Walker v. Progressive Casualty Insurance Company et al

Filing 83

ORDER RULING ON REPORT AND RECOMMENDATION accepting and modifying 67 Report and Recommendation; granting in part 54 Motion for Summary Judgment; remanding 48 Motion for Summary Judgment. Please note: It is the responsibility of the attorney to supplement the state court record with anything filed in federal court. Signed by Honorable J Michelle Childs on 3/8/2019. (asni, ) Modified to edit text on 3/8/2019 (asni, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Kenneth Dale Walker,

)
)
Plaintiff,
)
)
v.
)
)
)
Progressive Casualty Insurance Company, )
)
Defendant.
)
____________________________________)

Civil Action No.: 3:17-cv-01935-JMC
ORDER

This matter is before the court for review of the Magistrate Judge’s Report and
Recommendation (“Report”) filed on November 6, 2018. (ECF No. 67.) The Report addresses
Defendant Progressive Casualty Insurance Company’s (“Defendant”) Motion for Summary
Judgment (ECF No. 54) and recommends granting Defendant’s Motion for Summary Judgment as
to Plaintiff Kenneth Dale Walker’s (“Plaintiff”) claim under the Age Discrimination in
Employment Act (“ADEA”) and remanding Plaintiff’s remaining state law claims to the Lexington
County Court of Common Pleas. (Id. at 2, 16.) The court heard arguments on March 4, 2019. (ECF
No. 82.) For the reasons set forth herein, the court ACCEPTS and MODIFIES the Magistrate
Judge’s Report (ECF No. 67), incorporating it herein, GRANTS IN PART Defendant’s Motion
for Summary Judgment (ECF No. 54) as it relates to Plaintiff’s ADEA claim, and REMANDS
Plaintiff’s remaining state law claims (ECF Nos. 1, 27, 43), including his Partial Motion for
Summary Judgment (ECF No. 48), to the Lexington County Court of Common Pleas.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Report provides a thorough examination of the facts, which this court incorporates
herein without a full recitation. (ECF No. 67 at 3–6.) As brief background, Plaintiff was hired by

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Defendant as a claims representative in 1989 and was eventually promoted to a claims manager
position in 2014. (ECF No. 54-2 at 7; ECF No. 67 at 3.) During his employment as a claims
manager, Plaintiff oversaw Cynthia Walker (“Walker”), a claims processer and receptionist, to
whom he was not related. (ECF No. 54-2 at 9–10.) In addition to being Walker’s supervisor,
Plaintiff maintained a personal friendship with Walker, which was not romantic or sexual. (ECF
No. 54-9 at 2; ECF No. 54-11 at 2–3; ECF No. 54-13 at 6–7; ECF No. 67 at 3.) On or about
February 9, 2017, Plaintiff was approached by Christina Stewart (“Stewart”), one of his
supervisees, about her observation of a verbal altercation between Walker and another employee
named Summer Hills-Painter (“Hills-Painter”). (ECF No. 54-2 at 7–9, 11.) Plaintiff spoke with
Walker about the incident and asked her to “apologize to those involved.” (Id. at 15.) Stewart
disagreed with Plaintiff’s handling of the situation and believed that Walker should have been
written up. (ECF No. 54-12 at 9.)
Following the incident, Dana Riley (“Riley”), Defendant’s human resources consultant,
contacted Stewart to discuss an unrelated matter regarding Hills-Painter. (ECF No. 54-6 at 8–11;
ECF No. 54-12 at 6.) During that conversation, Stewart told Riley about the altercation between
Walker and Hills-Painter. (ECF No. 54-6 at 11–12; ECF No. 54-12 at 6.) Riley testifies that, during
their initial conversation, Stewart told her about Plaintiff having a “relationship outside of work”
with Walker, but Stewart testifies that she told Riley about Plaintiff and Walker’s friendship when
Riley physically visited their job site. (ECF No. 54-6 at 13; ECF No. 54-12 at 13–14.) Regardless
of the inconsistency between Riley and Stewart about when the conversation took place, Stewart
previously stated that she “advised” Riley, in a meeting, that Plaintiff and Walker had a
“relationship outside of work that started when his kids were young and continues to this day.”
(ECF No. 54-11 at 11–12.) Eventually, Riley opened an investigation into Plaintiff’s management

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of Stewart. (ECF No. 54-4 at 2; ECF No. 54-6 at 6, 15.) Riley’s investigation revealed a personal
friendship between Plaintiff and Walker, and Walker’s time and attendance records revealed
attendance issues. (ECF No. 54-4 at 4; ECF No. 54-13 at 8.)
On March 21, 2017, Riley, along with Kevin Walston (“Walston”), visited Plaintiff’s office
in order to conduct interviews of Plaintiff, Walker, and Stewart. (ECF No. 54-4 at 3; ECF No. 5411 at 2–12.) After the interviews, Riley asked each interviewee to confirm or make additions to
the information gathered from the interviews. (ECF No. 54-11.) Based upon the investigation,
there was a recommendation of termination for Plaintiff. (ECF No. 54-8 at 2.) Defendant
terminated Plaintiff on March 29, 2017, stating that he violated its Relationships at Work Policy
(“the RWP”) 1 by failing to report his personal friendship with Walker. (ECF No. 54-9.) Riley’s
investigation indicated that Plaintiff allowed his dog to stay with Walker and Walker’s disabled
sister, Walker kept an interest in Plaintiff’s children, and Plaintiff assisted Walker with paying for
emergency expenditures. (ECF No. 67 at 6.) (See also ECF No. 54-4 at 14.)
After his termination in March 2017, Plaintiff filed his Complaint against Defendant in the
Lexington County Court of Common Pleas on June 5, 2017. (ECF No. 1-1 at 8–16.) Originally,
Plaintiff brought claims under the ADEA, civil conspiracy, defamation, and tortious interference
with contract. (Id.) Pursuant to 28 U.S.C. § 1441(a), Defendant removed the action to the United
States District Court for the District of South Carolina on July 21, 2017, specifically invoking

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In part, Defendant’s Relationships at Work Policy (“the RWP”) requires the “disclosure of
relationships that may create actual or perceived conflicts of interests, favoritism, or discomfort in
the workplace.” (ECF No. 54-4 at 14 (emphasis added).) According to the RWP, “[t]hese include
any prior (including one-time) and/or current sexual, dating, or intimate relationship; any prior
and/or current family relationship; any outside business relationship; and any sexual encounter.”
(Id. (emphasis added).) The RWP mandates a “manager or supervisor” to disclose “any
relationship” subject to the policy. (Id.) “A failure to disclose a relationship that requires disclosure
under [the RWP] . . . will result in disciplinary action up to and including termination of
employment.” (Id. at 15.)
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federal question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C.
§ 1367. (ECF No. 1 at 1–4.) Upon filing a Second Amended Complaint on March 9, 2018, Plaintiff
only presented claims under the ADEA, defamation, breach of contract, and public policy
discharge. (ECF No. 43.) A few months later, on June 29, 2018, Plaintiff filed his Motion for
Partial Summary Judgment, but only concerning liability for his breach of contract claim. (ECF
No. 48.) On July 16, 2018, Defendant filed its Motion for Summary Judgment, seeking the entry
of summary judgment on all of Plaintiff’s claims. (ECF No. 54-1.)
The Magistrate Judge filed her Report on November 6, 2018. (ECF No. 67.) The Magistrate
Judge recommends granting Defendant’s Motion for Summary Judgment on Plaintiff’s ADEA
claim and remanding Plaintiff’s remaining state law claims, including his Motion for Partial
Summary Judgment, to the Lexington County Court of Common Pleas. (Id. at 2, 16.) First, as it
relates to Plaintiff’s ADEA claim, the Magistrate Judge determined that Plaintiff successfully
established a prima facie case of age discrimination under the United States Supreme Court’s
McDonnell Douglas framework. (Id. at 9 n.1 (citing Hill v. Lockheed Martin Logistics Mgmt., Inc.,
354 F.3d 277, 285 (4th Cir. 2004)).) Putting it quite succinctly, the Magistrate Judge opined that
Plaintiff “presented no evidence that Defendant manufactured its explanation for his termination
and that his age was the ‘but-for’ cause of his termination.” (Id. at 15 (emphasis added).) In the
Magistrate Judge’s view, because Plaintiff could not show pretext or but-for cause, Defendant was
entitled to summary judgment on Plaintiff’s ADEA claim as a matter of law. (Id.) Second, as it
relates to Plaintiff’s state law claims, the Magistrate Judge recommended that the court “remand
the state law claims to the Lexington County Court of Common Pleas,” but did not provide any
reasoning for that recommendation. (See id. at 16.)

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Both Plaintiff and Defendant specifically objected to the Report on November 20, 2018.
(ECF Nos. 69, 70.) Plaintiff specifically asserts that the Report resolves a disputed material fact
about the human resources investigation and does not consider all his pretext arguments. (ECF No.
70 at 5–6.) Additionally, Plaintiff argues that disproving or rebutting Defendant’s legitimate,
nondiscriminatory reason is sufficient to overcome summary judgment and “may give rise to a
jury issue” under Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). (Id.) Naturally,
Defendant did not object to the Magistrate Judge’s finding regarding Plaintiff’s ADEA claim,
however, Defendant did object to the Magistrate Judge’s recommendation of remanding Plaintiff’s
state law claims. (ECF No. 69 at 3.) Defendant contends that the Report fails to address the relevant
factors for the court’s exercise of supplemental jurisdiction and argues that those factors, such as
judicial economy and comity, weigh in favor of the court retaining jurisdiction over the state law
claims and granting the entirety of its Motion for Summary Judgment. (Id. at 3–5.)
On March 4, 2019, the court heard arguments from both parties regarding the Magistrate
Judge’s Report. During the hearing, Defendant argued for retaining supplemental jurisdiction over
Plaintiff’s state law claims. If his ADEA claim is dismissed, Plaintiff emphasized that this matter
was first filed in the Lexington County Court of Common Pleas, complex state law is implicated,
and the Magistrate Judge’s Report does not analyze the state law claims, thereby warranting
remand to state court. Plaintiff also maintained that he presented sufficient evidence of pretext
under the ADEA, thereby allowing him to reach a jury and survive Defendant’s Motion for
Summary Judgment. Defendant vigorously argued that Plaintiff has failed to show that age was
the but-for cause of his termination. Because this matter has been extensively argued and briefed,
it is now ripe for the court’s review. See generally Sauls v. Wyeth Pharm., Inc., 846 F. Supp. 2d
499, 501 (D.S.C. 2012) (“The parties have fully briefed the issues, and this matter is ripe for

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consideration.”).
II. LEGAL STANDARD
A. The Magistrate Judge’s Report
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 only makes a
recommendation to this court, and the recommendation has no presumptive weight. See Mathews
v. Weber, 423 U.S. 261, 270–71 (1976). The responsibility to make a final determination remains
with the court. Id. at 271. As such, the court is charged with making de novo determinations of
those portions of the Report to which specific objections are made. See 28 U.S.C. § 636(b)(1). See
also FED. R. CIV. P. 72(b)(3). In the absence of specific objections to the Magistrate Judge’s
Report, the court is not required to give any explanation for adopting the Report. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “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) (quoting FED. R. CIV. P. 72
advisory committee’s note). Thus, the court may accept, reject, or modify, in whole or in part, the
Magistrate Judge’s recommendation or recommit the matter with instructions. 28 U.S.C. §
636(b)(1).
B. Summary Judgement Under FED. R. CIV. P. 56(a)
A federal court “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a). “[S]ummary judgment is proper ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

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genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting FED. R. CIV. P. 56(c)). In a
summary judgment motion, “[a] court must take care to ‘resolve all factual disputes and any
competing, rational inferences in the light most favorable’ to the party opposing that motion.”
Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Wightman v. Springfield
Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)). Nevertheless, “the nonmoving party . . .
must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or
her] favor.’” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). Summary judgment is therefore appropriate
“when the nonmoving party has the burden of proof on an essential element of her case and does
not make, after adequate time for discovery, a showing sufficient to establish that element.” Id.
(citing Celotex Corp., 477 U.S. at 322–23).
III. DISCUSSION
Both Plaintiff and Defendant present specific objections to the Magistrate Judge’s Report.
(ECF Nos. 69, 70.) Plaintiff specifically objects to the Report on the following three grounds: (1)
the Magistrate Judge improperly determined a disputed material fact concerning the testimony of
Riley; (2) his evidence sufficiently shows that Defendant’s legitimate, nondiscriminatory reason
is false, thereby allowing him to reach a jury; and (3) the Magistrate Judge failed to consider all of
his arguments regarding possible pretext. (ECF No. 70 at 4–6.) Defendant only presents one
objection to the Magistrate Judge’s Report. (ECF No. 69.) Defendant specifically objects to
remanding Plaintiff’s remaining state law claims because the Magistrate Judge’s Report fails to
analyze the relevant factors guiding the court’s exercise of supplemental jurisdiction. (Id. at 2.)
Defendant requests the court to exercise supplemental jurisdiction over Plaintiff’s remaining state
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law claims and grant its Motion for Summary Judgment in its entirety. (Id. at 2–6.) The court will
consider all of these objections in turn, beginning with those of Plaintiff.
A. Plaintiff’s Objections Regarding the ADEA
i. Riley’s Testimony and a Material Fact
Plaintiff argues that the Magistrate Judge’s Report makes an improper determination about
a disputed material fact, which should have been left for a jury’s consideration. (ECF No. 70 at 4–
5.) Specifically, Plaintiff believes that the Magistrate Judge’s Report errs when it states that “Riley
inferred from Stewart’s comments that Plaintiff’s friendship with [Walker] played a role in how
Plaintiff managed her.” (Id. at 5 (citing ECF No. 67 at 5).) Plaintiff contends that this is error
because Stewart denied telling Riley information about his friendship with Walker. (Id.)
At the summary judgment stage, a factual dispute raised by a non-moving party must be
“genuine” and “material.” See FED. R. CIV. P. 56(a). To determine if a fact is “material,” a federal
court is guided by the substantive law at issue, which will identify the facts that are material and
those that “might affect the outcome of the suit.” Anderson, 477 U.S. at 248. The United States
Supreme Court has instructed that the substantive law identifies “which facts are critical and which
facts are irrelevant . . . .” Id. Put simply, “[a] fact is ‘material’ if proof of its existence or
nonexistence would affect the outcome of the lawsuit under applicable law in the case.” Agee v.
Wayne Farms LLC, C/A Nos. 2:07cv1010–KS–MTP, 2:07cv1011–KS–MTP, 2008 WL 5398743,
at *1 (S.D. Miss. Dec. 19, 2008) (citing Anderson, 477 U.S. at 248). The mere existence of “some
alleged factual dispute” is insufficient to defeat a well-supported summary judgment motion.
Anderson, 477 U.S. at 247–48. “A dispute over irrelevant or unnecessary facts will not preclude
summary judgment, but the presence of unresolved factual issues that are material to the outcome

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of the litigation mandates a denial of summary judgment.” GSGSB, Inc. v. N.Y. Yankees, 862 F.
Supp. 1160, 1170 (S.D.N.Y. 1994) (citations omitted).
The ADEA prohibits employers from “discharg[ing] any individual or otherwise
discriminat[ing] against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age.” 28 U.S.C. § 623(a)(1). While the
investigation and ultimate termination of Plaintiff are material to the ADEA’s scheme, in this
instance, the conversation that gave rise to the pre-termination investigation would not “affect the
outcome of the suit” because Riley documented her conversation with Stewart, and Stewart
subsequently affirmed the contents of the conversation before later denying, in her deposition,
when the conversation happened. (ECF No. 54-6 at 13; ECF No. 54-11 at 11–12.) In fact, in her
deposition, Stewart testified that she participated in a conversation with Riley during which she
conveyed her knowledge of the friendship between Plaintiff and Walker. (ECF No. 54-12 at 10;
ECF No. 62-2 at 11.) Regardless of when the conversation occurred between Stewart and Riley,
there is no dispute that a conversation, concerning Plaintiff and Walker’s friendship, occurred.
Indeed, there is an ancillary factual dispute and credibility issue, but not one that is “material” or
one that would “affect the outcome of the suit” because the dispute over the conversation’s specific
time and place provides little guidance about the ultimate question of age discrimination under the
ADEA. See generally Polycast Tech. Corp. v. Uniroyal, Inc.,792 F. Supp. 244, 249 (S.D.N.Y.
1992) (“While the party resisting summary judgment must show a dispute of fact, it must also be
a material fact in light of the substantive law.”); Allstate Ins. Co. v. Shockley, 793 F. Supp. 852,
854 (S.D. Ind. 1991) (“Moreover, the mere existence of a factual dispute is not by itself sufficient
to bar summary judgment; the disputed fact must be outcome determinative.” (citations omitted));
Childs v. Runyon, C/A No. 95–705(CKK), 1998 WL 1181190, at *3 (D.D.C. June 2, 1998)

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(determining that a letter sent by a plaintiff to a defendant, which the defendant claimed to have
not received, was not a material fact to the outcome of the case). Noticeably, Plaintiff has not
indicated how a dispute over the conversation’s specific time and place affects the outcome of his
ADEA claim. (See ECF No. 70 at 5.) For these reasons, the court overrules Plaintiff’s first
objection to the Magistrate Judge’s Report.
ii. Rebutting Defendant’s Legitimate, Nondiscriminatory Reason
Plaintiff’s second objection submits that “where a [p]laintiff establishes her prima facie
case and presents evidence that an employer’s asserted reason for an adverse action is false, that
[alone] may give rise to a jury issue.” (ECF No. 70 at 5–6.) Plaintiff relies upon Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), to argue that he has provided “competent
. . . evidence” that establishes a “triable age claim.” (Id. at 6.) Plaintiff’s interpretation and reliance
upon Reeves is woefully misguided.
In Reeves, the Supreme Court clarified the respective evidentiary burdens of opposing
parties under its McDonnell Douglas framework. 530 U.S. at 142–49. Specifically, the Court stated
that “a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s
asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully
discriminated.” Id. at 148 (emphasis added). The Court went on to state that there “will be instances
where, although the plaintiff has established a prima facie case and set forth sufficient evidence to
reject the defendant’s explanation, no rational factfinder could conclude that the action was
discriminatory.” Id. (emphasis added). By way of example, the Court provided the following:
For instance, an employer would be entitled to judgment as a matter of law if the
record conclusively revealed some other, nondiscriminatory reason for the
employer’s decision, or if the plaintiff created only a weak issue of fact as to
whether the employer’s reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had occurred.

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Id. (emphasis added) (citation omitted). The Court further explained that: “Whether judgment as a
matter of law is appropriate in any particular case will depend on a number of factors. Those
include the strength of the plaintiff’s prima facie case, the probative value of the proof that the
employer’s explanation is false, and any other evidence that supports the employer’s case and that
properly may be considered on a motion for judgment as a matter of law.” Id. at 148–49 (emphasis
added). In contrast to Plaintiff’s attenuated position, Reeves holds that a plaintiff’s prima facie
case may sometimes overcome a defendant’s motion for summary judgment, but not in all
instances. See id. Reeves does not stand for the proposition that a plaintiff always overcomes
summary judgment, thereby reaching a jury, by simply establishing a prima facie case or by
rebutting a defendant’s legitimate, nondiscriminatory reason. See id.
The Magistrate Judge determined that “Plaintiff . . . presented no evidence that Defendant
manufactured its explanation for his termination and that his age was the ‘but-for’ cause of his
termination.” (ECF No. 67 at 15 (emphasis added).) To rebut the Report, Plaintiff cites to Riley’s
deposition and Defendant’s Handbook. (ECF No. 70 at 5.) Within the cited portions of Riley’s
deposition, Riley testifies that Plaintiff was terminated because he violated the RWP and not just
for failing to report his relationship with Walker. (ECF No. 62-1 at 34–35.) Riley’s deposition
testimony supports Defendant’s legitimate, nondiscriminatory reason for terminating Plaintiff,
which was his purported violation of the RWP, and does not suggest that Defendant’s reason for
terminating Plaintiff is false. (Compare ECF No. 62-1 at 34–35, with ECF Nos. 54-8, 54-9.)
Plaintiff also cites to the RWP and suggests that Defendant’s legitimate, nondiscriminatory reason
is false. (ECF No. 70 at 5.) (See also ECF No. 62-7.) Riley’s deposition testimony does not conflict
with the RWP, rather the RWP states that “[Defendant] require[s] disclosure of relationships that
may create actual or perceived conflicts of interest . . . .” (Compare ECF No. 62-1 at 34–35, with

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ECF No. 54-4 at 14.) The RWP also applies to acts of favoritism and to any intimate relationship.
(See ECF No. 54-4 at 14.) Riley’s deposition is entirely consistent with Defendant’s policy and
does not show a manufactured explanation on the part of Defendant. (Compare ECF No. 62-1 at
34–35, with ECF No. 54-4 at 14.) Lastly and quite tellingly, during the hearing and within his
Objections, Plaintiff does not even use the word “age” to describe the nature of the discrimination
he apparently suffered. (See ECF No. 70 at 5–6.) This is a case in which “the probative value of
proof that [Defendant’s] explanation is false” has not been shown. 530 U.S. at 148–49. Thus,
Plaintiff’s objection is overruled because it misapprehends the nature of federal anti-discrimination
precedent and the evidentiary burdens under the McDonnell Douglas framework.
iii. Plaintiff’s Other Arguments Implicating Pretext
Within his last objection, Plaintiff argues that the Magistrate Judge failed to consider all of
his pretext arguments. (ECF No. 70 at 6.) Specifically, Plaintiff alleges that the Magistrate Judge
only considered his “comparative treatment” argument and failed to address the following pretext
arguments: (1) “the falsity of the explanation”; (2) “a subjective and incomplete investigation”;
and (3) “the punishment does not fit the crime.” (See id.) Plaintiff does not object to the Magistrate
Judge’s comparative analysis, thereby waiving any objection on that ground. (See id.) Therefore,
the court need only consider whether Plaintiff has shown pretext pursuant to the “falsity of the
explanation,” “a subjective and incomplete investigation,” and “the punishment does not fit the
crime.” (See id.)
First, as it relates to “the falsity of the explanation,” Plaintiff maintains that he was
terminated for not “engag[ing] in any of the relationships specially listed by that policy.” (ECF
No. 62 at 28.) As the Magistrate Judge appropriately concluded, “Plaintiff disagrees with
Defendant’s interpretation of the RWP and believes that his friendship with [Walker] and the

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perceptions arising therefrom should not have resulted in termination.” (ECF No. 67 at 15.) The
RWP is broad because it specifically requires the “disclosure of relationships that may create
actual or perceived conflicts of interests, favoritism, or discomfort in the workplace.” (ECF No.
54-4 at 14 (emphasis added).) According to its explicit terms, the policy’s broad language clearly
encompasses friendships that may create an “actual or perceived conflict[] of interest.” (Id.) The
word “relationships” is not qualified or limited to affectionate, neighborly, or sexual relationships;
personal friendships are plainly within the RWP’s scope. (See id.) Indeed, the RWP specifically
covers “intimate relationship[s].” (Id.) Plaintiff’s argument regarding pretext is unavailing because
he did not need to engage in a sexual relationship with Walker to be subject to the RWP and has
failed to show that Defendant’s reliance upon the RWP is pretext.
Plaintiff also argues that the “subjective and incomplete investigation” and “the
punishment [] not fit[ting] the crime” are sufficient to show pretext. (ECF No. 70 at 6.) Both of
Plaintiff’s objections miss the mark. First, considering his objections to a “subjective and
incomplete investigation,” Plaintiff maintains that he was improperly terminated before Riley
received all of the responses from the interviewed witnesses, which “could” indicate pretext. (ECF
No. 62 at 28–29.) Upon the court’s review, Plaintifff’s contention is without factual merit because
Riley received interview confirmations from Walker on March 27, 2017, and from Plaintiff and
Stewart on March 28, 2017. 2 (ECF No. 54-11.) These confirmations were at least a day before
Plaintiff’s termination, which was on March 29, 2017. (Compare ECF No. 54-11, with ECF No.
54-9.) Plaintiff’s objection is plainly at odds with the facts. Second, as it relates to his “punishment
[] not fit[ting] the crime,” Plaintiff relies upon Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285 (7th

2

An individual named Kelle Ann George also confirmed and clarified parts of her interview on
March 28, 2017, a day before Plaintiff’s termination. (ECF No. 54-11 at 4–5.)
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Cir. 1999). (ECF No. 62 at 29–30.) In Stalter, a plaintiff, who was African-American, showed that
his employer did not terminate a Caucasian employee who “also committed gross
misconduct . . . .” 195 F.3d at 290–91. As opposed to termination, the Caucasian employee was
merely “counseled” and “allowed to keep her job.” Id. at 291. Additionally, the plaintiff in Stalter
showed that his employer “changed its story between the time of the state administrative
proceeding and the federal action.” Id. Here, Plaintiff’s reliance upon Stalter is inapposite. Plaintiff
has not shown that Defendant “changed its story,” but has shown that Defendant’s proffered
termination decision has been consistent throughout the litigation. (Compare ECF No. 62-1 at 34–
35, with ECF No. 54-4 at 14.) Plaintiff has also waived any objection about “comparative
treatment,” and, therefore, cannot show that a younger employee, who may be appropriately
compared to him, was not terminated for similar “gross misconduct.” (See ECF No. 70 at 6.) Put
simply, the court agrees with the Magistrate Judge’s Report and concludes that Plaintiff has failed
to show pretext. (ECF No. 67 at 15–16.)
Lastly, the Magistrate Judge’s Report notes that Plaintiff has not shown that age was the
but-for cause of his termination. (ECF No. 67 at 14–16.) Most notably, within his Objections and
during the hearing, Plaintiff failed to object to the Magistrate Judge’s conclusion regarding his
failure to show but-for cause under the ADEA. (Compare id., with ECF No. 70 at 6.) But-for cause
is an explicit requirement for ADEA claims, and plaintiffs carry the burden on this element. See
Gross v. FBL Fin. Servs., Inc., 557 U.S. 157, 177–80 (2009) (“We hold that a plaintiff bringing a
disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence,
that age was the ‘but-for’ cause of the challenged adverse employment action.”). For purposes of
the court’s review, Plaintiff has conceded the but-for cause requirement, an essential element of
his action, thereby making summary judgment appropriate for Defendant on the ADEA claim.

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Williams, 809 F.3d at 109 (citing Celotex Corp., 477 U.S. at 322–23). For these reasons, Plaintiff’s
last objection is overruled and without merit.
B. Defendant’s Objections Concerning Supplemental Jurisdiction
Defendant specifically objects to the Magistrate Judge’s Report by arguing that the Report
“neither addressed nor considered” factors that assist with determining whether a federal district
court should exercise supplemental jurisdiction over state law claims. (ECF No. 69 at 2–3.) Upon
the court’s review of the Report, the Magistrate Judge did not undertake such an analysis before
recommending that the court remand Plaintiff’s state law claims. 3 (See ECF No. 67 at 16.)
Defendant argues that the factors, including the time spent within this court, convenience and
fairness, judicial economy, and importance of the state law issues, “weigh[] heavily in favor of the
[c]ourt retaining jurisdiction.” (ECF No. 69 at 3.)
Under 28 U.S.C. § 1367(a), federal district courts “shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article III of the United States Constitution.”
Even though a federal district court “shall have supplemental jurisdiction” over related claims
within the scope of the court’s original jurisdiction, district courts “may decline to exercise
supplemental jurisdiction over a claim” if (1) “the claim raises a novel or complex issue of [s]tate
law”; (2) “the claim substantially predominates over the claim or claims over which the district
court has original jurisdiction”; (3) “the district court has dismissed all claims over which it has
original jurisdiction”; or (4) “in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.” 28 U.S.C. § 1367(c) (emphasis added). Generally, when a federal district

3

Because the Magistrate Judge did not undertake an analysis of supplemental jurisdiction under
28 U.S.C. § 1367(a), the court modifies the Report in this regard. See 28 U.S.C. § 636(b)(1).
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court has dismissed the only federal claim providing it with original jurisdiction, it may remand
the remaining state law claims to state court. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered . . . will point toward declining to exercise jurisdiction over the
remaining state-law claims.”); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)
(“Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a
jurisdictional sense, the state claims should be dismissed as well.”). The court possesses “wide
latitude” in determining whether to retain supplemental jurisdiction under 28 U.S.C. § 1367(a).
Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (citing Nobel v. White, 996 F.2d 797, 799
(5th Cir. 1993)). The court may consider “convenience and fairness to the parties, the existence of
any underlying issues of federal policy, comity, and considerations of judicial economy.” Id.
(citations omitted). Based upon the court’s review above, the court will grant Defendant’s Motion
for Summary Judgment as it relates to Plaintiff’s ADEA claim, the only federal claim. See supra
Part III.A. Thus, the only three claims remaining are those based upon state law, including claims
for defamation, public policy discharge, and breach of contract. (See ECF No. 43 at 8–10.)
First, in considering the convenience and fairness to the parties, Plaintiff originally filed
this action, which only had one federal claim, in state court, and it was removed by Defendant in
the exercise of its rights. (See ECF No. 1.) Therefore, Plaintiff has a clear preference for state court,
while Defendant desires federal court. (See id.) See generally Ndanyi v. Aureon HR I Inc., C/A No.
6:18-2531-HMH-JDA, 2018 WL 6065354, at *1–2 (D.S.C. Nov. 20, 2018) (overruling an
objection asking the court to retain supplemental jurisdiction); Varner v. SERCO, Inc., C/A No.
2:16-cv-2340-DCN, 2018 WL 1305426, at *4 (D.S.C. Mar. 12, 2018) (exercising supplemental
jurisdiction when a plaintiff originally filed his lawsuit in federal court). Secondly, regardless of

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the similarity of the facts, there is no federal policy or interest in litigating the remaining state law
claims in federal court when the only federal claim is extinguished. See Ferrara v. Hunt, C/A No.
0:09–2112, 2012 WL 1044488, at *6 (D.S.C. Mar. 28, 2012) (holding that there was no federal
policy in litigating remaining state law claims, brought under the South Carolina Tort Claims Act,
for malicious prosecution and defamation in federal court because the only federal claim, brought
under 28 U.S.C. § 1983, was dismissed). The remaining state law claims do not have any federal
implications because they are all rooted in the common law of South Carolina. See Coker v. Int’l
Paper Co., C/A No. 2:08–1865–DCN–BM, 2010 WL 1073643, at *3 (D.S.C. Mar. 18, 2010) (“The
garden variety state contract and tort claims at issue do not implicate any underlying issues of
federal policy.”).
Third, comity favors the remand of this matter to state court. Plaintiff brings a defamation
claim against Defendant, which is an unpredictable area of law within South Carolina. See
Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 514 (S.C. 1998) (Toal, J., concurring)
(“I am firmly convinced that the present status of our defamation jurisprudence is so convoluted,
so hopelessly and irretrievably confused, that nothing short of a fresh start can bring any sanity,
and predictability, to this very important area of law.”). Plaintiff also brings a public policy
discharge claim under South Carolina law. (ECF No. 43.) Public policy discharge is a common
law exception to South Carolina’s employment-at-will doctrine. See Ludwick v. This Minute of
Carolina, Inc., 337 S.E.2d 213, 224–25 (S.C. 1985). Because “state appellate courts have since
allowed some cases to go forward and in others have refused to allow such,” a state court is better
suited to consider Plaintiff’s public policy discharge claim because Plaintiff’s only federal claim
is dismissed. See Cunningham v. Aiken Reg’l Med. Ctrs., Inc., C/A No. 1:07-2746-RBH, 2009 WL
2243766, at *2 (D.S.C. July 24, 2009). Lastly, judicial economy does not disfavor remand to state

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court merely because the parties have completed discovery and briefed their state law claims. See
generally Ryals v. City of Hanahan, C/A No. 2:17-cv-2185-RMG, 2018 WL 6061226, at *3
(D.S.C. Nov. 20, 2018) (“There are no issues of judicial economy weighing against remand as
discovery is complete and the case is pending resolution.”). Indeed, the Magistrate Judge’s Report
does not even address Plaintiff’s remaining claims, and the court would also be examining those
claims in the first instance. (See ECF No. 67.) As such, judicial economy does not favor
supplemental jurisdiction and favors remanding the action to the Lexington County Court of
Common Pleas.
Based upon the foregoing, there is no federal policy implicated by the remaining state law
claims and comity is in favor of remanding the state law claims to state court. Further, judicial
economy favors remanding the state law claims. Lastly, fairness and convenience do not cut
against remanding this action. For these reasons, the court will decline the exercise of supplemental
jurisdiction over Plaintiff’s remaining state law claims. Therefore, Defendant’s objections to the
Report are overruled, but the court modifies the Report as it relates to including an analysis about
the court’s supplemental jurisdiction.
IV. CONCLUSION
After careful consideration of the dispositive pleadings, the Magistrate Judge’s Report, the
parties’ objections, and the parties’ arguments at the hearing, the court ACCEPTS and
MODIFIES the Magistrate Judge’s Report and Recommendation (ECF No. 67), incorporating it
herein, and finds it to be thorough and extremely well-reasoned. Therefore, the court GRANTS
IN PART Defendant’s Motion for Summary Judgment (ECF No. 54), as it relates to Plaintiff’s
ADEA claim, and REMANDS Plaintiff’s remaining state law claims (ECF Nos. 1, 27, 43),

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including his Partial Motion for Summary Judgment (ECF No. 48), to the Lexington County Court
of Common Pleas for further proceedings.
IT IS SO ORDERED.

United States District Judge

March 8, 2019
Columbia, South Carolina

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