Workman v. M. et al

Filing 35

ORDER RULING ON REPORT AND RECOMMENDATIONS 19 , 31 . The Court SUMMARILY DISMISSES Defendants Bill M., Montre Jeter, Caleb Davis, Chris Mattern, Tee Brokiskie, Michael Compos, and John NLN without prejudice and with out issuance and service of process. The Court GRANTS the motion to dismiss [ECF No. 26] filed by Defendant Engineered Products and DISMISSES this defendant without prejudice. Signed by Honorable R Bryan Harwell on 10/26/2017. (kric, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Olandio Ray Workman,

)
)
Plaintiff,
)
)
v.
)
)
Bill M., Montre Jeter, Caleb Davis, )
Chris Mattern, Tee Brokiskie,
)
Michael Compos, John NLN, and
)
Engineered Product Corporation, Co.,)
)
Defendants.
)
______________________________)

Civil Action No.: 6:17-cv-00972-RBH

ORDER

This matter is before the Court for consideration of Plaintiff’s objections to the two Reports and
Recommendations (“R & R”) of United States Magistrate Judge Kevin F. McDonald.1 See ECF Nos.
19, 23, 31, & 33.
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it may accept,
reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when

1

The Magistrate Judge issued the R & Rs in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2) (D.S.C.).

a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199–200 (4th Cir. 1983).
Discussion2
Plaintiff sues eight defendants3 alleging unlawful employment discrimination. The Magistrate
Judge has issued two separate R & Rs, and Plaintiff has filed objections to each. See ECF Nos. 19, 23,
31, & 33.
I.

First R & R (Defendants Bill M., Jeter, Davis, Mattern, Brokiskie, Compos, & John NLN)
In the first R & R, the Magistrate Judge recommends summarily dismissing Defendants Bill M.,

Montre Jeter, Caleb Davis, Chris Mattern, Tee Brokiskie, Michael Compos, and John NLN because
See ECF No. 19; see generally 28 U.S.C.

Plaintiff fails to state a claim against them.

§ 1915(e)(2)(B)(ii) (authorizing a district court to summarily dismiss a case at any time if the court
determines the action “fails to state a claim on which relief may be granted”). Specifically, the
Magistrate Judge concludes Plaintiff cannot sue these individual defendants under Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (“ADEA”), or 42 U.S.C.
§ 1983. ECF No. 19 at p. 4 & n.1.
2

The R & R summarizes the factual and procedural background of this case, as well as the applicable legal
standards.

3

The Magistrate Judge authorized partial service of process as to Defendant Engineered Products, LLC
(which is improperly identified in Plaintiff’s complaint as “Engineered Product Corporation, Co.”). See ECF No.
17.

2

Although Plaintiff has filed objections to the first R & R, see ECF No. 23, he fails to specifically
object to the Magistrate Judge’s proposed finding that the above seven defendants cannot be sued under
Title VII, the ADEA, or § 1983.4 Accordingly, the Court has reviewed the first R & R for clear error
and found none, and will therefore adopt it and summarily dismiss these defendants. See Diamond, 416
F.3d at 315; Camby, 718 F.2d at 199–200.
II.

Second R & R (Defendant Engineered Products, LLC)
In the second R & R, the Magistrate Judge recommends granting the motion to dismiss filed by

Defendant Engineered Products, LLC. See ECF Nos. 26 & 31. Specifically, the Magistrate Judge
concludes: (1) Plaintiff’s Title VII race discrimination and retaliation claims are time-barred, not subject
to equitable tolling, and should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6); (2) Plaintiff’s Title
VII sexual harassment claim and his claims under the ADEA, Americans with Disabilities Act
(“ADA”), and Genetic Information Nondiscrimination Act (“GINA”) should be dismissed pursuant to
Fed. R. Civ. P. 12(b)(1) because they were not alleged in the charge he filed with the Equal
Employment Opportunity Commission (“EEOC”); and (3) Plaintiff’s § 1983 claim should be dismissed
because Plaintiff represents that this claim should not have been filed in this case. See ECF No. 31 at
pp. 4–9.
Plaintiff has filed objections to the second R & R, but his only specific objection5 is to the

4

Instead, Plaintiff simply restates the types of claims— “discrimination,” “discharge,” “retaliation,” and
“harassment”— he wishes to bring against the seven individual defendants. See ECF No. 23.

5

The remainder of Plaintiff’s objections consist of a rehashing of his factual allegations and various legal
summaries. See ECF No. 33 at pp. 2–5.

3

Magistrate Judge’s finding that Plaintiff is not entitled to equitable tolling.6 See ECF No. 33 at pp. 1–2.
The Magistrate Judge has determined that Plaintiff filed an EEOC charge on July 8, 2016; that the
EEOC mailed Plaintiff a notice of right to sue on September 2, 2016; that receipt presumptively
occurred by September 6, 2016; that the ninety-day limitation period expired on December 5, 2016; and
that the earliest possible date Plaintiff could have filed his complaint was December 21, 2016, over two
weeks after the limitation period ended7—notably, Plaintiff does not object to any of these findings.
See ECF No. 31 at pp. 2–3, 6. Instead, he simply objects to the Magistrate Judge’s conclusion that
equitable tolling is not warranted. See ECF No. 33 at p. 1.
A Title VII plaintiff has ninety days to file suit after the EEOC has given him notice of the right
to sue. 42 U.S.C. § 2000e–5(f)(1); see Watts-Means v. Prince George’s Family Crisis Ctr., 7 F.3d 40,
42 (4th Cir. 1993). “[T]he statutory time limits applicable to lawsuits against private employers under
Title VII are subject to equitable tolling,” but “[f]ederal courts have typically extended equitable relief
only sparingly.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95, 96 (1990). Equitable tolling is
appropriate when “the claimant has actively pursued his judicial remedies by filing a defective pleading
during the statutory period, or where the complainant has been induced or tricked by his adversary’s
misconduct into allowing the filing deadline to pass.” Id. at 96 (internal footnote omitted). It might

6

The Magistrate Judge correctly notes Plaintiff fails to address equitable tolling in his response in opposition
to Defendant Engineered Products’ motion. See ECF No. 29. However, the Court will address Plaintiff’s equitable
tolling argument in light of its duty to consider all arguments, even those not presented to the Magistrate Judge. See
Samples v. Ballard, 860 F.3d 266, 272 (4th Cir. 2017) (“[A]s part of its obligation to determine de novo any issue
to which proper objection is made, a district court is required to consider all arguments directed to that issue,
regardless of whether they were raised before the magistrate.” (emphases removed) (quoting United States v. George,
971 F.2d 1113, 1118 (4th Cir. 1992))).

7

The Fourth Circuit has found equitable tolling was not warranted in shorter time contexts. See, e.g.,
Watts-Means v. Prince George’s Family Crisis Ctr., 7 F.3d 40, 41–42 (4th Cir. 1993) (no equitable tolling when the
plaintiff filed her complaint four days after the ninety-day limitation period); Harvey v. City of New Bern Police
Dep’t, 813 F.2d 652, 654 (4th Cir. 1987) (no equitable tolling when the complaint was filed one day after the
limitation period).

4

also be justified where “a claimant has received inadequate notice, or where a motion for appointment
of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon,
or where the court has led the plaintiff to believe that she had done everything required of her[.]”
Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (internal citations omitted) (citing, in
dicta, various circuit court decisions).
In his objections, Plaintiff asserts equitable tolling is appropriate because he has been confined
in a jail without a law library, has “no prior lawyer schooling,” only has a tenth-grade education, does
not have a lawyer, and “never filed legal paperwork till the day [he] turn[ed] in the following suit.”8
ECF No. 33 at p. 1. These assertions are not a basis for equitable tolling. See, e.g., Barrow v. New
Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir. 1991) (finding equitable tolling was not warranted in
an employment case due to “a plaintiff’s unfamiliarity with the legal process[,] his lack of representation
during the applicable filing period,” and his “illiteracy”). Significantly, Plaintiff admits in his
objections that he “had a copy of the EEOC right to sue form,” which specifically informed him on two
pages in conspicuous font that “Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this
notice; or your right to sue based on this charge will be lost,” and that “you must file a lawsuit against
the respondent(s)[9] named in the charge within 90 days of the date you receive this Notice.” ECF No.
26-2 at pp. 2–3 (emphases in original). See, e.g., Baldwin Cty., 466 U.S. at 151 (finding equitable
tolling was inappropriate in part because “[t]he right-to-sue letter itself stated that [the plaintiff] had the
right to sue within 90 days”); McCorkle v. BEB Wright, 2017 WL 3594256, at *2 (E.D.N.C. Aug. 21,
8

Plaintiff also alludes to the fact that the Court denied his motion to appoint counsel in the case from which
the instant action was severed, see Civ. No. 6:16-cv-04002-RBH-KFM, at ECF Nos. 12 & 22 (D.S.C.), but Plaintiff
did not file the motion to appoint counsel until January 24, 2017— over a month after the ninety-day limitation period
had already expired. Thus, the motion was not pending during the limitation period. Cf. Baldwin Cty., supra.

9

The EEOC charge lists the respondent’s name as “Engineered Products.” See ECF No. 26-1 at p. 2.

5

2017) (same). On these facts, the Court finds equitable tolling is not warranted.
In sum, Plaintiff did not file his complaint within the ninety-day limitation period, and he has
not demonstrated extraordinary circumstances that warrant equitable tolling. Consequently, his Title
VII race discrimination and retaliations claims are barred as untimely and must be dismissed.
Conclusion
For the foregoing reasons, the Court overrules Plaintiff’s objections and adopts and incorporates
by reference the Magistrate Judge’s two R & Rs [ECF Nos. 19 & 31]. The Court SUMMARILY
DISMISSES Defendants Bill M., Montre Jeter, Caleb Davis, Chris Mattern, Tee Brokiskie, Michael
Compos, and John NLN without prejudice and without issuance and service of process. The Court
GRANTS the motion to dismiss [ECF No. 26] filed by Defendant Engineered Products and
DISMISSES this defendant without prejudice.10
IT IS SO ORDERED.

Florence, South Carolina
October 26, 2017

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

10

In the Court’s view, Plaintiff cannot cure the defects in his complaint by amending it. See Goode v. Cent.
Virginia Legal Aid Soc’y, Inc., 807 F.3d 619, 623 (4th Cir. 2015). The Court therefore declines to automatically give
Plaintiff leave to amend.

6