Cornelius v. McHugh

Filing 62

OPINION and ORDER RULING ON REPORT AND RECOMMENDATION adopting 45 Report and Recommendation; granting in part 24 Motion to Dismiss; denying 41 Motion for Hearing; denying 43 Motion for Hearing; referring the matter to the Magistrate Judge for further pretrial proceedings. Signed by Honorable Cameron McGowan Currie on 9/10/2014. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Michael Cornelius,

)
)
Plaintiff,
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v.
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John M. McHugh, Secretary, Department )
of the Army,
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)
Defendant.
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___________________________________ )

C/A NO. 3:13-1018-CMC-PJG

OPINION and ORDER

This matter is before the court on Plaintiff’s pro se complaint. In accordance with 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02 (B)(2)(g), DSC, the matter was referred to United States
Magistrate Judge Paige J. Gossett for pre-trial proceedings and a Report and Recommendation
(“Report”). On July 28, 2014, the Magistrate Judge issued a Report recommending that Defendant’s
motion to dismiss be granted in part and denied in part. The Magistrate Judge advised the parties
of the procedures and requirements for filing objections to the Report and the serious consequences
if they failed to do so. Plaintiff filed objections to the Report; Defendant sought an extension of time
to file objections but did not file objections within the extended time period prescribed by the court.1
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make 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 Report of the Magistrate Judge to which a specific objection is
1

On August 26, 2014, Defendant sought a further one-day extension for filing objections but
gave no reason why the extension was needed. Accordingly, the court denied Defendant’s motion
and ordered the Objections, which had been filed separately, stricken from the docket.
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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).
After reviewing the record of this matter, the applicable law, the Report and
Recommendation of the Magistrate Judge, and Plaintiff’s objections, the court agrees with the
conclusions of the Magistrate Judge. Accordingly, the court adopts and incorporates the Report and
Recommendation by reference in this Order.
As to Plaintiff’s claim for relief under the Whistleblower Act, 10 U.S.C. § 1587, this court
has no jurisdiction to entertain any action brought in this court by Plaintiff under this statute.
To the extent Plaintiff brings a Title VII retaliation claim based on his annual performance
appraisal for the period ending February 28, 2011, the court agrees with the Magistrate Judge that
this claim falls within the exception discussed in Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992).2
However, the court also agrees with the Magistrate Judge that any retaliation claim based on
Plaintiff’s annual performance appraisal for the period ending February 28, 2013, is barred due to
Plaintiff’s failure to exhaust administrative remedies.
Even absent the Nealon exception, the court finds Plaintiff’s allegations concerning his
timely attempt to amend his January 27, 2011, EEO filing to include a charge of retaliation overcome
Defendant’s motion to dismiss based on lack of exhaustion. See Pla’s Declaration at 1, ECF No. 48-

2

As to this issue, Nealon has not been overruled by National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101 (2002). In Jones v. Calvert Group, Ltd., 551 F.3d 297, 303 (4th Cir. 2009),
the Fourth Circuit found that “Morgan addresses only the issue of when the limitations clock for
filing an EEOC charge begins ticking with regard to discrete unlawful employment practices. . . .
It does not purport to address the extent to which an EEOC charge satisfies exhaustion requirements
for claims of related, post-charge events.”
2

1 at 24 (“On April 1, 2011, I timely visited the EEO office within (45) days under the statute of
limitation [to] try and file the Retaliation, and Whistleblower Protection Act, complaint against my
employer by request[ing] to have the previous[ly] filed EEO complaint, dated January 27, 2011
amended. [The] EEO officer refused to file my complaints.”). See Edelman v. Lynchburg College,
300 F.3d 400, 404 (4th Cir. 2002) (“Once a valid charge has been filed, a simple failure by the EEOC
to fulfill its statutory duties regarding the charge does not preclude a plaintiff’s Title VII claim.”).
Defendant McHugh’s motion to dismiss (ECF No. 24) is granted in part and denied in
part. Defendant’s motion is granted as to any Title VII claim associated with the annual
performance appraisal for the period ending February 28, 2013, and as to any Whistleblower Act
claim brought pursuant to 10 U.S.C. § 1587. The motion is denied as to Plaintiff’s claim of
retaliation based on his annual performance appraisal for the period ending February 28, 2011.
Plaintiff has filed two motions for hearing based upon Defendant’s motion for protective
order, which was granted by the Magistrate Judge. See ECF Nos. 34 & 36. As the Magistrate Judge
will be re-setting the deadlines for completion of discovery and other pretrial deadlines in this case,
Plaintiff’s motions are moot at this point. Accordingly, Plaintiff’s motions for hearing (ECF Nos.
41 & 43) are denied without prejudice.
This matter is returned to the Magistrate Judge for further pretrial proceedings.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
SENIOR UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
September 10, 2014

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