Opinion
Civil Action 7:21-cv-1782-TMC-KFM
09-07-2023
Eddie Stewart, Plaintiff, v. GES Recycling South Carolina, LLC, Defendant.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the defendant's motion for summary judgment (doc. 46). 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.
The plaintiff filed his original complaint in this action on June 14, 2021 (doc. 1) and an amended complaint on June 15, 2021 (doc. 5). In his amended complaint, the plaintiff alleges causes of action for hostile work environment, race discrimination based on denial of training and the opportunity to serve as a lead man, and retaliation for complaining of discrimination, all in violation of 42 U.S.C. § 1981 (“Section 1981”) (doc. 5, amend. comp. ¶¶ 13-27). The defendant filed a motion for summary judgment on April 6, 2023 (doc. 46). After requesting and receiving an extension of time, the plaintiff filed a response in opposition on May 2, 2023 (doc. 49). Also after requesting and receiving an extension of time, the defendant filed a reply in support of its motion for summary judgment on May 23, 2023 (doc. 52).
I. FACTS PRESENTED
The plaintiff, who is an African-American male, was hired by defendant GES Recycling South Carolina, LLC (“the defendant” or “GES”) in February 2017 as a driver (doc. 46-2, pl. dep. 45, 47; doc. 5, amend. comp. ¶¶ 4, 6). GES drivers are responsible for weighing the trucks containing metal scrap at the pickup location, driving the metal scrap to the GES facility, and then weighing the load at GES to confirm its weight (id. 45-49; doc. 46-6, Gordon decl. ¶ 4). Adam Gordon was the plaintiff's supervisor (doc. 46-2, pl. dep. 50). The plaintiff claims that GES employee Justin Yarbrough also was his supervisor because if Gordon was not there, “[Yarbrough] would tell us what our job was to do, what need to be done, what cans to dump, what can not to dump” and would sometimes text drivers to tell them “what lines you running and stuff like that” (id. 50, 53). According to the plaintiff, he knew Yarbrough “was a driver,” but the plaintiff “thought . . . he was higher up” (id. 53). During the plaintiff's employment, Gordon's title was Operations Supervisor/Operations Manager, and Gordon's direct supervisor was Rodolfo Baroja, Country Manager (doc. 46-6, Gordon decl. ¶¶ 2-3). Gordon testified in his declaration that Yarbrough at all times relevant to the plaintiff's employment was a driver and also performed foreman duties, but he did not have the ability to hire or fire an employee or otherwise alter the terms and conditions of an employee's employment and was not a supervisor or manager (id. ¶ 2).
GES is a subsidiary of GESCRAP, a multinational corporation engaged in the complete and sustainable recovery of waste materials (doc. 46-2 at 105, pl. dep. ex. 6).
The plaintiff testified that not long after he started with GES, Gordon told him that he should not “hang with” Jermaine Phillips and Kenrick Denning, African-American drivers for GES, because they had complained of racial discrimination (doc. 49-1, pl. dep. 87, 90-91).
The plaintiff testified that on June 13, 2017, he was standing against the wall playing a game on his phone prior to working the night shift when two African-American employees, Jabbar Smith and James Harris, walked up to the plaintiff, and the plaintiff gave them “the pound,” or a fist bump (doc. 49-1, pl. dep. 85, 136). The plaintiff testified that Gordon then walked up to him with his bottom lip poked out; “these guys lift weights, so he buffed up like he was a weightlifter like . . . and stuck his fist out” and tried to give the plaintiff a fist bump (id. 136). The plaintiff felt this was racially offensive conduct because Gordon was “trying to imitate them two black guys . . . with big bottom lips” (id. 86-87). Gordon did not make any racially derogatory comments during this interaction or at any other time with the plaintiff (id. 86, 91).
Later on June 13th while in the break room, Gordon instructed the plaintiff that his co-worker Matthew Robinson would be coming in two hours late and would “run the two slower lines” (doc. 46-2, pl. dep. 137). The plaintiff objected and asked why it mattered which employee performed which responsibility, and Gordon responded by asking if the plaintiff had been trained to operate the crane, which was equipment Gordon needed the other driver to operate (id.; doc. 46-4). The plaintiff responded, "Have you trained me to operate the crane motherfucker?" (doc. 46-2, pl. dep. 137). Gordon asked the plaintiff why he never came in on his days off to operate the crane, and the plaintiff responded that when he did, he ended up running his normal job (id.). The plaintiff told Gordon, "And I don't like being around all you motherfuckers like that 'cause they childish" (id.). The plaintiff complained that despite coming in on his days off as Gordon had told him to do in order to be trained on the crane, Gordon had not trained him but instead had put an employee who was hired after him operating the crane (id. 138-39). The plaintiff noted to Gordon that the crane had “been tore up three different times,” which indicated to the plaintiff that employee “must not be doing too good” (id. 138-39). Gordon walked out of the break room and went to his office (id. 137; doc. 46-4).
Gordon subsequently called the plaintiff on his cell phone and requested that the plaintiff come to his office (doc. 46-2, pl. dep. 137-38). When the plaintiff arrived, Gordon asked him to sit down, to which the plaintiff replied, “I don't feel like sitting down today, motherfucker” (id. 138; doc. 46-4). Gordon asked the plaintiff what his problem was, and the plaintiff replied that “he was tired of this bullshit place” (doc. 46-2, pl. dep. 146-47; doc. 46-2 at 128-29, pl. dep. ex. 7). The plaintiff then complained that “you got all those people running around here and calling people 'stupid niggers' and stuff, never ain't nothing been done about that” (doc. 46-2, pl. dep. 140). In his deposition, the plaintiff testified that he was referring to Yarbrough's comment to him that crane operator Danny Wayne Knox referred to some employees as “stupid niggers” (id. 62-66, 82-83). The plaintiff testified that he had never heard Knox use any racially derogatory terms toward the plaintiff personally (id. 62-63). The plaintiff further testified that he was the only individual present when Yarbrough allegedly made this comment and that he never complained to a supervisor or human resources until he mentioned it to Gordon on June 13th (id. 63, 70-71, 81; doc. 46-2 at 128-29, pl. dep. ex. 7).
In the response in opposition to the motion for summary judgment, the plaintiff's counsel states that during the “heated discussion” between the plaintiff and Gordon “both used profanity” (doc. 49 at 4) (citing doc. 49-1, pl. dep. 138-39). However, on the pages of the plaintiff's deposition that are cited, there was no indication of use of profanity by Gordon in the plaintiff's description of the discussion (see doc. 49-1, pl. dep. 138-39).
The plaintiff also told Gordon on June 13, 2017, that Yarbrough had showed the plaintiff a cartoon or meme containing the word “nigger” (doc. 46-2 at 128-29, pl. dep. ex. 7; doc. 46-2, pl. dep. 92-93). Specifically, the plaintiff testified that the cartoon showed a chicken with long legs in a basketball jersey with the following written over the top of it, “'I'd like to see a nigger' . . . something about a nigger catching that chicken” (doc. 46-2, pl. dep. 92; doc. 46-2 at 128-29, pl. dep. ex. 7). In his deposition, the plaintiff testified that this happened around a holiday, which he believed was Good Friday, April 14, 2017, and Yarbrough showed the cartoon to the plaintiff, Jabbar Smith, and Garnett Eision while they were on break (doc. 46-2, pl. dep. 84, 92-97). The plaintiff further testified that Yarbrough showed approximately five racist cartoons with a couple of them showing chickens, and he also showed a post from Facebook with a field full of white horses with one black horse in the middle, and Yarbrough said, “Everywhere you go there's a nigger” (id. 92, 95-96). The plaintiff told Gordon that, also on that same Good Friday, he and Eision, who also is African-American, got on the back of a truck Yarbrough was driving, and Yarbrough said, “Man, one of you all come and get in the front, I don't want to be looking like the nigger slave driver” (id. 66, 70; doc. 46-2 at 128, pl. dep. ex. 7; doc. 46-2 at 92, pl. dep. ex. 4).
The plaintiff's EEOC notes specifically referenced Good Friday, April 14, 2017, as the date when Yarbrough made racist comments and showed the plaintiff racist cartoons (doc. 46-2 at 92, 95-96, 98, pl. dep. ex. 4).
The plaintiff submitted as exhibit 3 to his response to the motion for summary judgment a cartoon showing a chicken with long legs and written above it, “Bet KFC won't catch this nigga . . . “ (doc. 49-3; see doc. 49 at 4). While the plaintiff has not cited supporting foundation testimony for this exhibit, the court has assumed for purposes of this motion that this was a cartoon shown by Yarbrough to the plaintiff.
The plaintiff also complained to Gordon on June 13, 2017, that he was denied the opportunity to operate the crane on the basis of his race, which prevented him from getting a raise (doc. 46-2, pl. dep. 120-130). According to the plaintiff's testimony, Danny Wayne Knox and his son Brandon, both of whom are white, often trained employees on the crane (id. 121-22). The plaintiff also testified that Robinson, Mack (Morrow), and Scott (Laws), all of whom are white, were trained on the crane (id. 121-22, 127). However, the plaintiff admitted that Phillips and Denning, both of whom, as noted above, are African-American, were also trained on the crane (id. 126; see also doc. 46-6, Gordon decl. ¶ 7; doc. 46-7, Garcia decl. ¶ 7). In his declaration, Gordon testified that Jabbar Smith, who is African-American, was also trained on the crane (doc. 46-6, Gordon decl. ¶ 7). The plaintiff testified that GES even sent Phillips and Denning to an outside training facility to train on the crane (doc. 46-2, pl. dep. 126-27). Further, the plaintiff admitted that Danny Wayne Knox, Brandon Knox, and Morrow had longer tenures with GES than he did (id. 124). The plaintiff is not aware of any other employee's history of crane training or experience, nor did the plaintiff have access to any other employee's personnel file (id. 156).
While the plaintiff could not remember the last names of the employees he identified as Mack and Scott, the defendant believes the plaintiff was referring to Mack Morrow and Scott Laws, who were employed as drivers at the time of the plaintiff's employment (doc. 46-7, Garcia decl. ¶¶ 5-6).
The plaintiff testified in his deposition that at some point during his employment at GES he asked Gordon and Yarbrough to be trained on the crane (doc. 46-2, pl. dep. 128, 131). According to the plaintiff, Gordon and Yarbrough responded that if the plaintiff came in for overtime on his days off, he could be trained on the crane, but when he did come in on his days off, he was always given his normal job to do (id. 128-129, 131). Gordon testified in his declaration that there was no specific procedure for training drivers on the crane, and a myriad of factors contributed to when and if a driver would be trained, including the skills of the driver, the work experience/machinery experience of the driver, the current workload of the facility, and customer needs and requests (doc. 46-6, Gordon decl. ¶¶ 5-6). If business needs allowed, the driver might be trained on the crane (id.). Gordon further testified that GES typically waited for a driver to be employed for several months or even up to a year before allowing them to train on the crane (id.). It was the plaintiff's belief that the crane operator position paid more money than the driver position (doc. 49-1, pl. dep. 121-22).
After the plaintiff made these complaints to Gordon on June 13, 2017, he told Gordon that “it's real fucked up how they run shit,” and Gordon asked the plaintiff what he was going to do and if he was going to quit (doc. 46-2 at 92, pl. dep. ex. 4). When the plaintiff responded, “No,” Gordon told the plaintiff to clock out, and the plaintiff asked if he was fired (id.). Gordon told the plaintiff that he was not fired, but he was suspended for the day (id.). The plaintiff asked how Gordon was going to fire him for telling Gordon what he asked the plaintiff to tell him (id.). When Gordon responded that there were always other options, the plaintiff responded, “What, motherfucker?” (id.). Gordon walked out of the office and called the other employee who was scheduled to work that shift and asked him to come in early (doc. 46-4). When the plaintiff continued questioning how he was getting suspended, Tiffany Robertson, an office employee, came out of the office and told the plaintiff to be quiet (doc. 46-2 at 92, pl. dep. ex. 4). The plaintiff told her to “stay the fuck out of it” (id.), and, according to Gordon, called Robertson a “bitch” (doc. 46-6, Gordon decl. ¶ 11). According to the plaintiff, Ander Garcia, who was at that time GES's Administrative Manager, then attempted to “calm [the plaintiff] down” and told the plaintiff to go home (doc. 46-2 at 92-93, pl. dep. ex. 4; doc. 46-2, pl. dep. 141). GES suspended the plaintiff for the remainder of the day (doc. 46-2, pl. dep. 151). The plaintiff testified that he was advised to call in on June 15, 2017, as that was his next scheduled shift, and, when he did, either Garcia or Rodolfo Baroja, GES's Country Manager, advised the plaintiff that he was still suspended and that the plaintiff would have to talk to someone from Spain (id. 152-53). Thereafter, Oscar Azkona, GES's Human Resources Manager, and Baroja decided to terminate the plaintiff's employment (doc. 46-7, Garcia decl. ¶¶ 11-12). On June 21, 2017, Garcia and Azkona met with the plaintiff and informed him, “We understand you had some concerns, but the way you talked to Adam [Gordon] is something this company cannot tolerate; and therefore, we have to terminate you" (doc. 46-2, pl. dep. 153-56).
The person referred to by the plaintiff in his deposition as “Adolpho” is Rodolfo Baroja (doc. 46-2, pl. dep. 45-46, 50, 52-53, 102, 106, 109, 139, 142, 149, 153; doc. 46-7, Garcia decl. ¶ 2).
The plaintiff did not remember Azkona's name and identified him as “that guy from Spain” who was present for the meeting on June 21st when the plaintiff was terminated from employment (doc. 46-2, pl. dep. 154).
GES's management investigated the plaintiff's allegations of racist comments by Yarbrough. Although Yarbrough denied using the word “nigger,” he admitted that he had used the term “slave driver” on one occasion in April 2017. GES issued Yarbrough a written warning on June 22, 2017 (doc. 46-3). In this letter, GES also informed Yarbrough that his behavior did not comply with the Handbook or the Code of Conduct and that any further conduct would result in more severe discipline (id.).
Although never mentioned during his employment or during the altercation with Gordon, the plaintiff testified in his deposition that on one occasion Yarbrough pointed to an oil spot on his arm and stated, “It's a black spot like you” (doc. 46-2, pl. dep. 64-65, 78-80; doc. 46-2 at 97, pl. dep. ex. 4). The plaintiff also testified that, on three separate occasions, Yarbrough's minor son used the term “sand nigger” in the break room (id. 67-77). According to the plaintiff, Danny Wayne Knox was present for at least two of the three alleged incidents; Knox denied hearing such racial slurs being used by Yarbrough's son or anyone else at GES (id. 68-70, 73-75; doc. 46-8, Danny Wayne Knox decl. ¶ 6). The plaintiff testified that he did not complain to anyone at GES regarding these alleged comments (doc. 46-2, pl. dep. 72, 75).
In the plaintiff's EEOC questionnaire, which is exhibit 4 to his deposition, the plaintiff listed this incident as occurring on June 2, 2017 (doc. 46-2 at 97, pl. dep. ex. 4).
The plaintiff testified that Yarbrough's son was “probably about 11 or 12” years old at the time he made the alleged comments (doc. 46-1, pl. dep. 67).
The plaintiff testified in his deposition that he was discriminated against due to an investigation regarding discrepancies in weights of scraps during the night shift. According to the plaintiff, at some point during his employment, GES noticed discrepancies in the recorded weights of the scraps transported from pickup locations to GES during the night shift (doc. 46-2, pl. dep. 100-11; doc. 46-7, Garcia decl. ¶ 8; doc. 46-6, Gordon decl. ¶ 4). Given the nature of how the scrap weighing worked, it was not unusual for there to be discrepancies in recorded weights (doc. 46-7, Garcia decl. ¶ 8; doc. 46-6, Gordon decl. ¶ 4). Investigating the cause of the issue and correcting it could include checking the scales, reviewing how employees were completing paperwork, and checking how scraps and trucks were being placed on the scale, among other things (doc. 46-2, pl. dep. 109-110; doc. 46-7, Garcia decl. ¶ 8; doc. 46-6, Gordon decl. ¶ 4). Investigating the cause of discrepancies was not necessarily accusing employees of wrongdoing (doc. 46-7, Garcia decl. ¶ 8; doc. 46-6, Gordon decl. ¶ 4).
The plaintiff admitted that there were in fact discrepancies with the weight tickets from his truck (doc. 46-2, pl. dep. 109-110). However, the plaintiff testified that when Country Manager Baroja observed a part of the plaintiff's shift as part of his investigation, Baroja specifically indicated that the plaintiff did not appear to be contributing to the problem (id. 108-110). At no point was the plaintiff accused of anything, nor was he disciplined in any way for the discrepancies regarding the night shift (id. 100-11). While the plaintiff alleges he discussed the alleged discrepancies, he did not complain about feeling that this investigation had to do with his race or the race of his colleagues (id. 111).
The policies in the GES Employee Handbook provide, in pertinent part:
GES supports an equal opportunity environment in all terms and conditions of employment including but not limited to recruiting, hiring, placement, training, promotion, transfer, demotion, compensation, training, leaves of absence, recall, layoff or termination and other benefits or conditions of employment without regard to race, color, . . . or any other status protected by state and federal law. . . .
Discrimination, harassment or offensive behavior because of a person's status of the above categories will not be tolerated and any Employee who violates this policy may be subjected to disciplinary action, up to and including, termination of employment.
Any Employee that believes he or she has been subject to any discrimination or unfair treatment must immediately report such discrimination to his or her supervisor or Human Resources Manager. . . .(Doc. 46-2 at 107-108, pl. dep. ex. 8). The policies further “prohibit any conduct by any Employee, customer or vendor which contributes to an intimidating or offensive work environment for any Employee and/or interferes with a person's ability to perform his or her job. . . .” (id. at 108).
The plaintiff's complaints to Gordon on June 13, 2017, were the first and only time he complained of racial discrimination during his employment with GES (doc. 46-2, pl. dep. 150). The plaintiff testified that he did not report the alleged incidents to human resources because the handbook that was provided to him did not provide any contact information for human resources (doc. 49-1, pl. dep. 119). He testified that he did not feel comfortable reporting the incidents to Gordon because Gordon warned him when he began working at GES not to hang out with the guys who complained about racial discrimination (id.).
In response to the motion for summary judgment, the plaintiff provided the declaration of Denning, who testified that Yarbrough and other white new hires were given advantages that African-American new hires of GES were not given, such as the opportunity to work on the first shift (doc. 49-2, Denning decl. ¶ 2). He further testified that he complained to Gordon and was later allowed to work the first shift (id.). He also testified that profanity was widely used by workers and management at GES (id. ¶ 4). Denning testified that “racial jokes and remarks were prevalent” during the time that he worked for GES, Gordon made racial remarks himself, and Gordon was present when racial remarks and jokes were made (id. ¶ 5). However, Denning did not describe the content of such alleged comments nor did he provide other factual information (id. ¶ 5). Denning testified that he let it be known that he did not appreciate the racial comments made in the workplace, and Gordon confronted him and told him that if he continued talking about racism that he would be fired (id. ¶ 6). Denning further testified that he had talked about the difference in the pay being offered to African-Americans, and Gordon told him that he needed to stop talking about the raises (id.). Denning testified that he resigned his position because of the discriminatory treatment (id. ¶ 7).
II. APPLICABLE LAW AND ANALYSIS
A. Summary Judgment Standard
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. Section 1981 Standard
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 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 (see doc. 49 at 5-12).
1. Hostile Work Environment
"To demonstrate . . . a racially hostile work environment, a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff's . . . race; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer." Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011) (citations and internal quotation marks omitted).
a. Statute of Limitations
The defendant first argues that all of the plaintiff's claims that are not associated with the plaintiff's termination of employment on June 21, 2017, including the plaintiff's hostile work environment claim, are barred by Section 1981's statute of limitations (doc. 46-1 at 10-11; doc. 52 at 2-3). “Hostile work environment claims under § 1981 are subject to a four year limitation period.” Guessous, 828 F.3d at 223 (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 291-92 (4th Cir. 2004)). As noted by the defendant, the majority of the plaintiff's allegations concern conduct that allegedly occurred on Good Friday, April 14, 2017. The plaintiff alleges that on that Dated: Yarbrough showed him racially offensive memes or cartoons and said “I don't want to look like the ‘nigger slave driver.'” The plaintiff further alleges that in April 2017, Yarbrough informed him that Danny Wayne Knox referred to certain employees as “stupid niggers” (doc. 46-2, pl. dep. 66-80; doc. 46-2 at 88-99, pl. dep. ex. 4). The plaintiff also alleges that on June 2, 2017, Yarbrough referred to an oil spot on his arm and stated, “It's a black spot like you,” or something similar and that toward the end of his employment Yarbrough's minor son used the word “sand nigger” in the break room on three occasions (doc. 46-2, pl. dep. 64-65, 78-80; doc. 46-2 at 97, pl. dep. ex. 4).The plaintiff filed his original complaint in this case on June 14, 2021 (doc. 1). The defendant argues that the hostile work environment claim is barred by the four-year statute of limitations and must be dismissed as it is undisputed that all of the alleged conduct occurred prior to the plaintiff's suspension on June 13, 2017, and thus more than four years prior to the filing of the original complaint (doc. 46-1 at 10-11; doc. 52 at 2-3).
In the response in opposition to the motion for summary judgment, the plaintiff's counsel recites in the statement of facts the allegation that the plaintiff was “falsely accused of stealing scrap material when in fact it was white employees who removed property” (doc. 49 at 3) (citing doc. 49-1, pl. dep. 100-102, 106-107). To the extent the plaintiff relies on this allegation in support of the hostile work environment claim, it also falls outside the limitations period. While the plaintiff did not testify regarding the date of the defendant's investigation regarding discrepancies between weights of scraps during the night shift, there is no indication in the plaintiff's deposition testimony that the investigation took place in his last few days of working for the defendant (doc. 46-2, pl. dep. 100-11). Accordingly, the investigation would have presumably taken place prior to June 13, 2017, which would be more than four years before his complaint was filed in this case on June 14, 2021 (doc. 1). Moreover, as argued by the defendant (doc. 52 at 6-7), there is no indication that the defendant's investigation of the discrepancies was based on race, and there is no evidence that the plaintiff was accused of stealing or reprimanded for any alleged discrepancies.
The plaintiff argues in response, however, that his hostile work environment claim is of a continuing nature (doc. 49 at 5-6). Specifically, the plaintiff contends that Gordon's “racially offensive conduct” on June 13, 2017, when he allegedly “ridiculed and mocked the appearance of three African-American men by poking out his bottom lip to ridicule their fat lips” is “sufficient to bring all of Plaintiff's claims within that four-year statute of limitations” (doc. 49 at 6). In Guessous, the Court of Appeals for the Fourth Circuit held that the Supreme Court's characterization of Title VII hostile work environment claims in National Railroad Passenger Corp. v. Morgan as “a single unlawful employment practice,” rendering the constituent acts forming that practice effectively indivisible, applied with equal force to hostile work environment claims under Section 1981. Guessous, 828 F.3d at 224 (citing Morgan, 536 U.S. 101, 116-17 (2002)). As the Fourth Circuit stated, “In determining whether an actionable hostile work environment claim exists, we look to ‘all the circumstances,' and ‘[p]rovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.' ” Id. at 222 (emphasis and alteration in original) (quoting Morgan, 536 U.S. at 116-17). Notably though, under the continuing violation doctrine, “incidents can only qualify as a part of the same hostile work environment claim if they are adequately linked-that is, if the incidents involve the same type of employment actions, occur relatively frequently, and are perpetrated by the same managers.” Mustafa v. lancu, 313 F.Supp.3d 684, 693 (E.D. Va. 2018). On the other hand, if an incident occurring before the limitations period has no relation to the other acts, then the employee cannot recover for the prior acts. Id. (citing Morgan, 536 U.S. at 120).
Here, the undersigned recommends that the district court find that Gordon's alleged conduct on June 13, 2017, is insufficient to salvage the plaintiff's hostile work environment claim and bring it within Section 1981's statute of limitations under the continuing violation doctrine. Specifically, as argued by the defendant, the alleged conduct by Gordon does not contribute to the plaintiff's hostile work environment claim (doc. 52 at 2-3). Viewing the evidence in a light most favorable to the plaintiff, the court will assume for purposes of this motion that on June 13, 2017, after two of the plaintiff's African-American co-workers walked by the plaintiff and gave him a fist bump, Gordon walked up to the plaintiff with his bottom lip poked out, “buffed up like he was a weightlifter like . . . and stuck his fist out” and tried to give the plaintiff a fist bump (doc. 49-1, pl. dep. 85-87,136). The plaintiff felt this was racially offensive conduct because Gordon was “trying to imitate them two black guys . . . with big bottom lips” (id. 86-87). However, the plaintiff admitted that Gordon made no racial or derogatory comments whatsoever when this allegedly occurred (id.). Nothing in the record - other than the plaintiff's own interpretation of Gordon “poking out” his lips - suggests that the conduct was based on race. Moreover, the plaintiff has made no effort to show any relation between this alleged conduct by his supervisor Gordon and the alleged prior racist comments outside the limitations period by the plaintiff's co-worker Yarbrough and Yarbrough's son. Based upon the foregoing, summary judgment should be granted to the defendant on the plaintiff's hostile work environment claim.
In the response in opposition to the motion for summary judgment, the plaintiff's counsel states that the plaintiff “complained on the very day that he was suspended that he was subjected to racially offensive conduct by a manager, Adam Gordon, who ridiculed a mocked the appearance of three African-American men by poking out his bottom lip to ridicule their fat lips” (doc. 49 at 6). However, no citation to supporting evidence that the plaintiff complained of this conduct is provided. Moreover, the defendant maintains that the allegation was not made until the plaintiff's deposition (doc. 52 at 2 n.1).
b. Status of Alleged Harasser
The defendant further argues that even if the hostile work environment claim is not barred by the statute of limitations, the conduct alleged by the plaintiff cannot be imputed to it. The undersigned agrees. Other than the alleged conduct by Gordon on June 13th, which the plaintiff has not shown was based on race, every allegation the plaintiff makes to establish his hostile work environment claim regards the alleged conduct of Yarbrough and Yarbrough's minor son. Under the fourth element of a prima facie case as set fourth above, the plaintiff must prove that the alleged racial harassment by these individuals was imputable on some basis to GES. However, different standards apply depending on whether the alleged harasser was a co-worker or a supervisor:
The status of the harasser . . . is relevant to element four of a hostile work environment claim, which necessitates proof that the harassment is imputable to the employer. On the one hand, “[i]f the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions.” Vance v. Ball State Univ., __ U.S. __, 133 S.Ct. 2434, 2439 (2013); see also Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th Cir.2003) (en banc) (“[T]he employer may be liable in negligence if it knew or should have known about the harassment and failed to take effective action to stop it.”). On the other hand, where the harasser is the victim's supervisor, “different rules apply”: The employer is
strictly liable for the supervisor's harassing behavior if it “culminates in a tangible employment action,” but otherwise “may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.” Vance, 133 S.Ct. at 2439 (citing Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765). The Ellerth/Faragher defense, in essence, imposes a duty on the victim to report her supervisor's harassing behavior to the employer. See Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 268 (4th Cir. 2001) (discussing “employee's reporting requirement” under Faragher and Ellerth ). Relatedly, a plaintiff seeking to impute liability to her employer for harassment by a co-worker may not be able to establish the employer's negligence if she did not report the harassment. See Vance, 133 S.Ct. at 2453 (recognizing that evidence relevant to negligence inquiry would include evidence that employer “failed to respond to complaints”); id. at 2464 (Ginsburg, J., dissenting) (“An employee may have a reputation as a harasser among those in his vicinity, but if no complaint makes its way up to management, the employer will escape liability under a negligence standard.”).Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 278 (4th Cir. 2015) (parallel citations omitted).
The Supreme Court of the United States has held:
[A]n employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”Vance v. Ball State Univ., 570 U.S. 421, 431 (2013) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
Throughout his response in opposition to the motion for summary judgment, the plaintiff refers to Yarbrough as a supervisor (doc. 49 at 3, 4, 9). However, the evidence submitted by the plaintiff in support is solely the following: “Plaintiff testified that Yarborough served as supervisor and provided instructions to employees, gave them work loads, told them when to come in and was treated as a part of management by Adam Gordon” (id. at 4) (citing doc. 49-1, pl. dep. 50-54). The plaintiff has forecasted absolutely no evidence tending to show that Yarbrough was empowered by GES to take tangible employment actions against the plaintiff - or any other employee for that matter. Moreover, Gordon testified that at all times relevant to the plaintiff's employment Yarbrough was a driver and performed some foreman duties, but he was not a supervisor or manager (doc. 46-6, Gordon decl. ¶ 2). Gordon specifically testified, “Yarbrough did not have the authority to hire or fire an employee, nor did he have the authority to alter the terms or conditions of an employee's employment” (doc. 46-6, Gordon decl. ¶ 2; doc. 52-2, Gordon 2nd decl. ¶ 7). Thus, while the plaintiff conclusorily contends that Yarbrough was a supervisor, viewing the evidence before the court in a light most favorable to the plaintiff, Yarbrough at most provided instruction to the plaintiff and other drivers. Accordingly, the co-worker standard applies, and GES may be liable “if it knew or should have know about the harassment and failed to take effective action to stop it.” Ocheltree, 335 F.3d at 333-34 (citations omitted). Further, for an employer to be liable for the conduct of a third party, such as Yarbrough's minor son, a similar standard applies: an employer may be “liable [for the actions of a third party] if it knew or should have known of the harassment and failed to take appropriate actions to halt it.” Freeman v. Dal-Tile Corp., 750 F.3d 413, 419 (4th Cir. 2014) (internal quotation marks and citation omitted).
The plaintiff contends in his response to the motion for summary judgment that Gordon, who was the plaintiff's supervisor, was present “on some occasions” (doc. 49 at 8) when Yarbrough made racist comments. However, the plaintiff either cites no evidence in support of the argument (id. (“Plaintiff's evidence also shows that Adam Gordon was present on some occasions but took no corrective action.”), 9 (“Adam Gordon himself was present on some of those occasions and took no actions to condemn the behavior, thereby ratifying the actions of Yarborough and others.”)), or the cited deposition pages do not support the assertion of fact made (id. at 4 (“He did not report the matter to Adam Gordon because Gordon was present.”)) (citing doc. 49-1, pl. dep. 117-19). See Fed. R. Civ. P. 56(e) (“Failing to Properly Support or Address a Fact”). Elsewhere in the response, the plaintiff states:
In the deposition pages cited, the plaintiff testified that he did not go to Gordon to complain about discrimination prior to June 13, 2017, because when the plaintiff started work for GES, Gordon told him not to hang around with guys who complained about racial discrimination (doc. 49-1, pl. dep. 119). Nowhere on the cited pages does the plaintiff testify that Gordon was present when the racially offensive conduct alleged by the plaintiff took place.
He heard white employees make comments repeatedly such as "nigger," "slave," "sand niggers," "faggots," "black-ass," "stupid niggers" and "nigger slave." These comments were made by his co-workers, often in the presence of supervisors and managers. No action was taken to address the inappropriate conduct. Not only did white employees make racist remarks, they often circulated racially offensive cartoons in the workplace, all with management's knowledge.(Doc. 49 at 2-3) (citing doc. 49-1, pl. dep. 64-76, 78, 85-89, 92-95). However, the plaintiff's testimony on the pages cited does not support the assertions made in the response to the motion for summary judgment. Nowhere on these pages does the plaintiff testify that GES managers, supervisors, or specifically Gordon were present when any of the racist comments were made or the racially offensive cartoons were shown (see doc. 49-1, pl. dep. 64-76, 78, 85-89, 92-95). See Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may consider other materials in the record.”).
To the extent the plaintiff may attempt to rely on the declaration of Kenrick Denning to support the claim that Gordon was present when racially offensive comments were made or racially offensive cartoons were shown by Yarbrough, the declaration does not support the plaintiff's claims because it provides mere conclusions and vague allegations without any factual information (doc. 52 at 5-6; see doc. 49-2, Denning decl. ¶ 5 (“Adam Gordon was often present when Yarb[]rough made racist remarks.”)).
Based upon the evidence before the court, GES did not know and could not have known about Yarbrough's conduct until June 13, 2017, the date on which the plaintiff testified that he first complained of racial discrimination to Gordon (doc. 46-2, pl. dep. 150). GES has presented evidence that it promptly investigated the plaintiff's complaints and issued Yarbrough a written warning on June 22, 2017 (doc. 46-3). In this letter, GES also informed Yarbrough that his behavior did not comply with the Handbook or the Code of Conduct and that any further conduct would result in more severe discipline (id.). Moreover, the evidence before the court is that the plaintiff did not complain about the alleged conduct of Yarbrough's son until his deposition in this lawsuit (doc. 46-2, pl. dep. 72-75). Based upon the foregoing, summary judgment on the hostile work environment claim should be granted.
To the extent that the plaintiff contends that GES knew or should have known about Yarbrough's son's conduct because Danny Wayne Knox was a supervisor or a member of management and was allegedly present for at least two of the three alleged incidents when Yarbrough's son used the term “sand nigger” (doc. 46-2, pl. dep. 68-70, 73-75), the plaintiff has presented no evidence supporting this argument. Rather, Knox testified in his declaration that he was a crane operator and was not in a supervisory role during the plaintiff's employment (doc. 46-8, Knox decl. ¶ 1).
The defendant also argues that the plaintiff cannot show that the alleged harassment was sufficiently severe or pervasive to alter the plaintiff's conditions of employment (doc. 46-1 at 12-13). Because the undersigned recommends that summary judgment be granted on the hostile work environment claim for the reasons discussed above, this argument will not be addressed herein.
2. Race Discrimination
In his race discrimination cause of action, the plaintiff alleges that he was denied opportunities for training and promotion based on his race (doc. 5, amend. comp. ¶ 19). Specifically, as noted in his response to the motion for summary judgment, the plaintiff testified that he told management that he had heavy equipment experience when he applied for the driver position, and he was told that if he demonstrated skills, he would be given an opportunity to train and to promote (doc. 49 at 10; see doc. 49-1, pl. dep. 128). The plaintiff argues that he “was never given that opportunity, despite the fact that he saw white employees who were hired after him be allowed to work on the crane and to obtain training” (doc. 49 at 10).
First, as noted with regard to the plaintiff's hostile work environment claim, the defendant argues that all of the plaintiff's claims that are not related to his termination of employment - including his failure to promote claim - are barred by the applicable statute of limitations (doc. 46-1 at 10-11; doc. 52 at 3). In his response to the motion for summary judgment, the plaintiff does not address the statute of limitations argument with regard to the failure to promote claim (doc. 49 at 10). The plaintiff has failed to provide any evidence that he asked to be trained on the crane and was denied the opportunity after June 14, 2017. This is also consistent with the fact that the plaintiff was suspended from June 13, 2017, until his termination of employment on June 21, 2017. As noted, the plaintiff filed his original complaint in this case on June 14, 2021 (doc. 1). Thus, the plaintiff's failure to promote claim is barred by Section 1981's four-year statute of limitations.
The defendant further argues that the plaintiff cannot satisfy the elements of a prima facie failure to promote claim. The undersigned agrees. To establish a failure to promote race discrimination claim, the plaintiff must show that (1) he is a member of a protected group; (2) he applied for the promotion; (3) he was qualified for the promotion; and (4) GES failed to promote him under circumstances that give rise to an inference of unlawful discrimination. Austin v. Boeing Co., C. A. No. 2:20-cv-1142-RMG, 2021 WL 5904114, at *2 (D.S.C. Dec. 14, 2021) (citing Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005)).
While the plaintiff testified that it was his “belief” that being trained on the crane meant that a driver received more pay (doc. 49-1, pl. dep. 121-22), both Gordon and Danny Wayne Knox testified that drivers did not necessarily receive increased pay or title promotion because they were trained on the crane (doc. 46-6, Gordon decl. ¶ 6; doc. 46-8, Danny Wayne Knox decl. ¶ 4; doc. 46-5, driver/crane operator pay schedule). They further testified that, for a driver, being trained on the crane merely meant that employee could use the crane to clear piles of scrap that were in the way or perform other similar tasks (doc. 46-6, Gordon decl. ¶ 6; doc. 46-8, Danny Wayne Knox decl. ¶ 4).
Moreover, the plaintiff has not shown that GES failed to promote him under circumstances that give rise to an inference of unlawful discrimination. In his response in opposition to the motion for summary judgment, the plaintiff asserts that when he came in on his days off to work on the crane, no one “offered” to teach him how to operate the crane (doc. 49 at 2). However, nothing in the record supports the contention that he was not trained on the crane due to any racially discriminatory animus. No one at GES told the plaintiff he could not be trained on the crane, and it is clear from the record that sometimes business needs dictated when and if an employee could be trained on the crane (doc. 46-6, Gordon decl. ¶ 6; doc. 46-8, Danny Wayne Knox decl. ¶ 3). Further, the plaintiff is not aware of any other employee's history of crane training or experience, he did not have access to any other employee's personnel file, and he admitted that Danny Wayne Knox, Brandon Knox, and Morrow, white employees who were trained on the crane, had longer tenures with GES than he did (doc. 46-2, pl. dep. 124, 156). Further, the plaintiff admitted that Phillips and Denning, both of whom are African-American, were trained on the crane (id. 126; see also doc. 46-6, Gordon decl. ¶ 7; doc. 46-7, Garcia decl. ¶ 7), and Gordon testified that Jabbar Smith, who is African-American, was also trained on the crane (doc. 46-6, Gordon decl. ¶ 7). In addition, while the plaintiff claims in his response in opposition to the motion for summary judgment that “a white male who had no experience with the company was hired off the street and provided with the crane operator position“ (doc. 49 at 2) (citing doc. 49-1, pl. dep. 64), the page of the plaintiff's deposition that is cited does not provide support for this statement.
Based upon the foregoing, the undersigned recommends that summary judgment be granted to the defendant on the plaintiff's race discrimination claim.
3. Retaliation
Lastly, the plaintiff alleges that his termination from employment was in retaliation for raising complaints regarding race discrimination in his altercation with Gordon on June 13, 2017 (doc. 5, amend. comp. ¶¶ 23-24). To prevail on a retaliation claim under Section 1981, the plaintiff must show: (1) he engaged in protected activity (2) he suffered an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. Boyer-Liberto, 786 F.3d at 281 (stating retaliation elements for Title VII and § 1981 are the same).
The defendant argues that the plaintiff cannot satisfy a prima facie case because he cannot show a causal link between any alleged protected activity and his termination of employment (doc. 46-1 at 18-19; doc. 52 at 10-12). The undersigned disagrees based on the close temporal proximity between the plaintiff's complaints to Gordon regarding racial slurs in the workplace and the plaintiff's suspension that day and termination of employment several days later. King v. Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003) (“[T]hat his termination came so close upon his filing of the complaint gives rise to a sufficient inference of causation to satisfy the prima facie requirement.”).
Here, defendant GES has shown a legitimate, nonretaliatory reason for suspending and later terminating the plaintiff's employment: as set forth in detail above, on June 13, 2017, the plaintiff admittedly called his supervisor, Gordon, a “motherfucker” numerous times and referred to GES as a “bullshit place.” Thereafter, the plaintiff was suspended for the day, and his employment was terminated several days later. Thus, the burden shifts back to the plaintiff to show that the defendant's reason was pretext for retaliation.
At the pretext stage, the plaintiff must show that retaliation was the but-for cause of the challenged adverse employment action. Foster v. Univ. of Md.-Eastern Shore, 787 F.3d 243, 252 (4th Cir. 2015). However, as noted by the plaintiff, to meet this burden, he need not show that retaliation was the sole cause for his termination of employment (doc. 49 at 11-12). As the Fourth Circuit has explained:
Retaliation claims . . . require the employee to show “that retaliation was a but-for cause of a challenged adverse employment action.” Foster, 787 F.3d at 252; see Nassar, 133 S.Ct. at 2533 (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e-2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”). The Supreme Court has recently reiterated that a cause need not work in isolation to be a but-for cause. Burrage v. United States,
- U.S. -, 134 S.Ct. 881, 888 (2014) (“Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.”).Guessous, 828 F.3d at 217 (parallel citations omitted).
The plaintiff argues that there is a genuine issue of material fact as to whether the altercation with and use of profanity toward Gordon was the basis for his termination of employment or whether his complaints of racial harassment and discrimination were the but-for cause. Specifically, the plaintiff notes his own testimony that Gordon warned him when he first went to work for GES that he should stay away from two African-American employees - Phillips and Denning - who had previously raised complaints about racial discrimination (doc. 49 at 11; see doc. 49-1, pl. dep. 87, 90-91). Further, the plaintiff notes Denning's testimony that he had complained regarding racial comments made in the workplace at GES (doc. 49 at 11; see doc. 49-2, Denning decl. ¶ 6). Gordon denies telling the plaintiff that he should not associate with Phillips and Denning or anyone else because they lodged complaints of racial discrimination, and he denies being aware of any such complaints of discrimination made by Phillips or Denning (doc. 52-2, Gordon 2nd decl. ¶¶ 2-3). The plaintiff also notes Denning's testimony that profanity was widely used at GESby workers and management (doc. 49-2, Denning decl. ¶ 4). Clearly, issues of material fact remain. “Put simply, '[t]o survive summary judgment [the plaintiff] need not squarely rebut his employer's explanation[s]. Instead, [he] must cast sufficient doubt upon the genuineness of the explanation to warrant a jury's consideration of possible alternative and discriminatory motives for the firing.'” Harris v. Wormuth, C. A. No. JKB-18-3562, 2022 WL 899953, at *9 (D. Md. Mar. 28, 2022) (quoting Guessous, 828 F.3d at 217-18). The plaintiff has done so here. Accordingly, the undersigned recommends that summary judgment be denied on the plaintiff's retaliation claim.
The plaintiff also relies on Denning's testimony regarding Gordon's statement when Denning complained about racist comments being made in the workplace (doc. 49 at 11; see doc. 49-2, Denning decl. ¶ 6 (“Adam Gordon confronted me and told me that if I continued talking about racism that I would be fired.”)). The defendant argues summarily in its reply that “to the extent that Denning's declaration discusses Denning lodging complaints or other hearsay, such evidence cannot support Plaintiff's claims” (doc. 52 at 4) (case citations omitted). See Fed. R. Civ. P. 56(c)(4) (stating that a declaration used to oppose a motion must set out facts that would be admissible in evidence); Fed.R.Evid. 801-805 (hearsay rules). The plaintiff did not respond to the defendant's hearsay argument in his response in opposition to the motion for summary judgment (see generally doc. 49). As neither party has fully briefed the issue, the undersigned has not considered Denning's testimony as to Gordon's statement in considering the retaliation claim. Regardless, the undersigned finds that issues of material fact remain on the retaliation claim.
III. CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the defendant's motion for summary judgment (doc. 46) should be granted in part and denied in part as set forth above.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following pa
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).