Rish v. Columbia, City of

Filing 54

ORDER adopting 47 Report and Recommendation and denying 33 Motion for Summary Judgment by City of Columbia. Signed by Honorable Joseph F Anderson, Jr on 8/15/19.(mflo, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Jeffrey D. Rish,

C/A No. 3:17-3145-JFA
Plaintiff,

v.

ORDER

City of Columbia,

Defendant.

I.

INTRODUCTION
Plaintiff Jeffrey D. Rish (“Plaintiff”) filed this civil action on November 17, 2017 alleging

unlawful employment discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. §§ 2000e, et seq., against Defendant City of Columbia (“Defendant”). Plaintiff, a
Caucasian male firefighter, alleges that the demotion he received from his superiors for poking the
buttocks of an African-American male subordinate firefighter with his thumb unfairly diverges
from the lack of discipline, and subsequent promotion, of Mickey Folsom (“Comparator”), an
African-American firefighter who slapped a Caucasian male subordinate firefighter on the
buttocks. (ECF No. 47 at 2). In accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2) (D.S.C.), this case was referred to a Magistrate Judge for Review. (ECF No. 47 at 1).
Thereafter, on January 25, 2019, Defendant filed a Motion for Summary Judgment (“Motion”).
(ECF No. 33).

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The Magistrate Judge assigned to this action 1 prepared a thorough Report and
Recommendation (“Report”), opining that Defendant’s Motion should be denied. (ECF No. 47 at
8). The Report sets forth, in detail, the relevant facts and standards of law on this matter, and this
Court incorporates those facts and standards without a recitation. (ECF No. 47). The Magistrate
Judge required Defendant to file objections by May 22, 2019 (ECF No. 47 at 9) and Defendant
timely filed its Objections (ECF No. 49). Plaintiff also filed a Reply to Defendant’s Objections.
(ECF No. 53). Accordingly, the Motion is ripe for review.
II.

LEGAL STANDARD
The district court is required to conduct a de novo review only of the specific portions of

the Magistrate Judge’s Report to which objections are made. See 28 U.S.C. § 636(b); Fed. R. Civ.
P. 72(b); see also Carniewski v. W. Va. Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In
the absence of specific objections to portions of the Magistrate Judge’s Report, this Court is not
required to give an explanation for adopting the Report. See Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983). Thus, the Court must only review those portions of the Report to which Plaintiff
has made specific written objections. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316
(4th Cir. 2005).
“An objection is specific if it ‘enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.’” Dunlap v. TM Trucking of the
Carolinas, LLC, No. 0:15-cv-04009-JMC, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec. 12, 2017)

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2) (D.S.C.). 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. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objection is made,
and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

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(citing One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)).
A specific objection to the Magistrate Judge’s Report thus requires more than a reassertion of
arguments from the Complaint or a mere citation to legal authorities. See Workman v. Perry, No.
6:17-cv-00765-RBH, 2017 WL 4791150, at *1 (D.S.C. Oct. 23, 2017). A specific objection must
“direct the court to a specific error in the magistrate’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
“Generally stated, nonspecific objections have the same effect as would a failure to object.”
Staley v. Norton, No. 9:07-0288-PMD, 2007 WL 821181, at *1 (D.S.C. Mar. 2, 2007) (citing
Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)). The Court
reviews portions “not objected to—including those portions to which only ‘general and
conclusory’ objections have been made—for clear error.” Id. (emphasis added) (citing Diamond,
416 F.3d at 315; Camby, 718 F.2d at 200; Orpiano, 687 F.2d at 47).
Where an objection is “nonspecific, unrelated to the dispositive portions of the Magistrate
Judge’s Report and Recommendation, or merely restate[s] . . . claims,” the Court need not conduct
any further review of that objection. Field v. McMaster, 663 F. Supp. 2d 449, 452 (D.S.C. 2009);
see also McNeil v. SC Dept. of Corrections, No. 5:12-2880-MGL, 2013 WL 1102881, at *1
(D.S.C. Mar. 15, 2013) (finding petitioner’s objections to be without merit where the objections
were “non-specific, unrelated to the dispositive portions of the Magistrate Judge’s Report, and
consist[ed] of a reassertion of the arguments” made in the petition); Arbogast v. Spartanburg Cty.,
No. 07:11-cv-00198-GRA, 2011 WL 5827635, at *2 (D.S.C. Nov. 17, 2011) (finding that
plaintiff’s objections were not specific where the objections were “general and conclusory in that
they merely reassert[ed] that his conviction was wrongful.”).

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III.

DISCUSSION
In opposing Defendant’s Motion, Plaintiff argues a genuine issue of material fact exists

with regard to whether his conduct was similar to his proffered Comparator’s. The Magistrate
Judge’s Report sides with Plaintiff, finding the conduct of Plaintiff and his Comparator were
sufficiently similar in appearance to raise a jury question of whether they are similar in nature and
severity. The Report gives two reasons for its conclusion.
A. The Report
First, the Report asserts that slapping a subordinate’s buttocks and poking a subordinate’s
buttocks with one’s thumb, though not identical, are similar enough for the jury to determine
whether they are similar in nature and severity. (ECF No. 47 at 7). Here, Defendant seeks to
differentiate as a matter of law Plaintiff’s conduct from Comparator’s by arguing that Plaintiff’s
conduct was of a sexual nature, and therefore treated as sexual harassment. (ECF No. 47 at 6).
Comparator’s conduct, Defendant contends, was properly viewed as less serious “horseplay.”
(ECF No. 47 at 6). However, the United States Court of Appeals for the Fourth Circuit recently
discussed comparator evidence, clarifying that, contrary to Defendant’s position here, a plaintiff
need not demonstrate that the comparator is identically situated to him for a valid comparison.
Haynes v. Waste Connections, Inc., ___ F.3d ___, 2019 WL 1768918, at *3-4 (4th Cir. Apr. 23,
2019). As the Haynes Court stated:
Turning first to the issue of an appropriate comparator, this Court
has emphasized that a comparison between similar employees “will
never involve precisely the same set of work-related offenses
occurring over the same period of time and under the same sets of
circumstances.” Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th
Cir. 1993). Rather, to establish a valid comparator, the plaintiff must
produce evidence that the plaintiff and comparator “dealt with the
same supervisor, [were] subject to the same standards and . . .
engaged in the same conduct without such differentiating or
mitigating circumstances that would distinguish their conduct or the
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employer’s treatment of them for it.” Haywood v. Locke, 387 F.
App’x 355, 359 (4th Cir. 2010) (quoting Mitchell v. Toledo Hosp.,
964 F.2d 577, 583 (6th Cir. 1992)).
Haynes, 2019 WL 1768918, at *3 (alterations and omission in original).
The Report accordingly concludes that the record here permits a reasonable inference that
Comparator’s act of slapping a subordinate coworker on the buttocks with an open palm while the
coworker was in a partial state of undress was comparably sexual in nature to Plaintiff’s poking or
“goosing” a subordinate with his thumb. (ECF No. 47 at 7). Whether this conduct is comparably
serious therefore lies with in the province of a jury. As the Haynes Court observed:
Taken as a whole, the evidence in the record could permit a
reasonable factfinder to conclude that Haynes and Hicks are proper
comparators. Because Haynes is similar to Hicks in all relevant
respects but was treated differently from Hicks, a white employee,
the district court erred in holding that Haynes had failed to establish
a proper comparator.
Id. at *4.
Secondly, the Report maintains that difference in victims’ responses to the instances of
conduct in question does not preclude a finding that the conduct was similar, thus making the
question of whether the conduct was sufficiently similar in nature and severity appropriate for a
jury to decide. (ECF No. 47 at 7-8). Here, Defendant seeks to distinguish Plaintiff’s conduct from
Comparator’s based on the victims’ responses, arguing that Plaintiff’s victim was so offended that
he pressed criminal charges (which were ultimately dismissed), while Comparator’s victim did not
pursue the matter beyond an initial complaint to his supervisor. (ECF No. 47 at 7). However,
nothing in the case law suggests that the victims’ decisions as to how to address similar misconduct
is a valid differentiating or mitigating circumstance to preclude a valid comparison. (ECF No. 47
at 7). In fact, as Plaintiff argues, the case law focuses on the nature of the offenses committed. See
Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4th Cir. 1985) (“The most important variables
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in the disciplinary context, and the most likely sources of different but nondiscriminatory
treatment, are the nature of the offenses committed and the nature of the punishments imposed.”).
The Report therefore concludes that Plaintiff presented sufficient evidence to establish a
prima facie case. (ECF No. 47 at 8). Moreover, because Defendant’s proffered legitimate,
nondiscriminatory reason for demoting Plaintiff also depends on distinguishing his conduct from
Comparator’s, the Report recommends allowing Plaintiff’s claim to proceed to trial by denying
the Motion. (ECF No. 47 at 8).
B. Briefs in Objection to, and Support of, the Report
In its Objections, Defendant argues the Magistrate Judge erred in finding Plaintiff
established a prima facie case of racially disparate discipline under the McDonnell Douglas
framework due to the lack of objective evidence that the City’s desperate disciplinary action was
motivated by racial discrimination as pretext for more severe discipline. (ECF No. 49 at 4). Further,
Defendant objects to the Magistrate Judge’s conclusion that the aforementioned conduct was
similar by reiterating the difference in victims’ responses to the alleged conduct, specifically
noting that the victim in the Comparator’s incident did not think his superior struck him in a sexual
manner, which was a legitimate and nondiscriminatory reason for the differing discipline under
the McDonnell Douglas framework, shifting the burden of proof back to Plaintiff, which
Defendant argues Plaintiff failed to uphold. (ECF No. 49 ta 3).
In Reply, Plaintiff reiterates that the conduct in both instances of contact was similar by
noting that “Plaintiff and the comparator were both officers who were supervised by Fire Chief
Jenkins and both engaged in physical contact with a subordinate’s buttocks. The only difference
was that Plaintiff used a single thumb to make physical contact, and the comparator used a palm .
. . ,” making the issue of the comparable seriousness of the acts ripe for the jury’s review. (ECF

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No. 53 at 3). Moreover, Plaintiff downplayed the Comparator’s victim’s belief that the conduct
against him was not sexual, reiterating the Magistrate Judge’s conclusion that “there is no existing
case law that takes into account the response of the object of the behavior at question when
assessing the similarities between misconduct in such a situation.” (ECF No. 53 at 3) (citing (ECF
No. 47 at 7)).
C. This Court’s Analysis
Despite Defendant’s claim that Plaintiff failed to prove racial discrimination as pretext for
disperate discipline, Plaintiff did present evidence (1) that he engaged in prohibited conduct similar
to that of a person of another race, color, sex, religion, or national origin; and (2) that disciplinary
measures enforced against him were more severe than those enforced against the other person. See
Lightner, 545 F.3d at 264-65. Thus, the Court is satisfied that Plaintiff has established a prima
facie case of discrimination for review by the jury.
Under the McDonnell Douglas test, after Plaintiff has established a prima facie case of
discrimination, the burden then shifts to Defendant to show a legitimate, non-discriminatory reason
for the differing discipline. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010).
Even though Defendant claims it presented such a reason, Defendant’s basis for its argument is
the differing responses of the victims. (ECF No. 49 at 3). However, a victim’s response is not
determinative of the nature of the conduct against him; the correct approach is an examination of
the nature of the conduct itself and the punishment imposed. Moore, 754 F.2d at 1105. No case
law supports Defendant’s assertion that “[t]he City is entitled to rely on the nature ascribed by the
victim as to whether contact/conduct felt sexual in nature.” (ECF No. 49 at 5). Thus, this Court
adopts the Report’s recommendation.

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IV.

CONCLUSION
After carefully reviewing the applicable laws, the record in this case, as well as the Report,

this Court finds the Magistrate Judge’s recommendation fairly and accurately summarizes the facts
and applies the correct principles of law. Accordingly, the Court adopts the Report, (ECF No. 47).
Therefore, Defendant’s Motion (ECF No. 33) is DENIED.
IT IS SO ORDERED.
August 15, 2019
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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