Hobek v. Boeing Company, The

Filing 33

ORDER AND OPINION adopting 24 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting 6 Motion to Dismiss. Further details set forth in Order. Signed by Honorable Richard M Gergel on 7/19/2017.(ssam, )

IN THE UNITED ST ATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

William Hobek,
Plaintiff,
V.

The Boeing Company,
Respondent.

Case No 2:16-cv-3840-RMG

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ORDER AND OPINION

This matter is before the Court on the Report and Recommendation ("R. & R.") of the
Magistrate Judge (Dkt. No. 24) recommending that the Court grant Defendant's partial motion to
dismiss (Dkt. No. 6). For the reasons set forth below, this Court adopts the R. & R. as the order
of the Court. Defendant' s partial motion to dismiss (Dkt. No. 6) is granted.
I.

Background

In his Complaint, Plaintiff alleges causes of action based on age discrimination under the
Age Discrimination Employment Act ("ADEA") and wrongful termination in violation of public
policy. (Dkt. No. 1-1.) The Magistrate has provided a thorough summary of the alleged facts in
the R. & R. (Dkt. No. 24 at 1-2), so the Court need not repeat them here. Essentially, Plaintiff
alleges that he was disciplined and terminated due to his age and in retaliation for his complaints
about quality and safety.
II.

Legal Standard - Magistrate's Report and Recommendation

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with
making a de nova determination of those portions of the R. & R. to which specific objection is

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made. Fed. R. Civ. P. 72(b)(2). Additionally, the Court may "accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge."

28 U.S.C. §

636(b )(1 ). If the plaintiff fails to file any specific objections, this 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." See Diamond v. Colonial Life & Accident Ins.

Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted).
III.

Discussion
In the R. & R. , the Magistrate recommended that this Court grant Boeing's motion to

dismiss Plaintiffs claim for wrongful termination in violation of public policy because (1)
Plaintiff had an existing statutory remedy to pursue his claims under the Wendell H. Ford Air
and Investment Reform Act for the 21st Century ("AIR21"), 49 U.S.C. § 42121; and (2) Plaintiff
has not alleged facts which show a violation of a clear mandate of public policy. The Magistrate
explained that while an at-will employee may have a cause of action in tort for a wrongful
termination that violates a clear mandate of public policy, the public policy exception does not
apply in cases where Plaintiff could avail himself of an existing statutory remedy. (Dkt. No. 24 at
4.)
Although Plaintiff has argued that his complaints related to both safety and quality so
were not adequately covered by the AIR21 statutory remedy, the Magistrate found that, in the
aircraft context, safety and quality are one and the same. In response to Plaintiffs argument that
the AIR21 statutory remedy is only available to individuals who had made a report within the
AIR21 framework. , the Magistrate explained that Plaintiffs failure to exercise his rights under
AIR21 does not create a cause of action in federal court. (Dkt. No. 24 at 7.) Finally, the

Magistrate explained that Plaintiff did not identify any specific law that he was required to break

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as a condition of employment or how his termination was illegal, so he has not alleged facts that
support invocation of the public policy exception to at-will employment. (Dkt. NO. 24 at 8-9
The document filed by Plaintiffs counsel as Objections to the Magistrate's R. & R. (Dkt.
No. 29) is in fact an almost verbatim copy of Plaintiffs Response to Defendant's Motion to
Dismiss (Dkt. No. 13.) Pages 1-8 of the Objections are copied directly from Plaintiffs response
to the motion to dismiss (Dkt. No. 13) with the sole addition of the legal standard for a district
Court's review of the Magistrate's R. & R. Pages 9 and 10 of the Objections are a verbatim copy
of factual allegations from Plaintiffs complaint. (Dkt. No. 1-1 at 12-13.) Only the final two
paragraphs of Plaintiffs twelve pages of Objections have not been copied and pasted from prior
pleadings. (Dkt. No. 29 at 10-11.) In those paragraphs, Plaintiffs argues that "The Defendant
interfered with the Plaintiffs position as a quality inspector and refused to allow the Plaintiff to
do his job as a Quality inspector. The Plaintiff reported those refusals of the Defendant. The
Plaintiff was terminated in retaliation for his refusal to pass planes that did not meet guidelines as
established by the Federal Government and Boeing." (Dkt. No. 29 at 10-11.) This argument is a
paraphrased version of the argument advanced by Plaintiffs counsel in Plaintiffs Response to
Defendant's Motion to Dismiss. (Dkt. No. 13 at 14-15.)
The United States District Court for the Western District of Virginia once had the
opportunity to review Objections to a Magistrate's Report and Recommendation that were
copied directly from prior pleadings and determined that this practice does not constitute specific
written objections so is not entitled to de novo review:

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A general objection such as that offered by Plaintiff fails to satisfy the
requirements of Rule 72(b) and 28 U.S .C. § 636(b)(l)(C). See United States v.
Midgette, 478 F.3d 616, 621 - 22 (4th Cir.2007) (" Section 636(b)(l) does not
countenance a form of generalized objection to cover all issues addressed by the
magistrate judge; it contemplates that a party' s objection to a magistrate judge's
report be specific and particularized .. .."); Page v. Lee, 337 F.3d 411 , 416 n. 3 (4th
Cir.2003) (" (P]etitioner' s failure to object to the magistrate judge's
recommendation with the specificity required by the Rule is, standing alone, a
sufficient basis upon which to affirm the judgment of the district court .... ").
Accordingly, " [a] general objection to the entirety of the magistrate ' s report has
the same effects as would a failure to object." Howard v. Sec 'y of Health and
Human Servs., 932 F.2d 505, 509 (6th Cir.1991); see also Hyatt v. Town of Lake
Lure, 314 F.Supp.2d 562, 580 (W.D.N.C.2003).

Veney v. Astrue, 539 F. Supp. 2d 841, 845 (W.D. Va. 2008). The court went on to explain why
general objections in the form of repackaged prior pleadings are disfavored:
In short, unsatisfied by the findings and recommendations in the Report, Plaintiff
has simply ignored it, attempting instead to seek re-argument and reconsideration
of her entire case in the guise of objecting.

Allowing a litigant to obtain de novo review of her entire case by merely
reformatting an earlier brief as an objection "mak[ es] the initial reference to the
magistrate useless. The functions of the district court are effectively duplicated as
both the magistrate and the district court perform identical tasks. This duplication
of time and effort wastes judicial resources rather than saving them, and runs
contrary to the purposes of the Magistrates Act. " Howard, 932 F.2d at 509.

Veney, 539 F. Supp. 2d 844-46 (W.D. Va. 2008). Further, as the Fourth Circuit explained
in Midgette,
To conclude otherwise would defeat the purpose of requiring objections. We
would be permitting a party to appeal any issue that was before the magistrate
judge, regardless of the nature and scope of objections made to the magistrate
judge' s report. Either the district court would then have to review every issue in
the magistrate judge ' s proposed findings and recommendations or courts of
appeals would be required to review issues that the district court never
considered. In either case, judicial resources would be wasted and the district
court's effectiveness based on help from m agistrate judges would be undermined.

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Midgette, 478 F.3d at 622 . As Plaintiff has not made a specific objection to any portion of the R.
& R. , the Court need only satisfy itself that the Magistrate has made no clear error on the face of

the record. See Howell v. Holland, No. 4: 13-CV-00295-RBH, 2015 WL 751590, at *4 (D.S.C.
Feb. 23, 2015). Finding no clear error in the Magistrate's determination, the Court adopts the R.
& R. as the order of the Court.

IV.

Conclusion
For the reasons set forth above, Defendant's partial motion for summary judgment (Dkt.

No. 6) is granted.

AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge
July J.1_, 2017
Charleston, South Carolina

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