Frazier v. Repass et al

Filing 112

ORDER re 104 REPORT AND RECOMMENDATION re 98 MOTION for Summary Judgment filed by David Repass, Karol Seiler, Regina Davis, Salvation Army DHQ, Regina Kelly, Angela Repass, Melissa Smith, 97 MOTION for Summary Judgment filed by David Repass, Karol Signed by Honorable J Michelle Childs on 06/27/2013. (dlyo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Erma Frazier

)
)
Plaintiff,
)
v.
)
)
Angela Repass, Melissa Smith,
)
Regina Kelly, Karol Seiler, Davis
)
Repass, Salvation Army DHQ,
)
Regina Davis
)
)
Defendants.
)
___________________________________ )

Civil Action No. 1:11-cv-03356-JMC
OPINION AND ORDER

This matter is before the court for review of the Magistrate Judge's Report and
Recommendation (“Report”) [Dkt. No. 104] regarding Defendants’ Motions for Summary
Judgment [Dkt. Nos. 97 and 98] on Plaintiff Erma Frazier’s (“Frazier”) complaints1 alleging
employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et. seq. (“Title VII”) and the Age Discrimination in Employment
Act, 29 U.S.C. §§ 621 et. seq. (“ADEA”). The Magistrate Judge recommends denying
Defendants’ motions on the grounds that the motions are unsupported by citations to evidence in
the record. See FED. R. CIV. P. 56(c)(1). Defendants have submitted an Objection to the Report
and Recommendation (“Objection”) [Dkt. No. 110].

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Frazier, proceeding pro se and in forma pauperis, filed the instant action (“Frazier I”) and
subsequently filed two related actions, 1:12-cv-882, “Frazier II,” and 1:12-cv-883, “Frazier III”.
Upon a motion by Frazier, this court consolidated Frazier I, Frazier II, and Frazier III. [Dkt. No.
95]. Prior to consolidation, Defendants filed identical motions for summary judgment in Frazier
II and Frazier III, which attempted to address all of Frazier’s claims. No dispositive motions
were filed in Frazier I.
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The Magistrate Judge’s Report and Recommendation is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. “The Court is
not bound by the recommendation of the magistrate judge but, instead, retains responsibility for
the final determination.” Wallace v. Hous. Auth., 791 F. Supp. 137, 138 (D.S.C. 1992) (citing
Matthews v. Weber, 423 U.S. 261, 271 (1976)). The court is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objections
are made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge’s
recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
“In 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,
315 (4th Cir. 2005) (quoting FED. R. CIV. P. 72 advisory committee's note). Objections to the
Report and Recommendation must be specific. Failure to file specific objections constitutes a
waiver of a party’s right to further judicial review, including appellate review, if the
recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91,
94 & n.4 (4th Cir. 1984).
The Magistrate Judge in this case recommends denying the motions for summary
judgment on the grounds that most of Defendants’ allegations include no citations to the record
and those that do include citations cite to materials that are not in the court’s record. Rule 56(c)
of the Federal Rules of Civil Procedure requires that
A party asserting that a fact cannot be or is genuinely disputed must support the assertion
by:
(A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other
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materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine
dispute . . .
FED. R. CIV. P. 56(c)(1). The Magistrate Judge is correct that Defendants’ motions fail to meet
this standard. However, Rule 56(e) gives the court the discretion to give a party that “fails to
properly support an assertion of fact or fails to properly address another party’s assertion of fact
as required by Rule 56(c) . . . an opportunity to support or address the fact.” FED. R. CIV. P.
56(e)(1). As the advisory committee notes to this subsection explain:
[S]ummary judgment cannot be granted by default even ... when an attempted response
fails to comply with Rule 56(c) requirements.... Before deciding on other possible action,
subdivision (e)(1) recognizes that the court may afford an opportunity to properly support
or address the fact [that was improperly supported]. In many cases this opportunity will
be the court's preferred first step.
FED. R. CIV. P. 56 advisory committee’s note, 2010 amendments.
The court is mindful of the fact that the motions deadline has long since passed in this
case and that trial looms. However, the court also notes that Defendants’ Objection is essentially
an updated summary judgment motion with the required citations and the documents that
constitute the record.2 It appears that Defendants made no substantive changes to the arguments
presented in the original summary judgment motions. The court notes further that Frazier has
already responded to Defendants’ previously filed motions and has properly attached evidence
and citations thereto which she believes tend to rebut Defendants’ assertions.
Therefore, in the interest of justice and efficiency, the court ACCEPTS the Magistrate
Judge’s Recommendation with the modification that Defendants’ Motions for Summary
Judgment [Dkt. Nos. 97 and 98] be denied without prejudice. Defendants may re-file the

2

Clearly, Defendants’ submission was not a proper objection to the Magistrate Judge’s Report.
To the extent Defendants have articulated any objection to the Report at all, it can only be
considered a general objection to the entirety of the Report. “General objections to a magistrate
judge's report are tantamount to a failure to object.” Smith v. Nuth, 98 F.3d 1335 (4th Cir. 1996).
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contents of the submission previously filed as Defendants’ Objection [Dkt. 110] as a renewed
motion for summary judgment.

Defendants may not add or subtract anything from their

submission in re-filing. This filing must be done by 11:00 PM on Friday, June 28, 2013. The
court will further allow Frazier an additional opportunity to supplement her response, if she
wishes, by July 10, 2013, to dissipate any potential prejudice. The Magistrate Judge is directed
to make a recommendation on the renewed motion as soon as is feasible after July 10, 2013.
IT IS SO ORDERED.

United States District Judge
June 27, 2013
Greenville, South Carolina

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