Williams v. Wal Mart Stores et al

Filing 77

ORDER accepting the 13 Report and Recommendation and summarily dismissing Plaintiff's 9 Amended Complaint as to Defendants David Zilenski, William Joey, Delinda Butler, and Michael Adams. Signed by Honorable J. Michelle Childs on 12/21/2017. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Ronnie Williams, P.O. Box 1038, Aiken, SC
29802,
Plaintiff,

)
)
)
)
v.
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)
Wal Mart Stores, c/o Mendelson, GSO 2301 )
McGee St., 8th Floor, Kansas City, MO 64108; )
David Zilenski, Store Manager; William Joey, )
Shift Lead Manager; Delinda Butler, Shift
)
Lead Manager; Michael Adams, Asst.
)
Manager No. 4487,
)
)
Defendants.
)
_____________________________________ )

Civil Action No.: 1:17-cv-00734-JMC

ORDER

Plaintiff Ronnie Williams, proceeding pro se, filed an employment discrimination
Complaint pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§
2000e, et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et
seq. (ECF No. 1.)
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02, the matter was
referred to United States Magistrate Judge Paige J. Gossett for pre-trial handling. On May 19,
2017, the Magistrate Judge issued a Report and Recommendation (“Report”) recommending that
the court summarily dismiss Plaintiff’s Complaint as to Defendants David Zilenski, William
Joey, Delinda Butler, and Michael Adams without issuance and service of process because these
individuals are not “employers” pursuant to Title VII or the ADEA. (ECF No. 13 at 3.) This
review considers Plaintiff’s Objection to Report and Recommendation (“Objections”), filed on
May 25, 2017. (ECF No. 18.) For the reasons set forth herein, the court ACCEPTS the
Magistrate Judge’s Report. The court thereby summarily DISMISSES Plaintiff’s Amended

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Complaint (ECF No. 9) as to Defendants David Zilenski, William Joey, Delinda Butler, and
Michael Adams without issuance and service of process.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts viewed in the light most favorable to Plaintiff are discussed in the Report. (See
ECF No. 13.) The court concludes, upon its own careful review of the record, that the Magistrate
Judge’s factual summation is accurate and incorporates it by reference. The court will only recite
herein facts pertinent to the analysis of Plaintiff’s Objections.
On March 17, 2017, Plaintiff, who is African American, alleges the named Defendants in
his Complaint discriminated against him based on his age, race, and color. (ECF No. 1 at 5.) On
April 19, 2017, Plaintiff filed an Amended Complaint for employment discrimination and
retaliation claim pursuant to Title VII and the ADEA. (ECF No. 9 at 5.) Plaintiff further alleges
that he was terminated in retaliation for informing his employer’s ethics office about its
discriminatory actions. (Id.) On May 19, 2017, the Magistrate Judge issued an Order authorizing
the issuance and service of process of Plaintiff’s Amended Complaint on Defendants. (ECF Nos.
14, 32.) In this Order, the Magistrate Judge construed Plaintiff’s Amended Complaint as raising
claims pursuant to Title VII for unlawful termination based on race or color and for unlawful
retaliation, as well as claims pursuant to the ADEA for discrimination and retaliation. (ECF No.
32.) The Magistrate Judge further determined that “[n]o other claims are being construed . . . as
having been raised by Plaintiff in this action at this time.” (Id.) Plaintiff did not file any motion
or other document regarding the court’s construction of the Amended Complaint. (Id.)
In the Amended Complaint, Plaintiff indicates that he filed a Charge of Discrimination
with the Equal Employment Opportunity Commission (“EEOC”) and that he received a Notice
of Right to Sue letter, but did not include either document as an attachment to his Amended

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Complaint.1 (ECF No. 9 at 3.) In the Charge of Discrimination, Plaintiff alleges discrimination
based on race, color, retaliation, and the Equal Pay Act. (ECF No. 27-3 at 2.)
II. STANDARD OF REVIEW
The Magistrate Judge’s Report 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 Magistrate Judge makes only a
recommendation to this court. The recommendation has no presumptive weight. The
responsibility to make a final determination remains with this court. See Matthews v. Weber, 423
U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those
portions of the Report 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).
Objections to a Report and Recommendation must specifically identify portions of the
Report and the basis for those objections. Fed. R. Civ. P. 72(b). “[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, 316 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note). Failure to timely file specific written
objections to a Report will result in a waiver of the right to appeal from an Order from the court
based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright
v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984).

If the plaintiff fails to properly object because the objections lack the requisite

specificity, then de novo review by the court is not required.

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  The court observes that Defendants provided the court with a copy of Plaintiff’s Charge of

Discrimination. (See ECF No. 27-3 at 2.)
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As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments
that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
III. DISCUSSION
Plaintiff’s Objections lack the requisite specificity required by Federal Rule of Civil
Procedure 72(b). In his Objections, Plaintiff merely asserts that he made “the ethics department
know of the ongoing practices” and its “discrimination of race, color, and age” against him.
(ECF No. 18 at 1-2.) Plaintiff states that his work environment was very hostile and he was later
fired as a result of this action. (Id.) Because Plaintiff failed to properly object to the Report with
specificity, the court does not need to conduct a de novo review and instead must “only satisfy
itself that there is no clear error on the face of the record in order to accept the recommendation.”
Diamond, 416 F.3d at 315. The court does not find clear error and accepts the Report by the
Magistrate Judge.
IV. CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report and
Recommendation of the Magistrate Judge and the record in this case, the court ACCEPTS the
Report and Recommendation of the Magistrate Judge (ECF No. 13). It is therefore ordered that
Plaintiff’s Amended Complaint (ECF No. 9) as to Defendants David Zilenski, William Joey,
Delinda Butler, and Michael Adams is summarily DISMISSED without issuance and service of
process.

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IT IS SO ORDERED.

United States District Judge
December 21, 2017
Columbia, South Carolina

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