Bouchard v. Potter

Filing 27

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION adopting in part 24 Report and Recommendation, granting in part 20 Motion for Summary Judgment (Mediation Due by 3/18/2013, Rule 26(a)(3) Disclosures due by 3/25/2013, Motion in Limine due by 5/9/2013, Jury Selection Deadline 5/30/2013) Signed by Honorable Cameron McGowan Currie on 2/8/2013. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Wendy A. Bouchard,

)
)
Plaintiff,
)
)
v.
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)
John E. Potter, Postmaster General
)
United States Post Office,
)
)
Defendant.
)
________________________________________ )

C/A No. 3:11-982-CMC-SHV

OPINION AND ORDER

Through this action, Plaintiff, Wendy A. Bouchard (“Bouchard”), seeks recovery from her
former employer, Postmaster General John E. Potter (“Potter”), for alleged gender discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”).
Bouchard also advances state-law causes of action relating to her termination.
The matter is before the court on Potter’s motion for summary judgment. Dkt. No. 20. In
accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(e), (g), DSC, this matter was
referred to United States Magistrate Judge Shiva V. Hodges for pre-trial proceedings and a Report and
Recommendation (“Report”).

On December 14, 2012, the Magistrate Judge issued a Report

recommending that Potter’s motion for summary judgment be granted. Dkt. No. 24. Bouchard filed
timely objections on January 2, 2013 (Dkt. No. 25). For the reasons stated below, Potter’s motion for
summary judgment is granted in part and denied in part.
STANDARD
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 the court.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Magistrate Judge’s Report and Recommendation to which a specific

objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation
made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See
28 U.S.C. § 636(b). In the absence of an objection, the court reviews the Report and Recommendation
only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (stating that “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”) (citation omitted).
BACKGROUND
Bouchard alleges that she was “subjected to a hostile work environment on account of her sex”
and, “[a]fter she complained, . . . was further harassed and ultimately terminated in retaliation for her
complaining about her supervisor’s unlawful actions.” Complaint ¶ 14. She seeks redress for these
allegations under Title VII and also advances two contract-based state-law claims.
In response to Potter’s motion, Bouchard conceded that she had not engaged in protected
activity prior to her termination. She argued that this fact was not dispositive because her allegation
of “retaliation” should be characterized as a claim for quid pro quo discrimination. Specifically, she
argued that she was subjected to adverse treatment and eventual termination because she rejected the
advances of her supervisor, the local postmaster. Dkt. No. 23 at 7.
Potter did not respond to this characterization of Bouchard’s claim by filing a reply in support
of summary judgment.1

The Report, nonetheless, recommended that the court reject this

characterization of Bouchard’s Title VII claim as belated and unduly prejudicial because it was not
raised until after the close of discovery. The Report, therefore, recommended that Potter’s motion for
1

Replies in support of motions are permitted, though discouraged, by Local Civil Rule 7.07,
D.S.C. A reply is, nonetheless, appropriate if a party raises a new and unexpected legal theory in
response to a motion for summary judgment.
2

summary judgment be granted in full as to the Title VII claim. It also recommended that summary
judgment be granted as to the two state-law claims.
In her objections, Bouchard appears, initially, to object to all recommendations relating to her
Title VII claim.2 Her specific arguments, however, focus on a characterization of her Title VII claim
as a claim for quid pro quo discrimination. For example, she asserts that the allegations and factual
record support finding that “her rejection of the harassment was the cause of her termination.” Dkt. No.
25 at 6. She concedes that her “complaint in-artfully alleges [that she] ‘complained’ of [the
postmaster’s] harassment when a clear allegation would have been to say that she simply rejected the
advances[.]” Potter did not respond to this objection.
DISCUSSION
The court adopts the reasoning and recommendations of the Report to the extent it recommends
that the court grant summary judgment on Bouchard’s state-law claims, recommendations that
Bouchard does not oppose. See supra n. 2. The court also adopts the reasoning and recommendations
of the Report as to the Title VII claim to the extent it advances claims for hostile environment or
retaliation.
The court declines to adopt the Report to the extent it forecloses a claim for quid pro quo
discrimination. The court reaches this conclusion because Potter has not presented any opposition to
this characterization of Bouchard’s Title VII claim, despite two opportunities to do so. Under these
circumstances, there is no basis on which to conclude that allowing this characterization would result
in undue prejudice to Potter. Neither has Potter presented any argument as to why such a claim would
not be legally viable.
2

Bouchard “does not object to the recommendation that Defendant be granted summary
judgment on her second and third causes of action.” Dkt. No. 25 at 6 n.1 (referring to state-law
claims).
3

CONCLUSION
For the reasons set forth above, the court grants summary judgment as to the second and third
causes of action, and limits the first cause of action to a claim for quid pro quo discrimination. The
matter shall proceed to trial under the following schedule:
1.

Mediation, pursuant to Local Civil Rules 16.04 –16.12, shall be completed in this case on or
before March 18, 2013. See Standing Order to Conduct Mediation 4:00-mc-5001, which sets
forth mediation requirements and is found on the court’s website under Judge Currie's forms
(http://www.scd.uscourts.gov).

2.

No later than March 25, 2013, the parties shall file and exchange Fed. R. Civ. P. 26(a)(3)
pretrial disclosures. Within fourteen (14) days thereafter, a party shall file and exchange Fed.
R. Civ. P. 26(a)(3) objections, any objections to use of a deposition designated by another party
and any deposition counter-designations under Fed. R. Civ. P. 32(a)(4). See Local Civil Rule
30.03(J) (video deposition additional requirements).

3.

Motions in limine must be filed at least three weeks prior to jury selection.

4.

Parties shall furnish the court pretrial briefs five (5) business days prior to the date set for jury
selection (Local Civil Rule 26.05).3 Attorneys shall meet at least five (5) business days prior
to the date set for submission of pretrial briefs for the purpose of exchanging and marking all
exhibits. See Local Civil Rule 26.07.

5.

This case shall be called for trial during the May 2013 term of court, with jury selection set for
May 30, 2013.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
February 8, 2013

3

Judge Currie requires that pretrial briefs be filed with the Clerk of Court as part of the
public record and served on opposing parties.
4