigation, proceeding, or hearing under [Title VII]", 42 U.S.C. § 2000e-3(a), as opposed to the defendants' own internal investigation. See Stennis v. Bowie State Univ., 716 Fed.Appx. 164, 167 (4th Cir. 2017) ("[E]very Court of Appeals to have considered th[e] issue squarely has held that participation in an internal employer investigation not connected with a formal EEOC proceeding does not qualify as protected activity under the participation clause.") (citation omitted); Johnson v. Portfolio RecoveryAssocs., LLC, 682 F.Supp.2d 560, 582-83 (E.D. Va. 2009) (granting summary judgment for the defendant on the plaintiff's Section 1981 retaliation claim because the plaintiff's participation in the defendant's internal investigation prior to his termination was not protected activity) (citing EEOC Guidance on Investigating, Analyzing Retaliation Claims, EEOC Compliance Manual Vol. 2, § 8-II, C.2 (retaliation for participation in strictly internal personnel investigation, i.e. investigations unconnected to statutory investigation or proceeding, is not protected "participation")).
The plaintiff also submits that he engaged in protected activity when he reported to Mr. Messinger that the trucks were being assigned in a racially discriminatory manner (doc. 44 at 12-13). However, repeatedly, the plaintiff was asked in his deposition if he complained to Mr. Messinger about the trucks being assigned unfairly based on race, and repeatedly, the plaintiff testified under oath that he could not remember. Further, the plaintiff subsequently testified that he told Mr. Messinger that the way trucks were assigned was not normal and that, to him, this meant that the trucks were not assigned based on seniority. It was only after the issue was pressed that the plaintiff changed his testimony to state that he was "pretty sure" and "as far as [he could] remember" he said that "it was racist" and Mr. Messinger responded that "it's ego," but he still expressed doubt and recognized that "[he] couldn't actually remember everything" (doc. 44-1, Manning dep. 155:1-156:22). The plaintiff also has not produced any evidence in support of his equivocal testimony that he may have mentioned race. Additionally, Mr. Messinger testified in his deposition that the plaintiff never complained to him about race discrimination.
The plaintiff has presented Mr. Lopez's deposition testimony, in which he was asked if the plaintiff ever complained to their supervisors about discrimination (doc. 44-2, Lopez dep. 32:20-33:7). Mr. Lopez answered that the plaintiff “told me he had a conversation with [Mr. Messinger] about what was going on” (Id.). However, in the cited excepts of his deposition, Mr. Lopez does not explicitly state what this conversation was about or that the conversation that the plaintiff had with Mr. Messinger involved a discussion of race discrimination (see id.). Regardless, even considering this testimony, the undersigned would still find that the plaintiff has failed to show a genuine issue of material fact regarding him engaging in a protected activity, for the reasons discussed herein.
The undersigned finds that the plaintiff's allegations are insufficient at this stage of the litigation. As set out above, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand a motion for summary judgment, and conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Anderson, 477 U.S. at 248, 252. Importantly, Title VII is not a "general civility code for the American workplace," Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998), and "making general workplace complaints is not protected activity." Fisher v. City of N. Myrtle Beach, C/A No. 4:11-cv-01726-RBH, 2013 WL 4018603, at *11 (D.S.C. Aug. 6, 2013) (citation and internal quotation marks omitted); see also McNair v. Comput. Data Sys., Inc., C/A No. 98-1110, 1999 WL 30959, at *5 (4th Cir. Jan. 26, 1999) ("Nonetheless, the "opposition clause," by its very terms, requires that the employee at least have actually opposed employment practices made unlawful by Title VII. That is to say, the clause protects opposition neither to all unlawful employment practices nor to practices the employee simply thinks are somehow unfair.") (emphasis in original); Yon v. Reg' Med. Cntr., C/A No. 5:14-2098-JMC-KDW, 2016 WL 11410314, at *14 (D.S.C. Feb. 10, 2016) ('"[Protected acts' must include communicating to [one's] employer the belief discrimination has taken place") (citation omitted); Christy v. City of Myrtle Beach, C/A No. 4:09-cv-1428-JMC-TER, 2012 WL 2149777, at *9 (D.S.C. Apr. 26, 2012) ("An employee can honestly believe [he] is the object of discrimination, but if [he] never mentions it, a claim of retaliation is not implicated, for an employer cannot retaliate when it is unaware of any complaints.") (citations and internal quotation marks omitted), R&R adopted by 2012 WL 2149780 (D.S.C. June 13, 2012); Wehunt v. R.W. Page Corp., 352 F.Supp.2d 1342, 1358 (M.D. Ga. 2004) ("It is not enough to simply complain in a racially neutral way about an employer's practices, and then expect the employer to speculate as to whether such complaints may be motivated by an employee's subjective and undisclosed belief that the employer was engaged in race discrimination."). Accordingly, the undersigned finds that the plaintiff has failed to present sufficient evidence to show a genuine issue of material fact regarding whether he engaged in protected activity. See, e.g., Wandji v. Wilkie, C/A No. 2:18-cv-03036-RMG-MGB, 2020 WL 7647552, at *28 n.37 (D.S.C. Nov. 9, 2020) ("[A]ny general complaints regarding Coxe's managerial style, including her allegedly unfair criticism of Plaintiff and threats of termination based on his work performance, do not constitute actionable protected activity under Title VII without mention of sex, race, or national origin."), R&R adopted by 2020 WL 7237922 (D.S.C. Dec. 9, 2020); Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 562 (D.S.C. 2013) (finding that an email containing allegations of unfair treatment, being spoken to in an unprofessional, disrespectful, and degrading manner, and being openly humiliated without mentioning discrimination was not protected activity); Christy, 2012 WL 2149777, at *9 ("The evidence in the record reveals that Plaintiff complained about being treated unfairly . . . but [she] has failed to present sufficient evidence to create an issue of fact as to whether she complained about an employment practice that she reasonably believed was unlawful under Title VII or the ADEA."). Further, because Section 1981 “affords no greater substantive protection than Title VII," the undersigned's discussion also disposes of the plaintiff's Section 1981 retaliation claim. See N.Y.C. TransitAuth. v. Beazer, 440 U.S. 568, 583 n.24 (1979); see Netter v. Barnes, 908 F.3d 932, & n.1 (4th Cir. 2018) (affirming a district court's grant of summary judgment to the defendant on the plaintiff's Section 1981 retaliation claim because the plaintiff failed to show that she engaged in protected activity under Title VII).
While there is evidence in the record that the plaintiff complained to a supervisor about the assignment of trucks, the plaintiff does not argue that this complaint was protected activity (see doc. 44). Moreover, similar to his complaints to Mr. Messinger, the plaintiff was unsure if he mentioned race in that complaint.
Nevertheless, it bears noting that even if the above actions constituted protected activity, the undersigned would still recommend that summary judgment be granted on the plaintiff's retaliation claims. The plaintiff has sufficiently shown the remaining elements of the prima facie case, as it is undisputed that the defendants took an adverse employment action against him by terminating his employment and the temporal proximity between him engaging in the supposed protected activity and his employment termination is sufficient to show a genuine issue of material fact regarding a causal connection. As noted by the plaintiff, he responded to Mr. Messinger's inquiry about "wetback" being used in August 2021 and complained to Mr. Messinger about the truck assignments after he was transferred to Powdersville in July 2021, and his employment was terminated on September 8, 2021. See Dawson v. Wash. Gas Light Co., C/A No. 19-2127, 2021 WL 2935326, at *8 (4th Cir. July 13, 2021) ("[T]emporal proximity can inform whether an inference of retaliation exists at the prima facie stage.") (citing Waag v. Sotera Def. Sols., Inc., 857 F.3d 179, 191-92 (4th Cir. 2017)); e.g., King v. Rumsfeld, 328 F.3d 145, 151 & n.5 (4th Cir. 2003) (finding that a two-and-a-half month gap between protected activity and an adverse employment action was sufficiently narrow to establish the causation prong of the prima facie case solely on the basis of temporal proximity).
However, the defendants have stated that they terminated the plaintiff's employment because of his accident, and the undersigned finds that the plaintiff has not shown that a reasonable jury could conclude that this reason was pretext for retaliation. Under both the plaintiff's Title VII and Section 1981 retaliation claims, the plaintiff must show but-for causation. See Comcast, 140 S.Ct. at 1019 ("To prevail, a plaintiff [bringing a claim under Section 1981] must initially plead, and ultimately prove that, but for race, [he] would not have suffered the loss of a legally protected right); Foster, 787 F.3d at 249 ("Unlike discrimination plaintiffs, retaliation plaintiffs are limited to traditional principles of but-for causation and must be able to prove that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.") (citation and internal quotation marks omitted). In other words, the plaintiff must show that" the desire to retaliate was the but-for cause of the challenged employment action." Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 900 (4th Cir. 2017) (citation and internal quotation marks omitted) (emphasis in original).
Here, the plaintiff does not dispute that he backed into a truck at a transfer station, causing damage. Moreover, there is evidence that the plaintiff violated the defendants' policies in causing such accident and that the policies provided that the failure to follow safety rules and regulations could result in immediate termination. Notably, as set out above, when the plaintiff was asked why his employment was terminated, he testified on multiple occasions that he did not know. The plaintiff argues that evidence of Caucasian employees being treated more favorably than him shows pretext (doc. 44 at 14). However, as discussed above, the record contains evidence of both African American and Caucasian drivers' employment being terminated for causing accidents, as well as African American and Caucasian drivers receiving only additional safety coaching. The plaintiff also argues that the defendants' failure to fully investigate the plaintiff's accident and instead immediately terminating his employment is evidence of pretext (Id. at 14-15). “While evidence of an obviously inadequate investigation into the employee's misconduct could tend to show that claimed employee misconduct was actually pretext for prohibited animus,” Villa, 858 F.3d at 905, Mr. Messinger testified that he spoke with the plaintiff, spoke with the owner of the company who owned the truck that the plaintiff backed into, and reviewed the police report. The undersigned finds that this is not such an “obviously inadequate investigation” to reflect pretext. The plaintiff further argues that the temporal proximity between the plaintiff engaging in the alleged protected activity and his employment termination is evidence of pretext (doc. 44 at 15-16). However, as recognized by the plaintiff, “temporal proximity, without more, does not support a finding of pretext.” Jones v. UnitedHealth Grp., Inc., 802 Fed.Appx. 780, 783 (4th Cir. 2020). Here, there is simply no evidence of “more.” Based on the foregoing, the undersigned finds that even if the plaintiff could show that he engaged in protected activity, his allegations are nevertheless insufficient to meet his burden of showing a genuine issue of material fact that his employment would not have been terminated but for the defendants' desire to retaliate. Accordingly, the undersigned recommends that the district court grant the defendants' motion for summary judgment on the plaintiff's retaliation claim.
III. CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, the undersigned recommends that the district court grant the defendants' motion for summary judgment (doc. 36).
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the next page.
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 250 East North Street, Suite 2300 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).