Smith v. Marion, City of
ORDER RULING ON REPORT AND RECOMMENDATION. The Report and Recommendation 63 is adopted and incorporated herein by reference. Therefore, it is ORDERED that Defendants Motion for Summary Judgment (ECF No. 36 ) is DENIED as t o Plaintiffs FMLA, SCHAL, and Title VII causes of action, and the remaining claims raised in Plaintiffs complaint, including all claims against Defendant Rodney Berry individually, are dismissed. Signed by Honorable Mary G Lewis on 09/27/2013. (dsto, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
Willie L. Smith,
) Civil Action No.: 4:11-2039-MGL
ORDER AND OPINION
City of Marion and Rodney Berry,
Plaintiff Willie L. Smith (“Plaintiff”) filed this action against City of Marion and Rodney
Berry, (“Defendants”) alleging claims against his former employer for age and race
discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
42 U.S.C. § 2000(e) et seq., the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601, et
seq. and the South Carolina Human Affairs Law (SCHAL), S.C. Code Ann. § 1-13-10, et
On September 10, 2012, Defendants filed a Motion for Summary Judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 36.) Plaintiff filed a response
in opposition on September 27, 2012, with additional attachments (ECF Nos. 39-44) and
Defendants filed a reply on October 12, 2012. (ECF No. 46.) In accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 D.S.C., this employment discrimination matter was
referred to United States Magistrate Judge Thomas E. Rogers, III, for consideration of
pretrial matters and a Report and Recommendation. The Magistrate Judge has prepared
a thorough Report and Recommendation which recommends that Defendants’ Motion for
Summary Judgment be denied as to Plaintiff’s FMLA, SCHAL, and Title VII causes of
(ECF No. 63.)
Defendants filed timely objections to the Report and
Recommendation. (ECF No. 67.) For the reasons set forth herein, this court adopts the
Report and Recommendation and Defendants’ Motion for Summary Judgment is denied
as to Plaintiff’s FMLA, SCHAL, and Title VII causes of action. Plaintiff’s remaining claims
raised in his complaint are dismissed as abandoned by Plaintiff.
BACKGROUND AND PROCEDURAL HISTORY
The Report and Recommendation sets forth in detail the relevant facts and
standards of law on this matter, and the court incorporates them and summarizes below
in relevant part. Plaintiff filed this matter on July 14, 2011, in the Marion County Court of
Common Pleas alleging age and race discrimination related to his employment. (ECF No.
1.) This matter was removed to this court by the Defendants on August 4, 2011. (ECF No.
1.) On September 10, 2012, Defendants moved for summary judgment. (ECF No. 36.)
After consideration of the response filed in opposition to the Motion for Summary Judgment
(ECF No. 39), several documents submitted in support of the opposition (ECF Nos. 40-44),
and Defendants’ reply (ECF No. 46), the Magistrate Judge issued a Report and
Recommendation recommending that Defendants’ Motion for Summary Judgment be
denied as to Plaintiff’s FMLA, SCHAL, and Title VII causes of action, and dismissing the
remaining claims raised in Plaintiff’s Complaint, including all claims against Defendant
Rodney Berry individually. (ECF No. 63.)
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this court.
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). The
court is charged with making a de novo determination of any portions of the 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 may
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).
The Magistrate Judge, upon review of the evidence, determined that Plaintiff
presented sufficient evidence to establish a prima facie case of retaliation in violation of the
FMLA and that an issue of fact remains as to whether Defendants’ reason for terminating
Plaintiff was pretext for a retaliatory reason. (ECF No. 63 at 13-15.) Accordingly, the
Magistrate Judge recommended that summary judgment be denied as to Plaintiff’s FMLA
claim. Similarly, the Magistrate Judge concluded that the issues of fact remaining as to
whether the reason given for Plaintiff’s termination was pretextual also preclude summary
judgment on Plaintiff’s Title VII and SCHAL claims. (ECF No. 63 at 16-20.) As noted by
the Magistrate Judge, Defendants asserted that the legitimate, non-discriminatory reason
for Plaintiff’s termination was Plaintiff’s conduct during the executive session of the City
Council meeting held on October 12, 2010, and that an issue of fact remained as to what
occurred at that meeting. (ECF No. 63 at 22.) The Magistrate Judge also noted that the
remaining claims of Plaintiff’s complaint, including Plaintiff’s claims against Defendant
Rodney Berry individually, should be dismissed as abandoned by Plaintiff. (ECF No. 63
Defendants filed objections to the Magistrate Judge’s Report and Recommendation.
(ECF No. 67.) First, Defendants acknowledge that for the purposes of summary judgment,
Defendants did not contest that Plaintiff had a prima facie case as to each of the relevant
claims. (ECF No. 67 at 2.) Defendants instead assert that the City of Marion had a
legitimate and non-discriminatory (non-retaliatory) reason for discharging Plaintiff.
Defendants disagree with the Magistrate Judge’s conclusion that a fact issue exists
as to whether the reason for the termination was pretextual based on any uncertainty as
to what occurred at the October 12, 2010 meeting. (ECF NO. 67 at 3.) Defendants argue
that any dispute over the extent and severity of the disagreement that occurred at the
October 12, 2010 meeting cannot establish pretext, particularly because all witnesses
agree Plaintiff was there to challenge his superior and a disagreement did ensue. (ECF
No. 67 at 6.) Defendants also disagree with the Magistrate Judge’s consideration of
temporal proximity and argue that the mere temporal proximity of Plaintiff’s discharge to his
FMLA leave is insufficient to warrant a denial of summary judgment. (ECF No. 67 at 6.)
Defendants also argue that alleged comments made about Plaintiff’s retirement do not
preclude summary judgment as to Plaintiff’s age discrimination claim and argue that the
Magistrate Judge incorrectly disregarded the context of the alleged comments. (ECF No.
67 at 6-11.) Finally, Defendants argue that the Magistrate Judge incorrectly credited “other
evidence” of racial animus as support for the Report and Recommendation. (ECF No. 67
at 11-14.) Plaintiff submitted a reply to Defendants’ objections to the Magistrate Judge’s
Report and Recommendation reiterating the evidence supporting a prima facie case on his
FMLA, Title VII, and SCHAL claims and also maintaining his challenge regarding pretext.
(ECF No. 73.)
As an initial matter, the court finds that the Magistrate Judge prepared an extensive
and detailed Report and Recommendation that appropriately addressed the parties’
arguments in light of the evidence presented and the applicable case law including the
burden-shifting analysis under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817 (1973). The court finds that the Magistrate Judge properly noted the record testimony
of two other witnesses, in addition to Plaintiff’s own account, which is indicative of an
existing issue of fact as to what occurred at the October 12, 2010 meeting. Plaintiff’s
response to the objections (and several attachments) only serve as further proof on the
point and this issue of fact bears on the viability of each of Plaintiff’s remaining claims.
Further, the Magistrate Judge also correctly cited Warren v. Halstead Industries, Inc., 802
F.2d 746, 758 (4th Cir. 1986) as evidence that close temporal proximity can also serve as
evidence of pretext.
This issue was one of several reasons the Magistrate Judge
considered in making his recommendation—hardly the sole reason for his findings. This
court further finds no error in the Magistrate Judge’s consideration of the age-related
comments. Considering Defendants’ acknowledgment regarding the establishment of
Plaintiff’s prima facie case, however, this issue need not even be reached. Additionally,
the most significant bases for the Magistrate Judge’s recommendation on racial
discrimination remain unchallenged, thus, Defendants’ arguments concerning the
Magistrate Judge’s consideration of other evidence of racial animus have no real bearing.
Accordingly, the court finds no error in the Magistrate Judge’s analysis and
The Magistrate Judge’s analysis evidences the great amount of care taken to
evaluate the evidence in light of the applicable factors and standards of law. Finally, the
court notes that Plaintiff makes no objection the Magistrate Judge’s recommended
dismissal of Plaintiff’s remaining claims, including all claims against Defendant Rodney
The court has carefully reviewed the objections made by Defendants and has
conducted the required de novo review. After considering the motion, the record, and the
Report and Recommendation of the Magistrate Judge, this court determines that the
Magistrate Judge’s recommended disposition is correct and the Report and
Recommendation is adopted and incorporated herein by reference.
Therefore, it is ORDERED that Defendants’ Motion for Summary Judgment (ECF
No. 36) is DENIED as to Plaintiff’s FMLA, SCHAL, and Title VII causes of action, and the
remaining claims raised in Plaintiff’s complaint, including all claims against Defendant
Rodney Berry individually, are dismissed.
IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
September 27, 2013
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