Salmon v. South Carolina Electric and Gas

Filing 16

ORDER ADOPTING 15 REPORT AND RECOMMENDATION granting Defendant's partial motion to dismiss 5 as to Plaintiff's Title VII retaliation claim and denied as to Plaintiff's ADEA retaliation claim. The within action is recommitted to the Magistrate Judge for further pretrial handling. Signed by Honorable Margaret B Seymour on 5/28/2015. (gmil)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Carl D. Salmon,

)
) C/A No. 3:14-4493-MBS-SVH
Plaintiff,
)
)
vs.
)
ORDER
)
South Carolina Electric and Gas,
)
)
Defendant.
)
____________________________________)
Plaintiff Carl D. Salmon brings this action against his former employer, South Carolina
Electric & Gas Company (improperly denominated in the caption as “South Carolina Electric and
Gas”). Plaintiff alleges he was discriminated against in violation of the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. §§ 621-634 (First Cause of Action), and retaliated against in
violation of the ADEA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.
(Second Cause of Action). Plaintiff also asserts a state law claim for defamation (Third Cause of
Action). In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was
referred to United States Magistrate Judge Shiva V. Hodges for pretrial handling.
This matter is before the court on Defendant’s partial motion to dismiss, which motion was
filed on November 26, 2014. See Fed. R. Civ. P. 12(b)(6). Defendant contends that Plaintiff’s
Second Cause of Action should be dismissed because (1) Plaintiff did not specifically assert
retaliation under the ADEA in his Charge of Discrimination, and thus failed to exhaust his
administrative remedies as to this claim; and (2) Plaintiff makes no allegations in the complaint
regarding any unlawful employment practice under Title VII. Plaintiff filed a response in opposition
to Defendant’s motion to dismiss on January 2, 2015. Plaintiff argues that his Charge of

Discrimination properly identifies retaliation in violation of the ADEA. Plaintiff concedes that he
is not seeking recovery for retaliation in violation of Title VII. Defendant filed a reply in support of
its partial motion to dismiss on January 8, 2015.
On May 4, 2015, the Magistrate Judge filed a Report and Recommendation in which she
reviewed the Charge of Discrimination and noted that Plaintiff indicated ADEA discrimination and
retaliation. The Magistrate Judge found that Plaintiff’s retaliation claim is reasonably related to the
Charge and could be expected to follow from a reasonable administrative investigation. See Smith
v. First Union Nat’l Bank, 202 F.3d 234, 247 (4th Cir. 2000). The Magistrate Judge also noted that
Plaintiff had conceded Defendant’s partial motion to dismiss with respect to any Title VII claim. No
party filed objections to the Report and Recommendation.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This 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).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id. 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).
The court has thoroughly reviewed the record.

The court adopts the Report and

Recommendation and incorporates it herein by reference. For the reasons stated herein and in the
Report and Recommendation, Defendant’s partial motion to dismiss is granted as to Plaintiff’s Title

2

VII retaliation claim and denied as to Plaintiff’s ADEA retaliation claim. The within action is
recommitted to the Magistrate Judge for further pretrial handling.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
May 28, 2015

3