Sims v. Windstream Communications Inc et al

Filing 23

ORDER adopting 21 Memorandum and Recommendations; granting 17 Motion to Dismiss filed by Leslie Herrell, Adam Covington, Jennifer Buck, Josh Imhoff, Sue Intiner. Signed by District Judge Max O. Cogburn, Jr on 11/19/2011. (Pro se litigant served by US Mail.) (tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11cv308
LASHONDA SIMS,
Plaintiff,
Vs.
WINDSTREAM COMMUNICATIONS,
INC., et al.,
Defendants.
_______________________________

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ORDER OF
PARTIAL DISMISSAL

THIS MATTER is before the court on review of a Memorandum and
Recommendation issued in this matter. In the Memorandum and Recommendation, the
magistrate judge advised the parties of the right to file objections within 14 days, all in
accordance with 28, United States Code, Section 636(b)(1)(c). Plaintiff has filed her
“Response to ‘Recommendation for Dismissal’” (#22), which the court will deem to be
plaintiff’s objection.
The Federal Magistrates Act of 1979, as amended, provides that “a district court shall
make a de novo determination of those portions of the report or specific proposed findings
or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Camby v. Davis,
718 F.2d 198, 200 (4th Cir.1983). However, “when objections to strictly legal issues are
raised and no factual issues are challenged, de novo review of the record may be dispensed
with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Similarly, de novo review is not
required by the statute “when a party makes general or conclusory objections that do not
direct the court to a specific error in the magistrate judge’s proposed findings and
recommendations.” Id. Moreover, the statute does not on its face require any review at all

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of issues that are not the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149 (1985);
Camby v. Davis, 718 F.2d at 200. Nonetheless, a district judge is responsible for the final
determination and outcome of the case, and accordingly the court has conducted a careful
review of the magistrate judge’s recommendation.
The court has read the objection and the attachments. In the objection itself, plaintiff
points to no error of law or fact of Honorable David S. Cayer, United States Magistrate
Judge, in recommending dismissal of the individual, non-employer defendants. Instead, she
argues the merits of her claim against her employer. Such argument has no bearing on the
recommendation of Judge Cayer as he did not recommend that the claim against Windstream
Communications, Inc., be dismissed.
The court has also considered the two attachments to the objection, which appear to
be a copy of a right to sue letter and an unsigned statement by plaintiff dated November 16,
2011. The right to sue letter has no bearing on the recommendation. In the statement,
plaintiff details events she contends transpired during her employment that predicate this
civil action. Neither of the attachments, however, direct the court to a specific error in Judge
Cayer’s proposed findings and recommendations. Read in a light most favorable to plaintiff,
such pleading amounts to a general objection as it does not contain any specific objection to
the recommendation of Judge Cayer.
In any event, the court has carefully reviewed Judge Cayer’s recommendation and
finds it wholly consistent with current case law, which prohibits employment discrimination
claims from being brought under Title VII against anyone other than one’s employer. Lissau
v. Southern Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998). The court determines that
the recommendation of the magistrate judge is fully consistent with current law. Based on
such determination, the court will affirm the Memorandum and Recommendation and grant
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relief in accordance therewith.

ORDER
IT IS, THEREFORE, ORDERED that the Memorandum and Recommendation
(#21) is AFFIRMED, the individual defendants’ Motion to Dismiss (#17) is GRANTED,
and the Amended Complaint is DISMISSED with prejudice as to defendants Jennifer Buck,
Josh Imhoff, Leslie Harrell, Sue Intihar, and Adam Covington.1

Signed: November 19, 2011

1

The court notes that plaintiff failed to include Mr. Covington in her Amended
Complaint, and explains such omission in her objection; however, in an abundance of caution,
the court has granted his motion inasmuch as Mr. Covington still appears as a defendant on the
court’s docket.
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