Spellman v. City of Chesapeake, Virginia Public Schools et al

Filing 65

Memorandum Final Order ; granting 40 Motion for Summary Judgment; adopting Report and Recommendations re 61 Report and Recommendations. See Memorandum Final Order for details. Copies distributed as directed. Signed by District Judge Rebecca Beach Smith on 1/6/2020. (clou )

FILED
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA
Norfolk Division

JAN - 6 2020

DANNETTA G. SPELLMAN,

OLhHK, U.S. UlS j RIOT COURT
NORFOLK. VA

Plaintiff,
CIVIL NO. 2:17cv635

V,

THE SCHOOL BOARD OF THE CITY

OF CHESAPEAKE, VIRGINIA,
Defendant.
MEMORANDUM FINAL ORDER

This matter comes before the court on Defendant's Motion for

Summary Judgment

{""Motion"), and accompanying Brief in Support,

filed on April 23, 2019. ECF Nos. 40, 41.^ Plaintiff filed a Brief

in Opposition on May 8, 2019, ECF No. 42.^ Defendant filed a Reply
on May 16, 2019. ECF No. 49.
On May 17, 2019, this court referred the Motion to United

States

Magistrate

Judge

Lawrence

R.

Leonard,

pursuant

to

the

provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil

Procedure

72(b),

to

conduct

hearings,

including

evidentiary

hearings, if necessary, and to submit to the undersigned district
judge

proposed

findings

of

fact,

if

applicable,

and

recommendations for the disposition of the Motion. ECF No. 52. The

^ Defendant later filed an

amended Brief in Support. ECF

No. 50.

2 Plaintiff later filed an amended Brief in Opposition. ECF
No. 45.

Magistrate Judge held a hearing on the Motion on August 15, 2019.
ECF

No.

57.

The

Magistrate

Judge

then

ordered

Plaintiff

and

Defendant to submit additional evidence, ECF No. 58, which they
did on August 23, 2019, and August 30, 2019, respectively. ECF
Nos. 59, 60.

The

Magistrate

Judge

filed

the

Report

and

Recommendation

C'R&R") on October 15, 2019. ECF No. 61. The Magistrate
recommended

that

Defendant's

Motion

be

granted

and

Judge

Plaintiff's

Complaint be dismissed with prejudice. R&R at 1. By copy of the
R&R,

the

objections

parties

to

were

the

advised

findings

of their

and

right

to

recommendations

file

written

made

by

the

Magistrate Judge. See id. at 30-31. On October 29, 2019, Plaintiff
filed Objections to the R&R, ECF No. 62, and Defendant filed a
Response on November 12, 2019, ECF No. 64. Plaintiff requested a

hearing on her Objections. ECF No. 63.
I. LEGAL STANDARD

Pursuant

to

Rule

72(b)

of

the

Federal

Rules

of

Civil

Procedure, the court, having reviewed the record in its entirety,

shall make a ^ novo determination of those portions of the R&R to
which a party has '"properly objected." Fed. R. Civ. P. 72(b)(3).
The court may accept, reject, or modify, in whole or in part, the
recommendation of the Magistrate Judge, or recommit the matter to
him with instructions. 28 U.S.C. § 636(b) (1).

Objections,

however,

''must

be

made

with

sufficient

specificity so as reasonably to alert the district court of the
true ground of the objection." Scott v. Virginia Port Auth., No.
2:17CV176, 2018 WL 1508592 at *2 (E.D. Va. Mar. 27, 2018) (Jackson,

J.) (citation omitted). "General or conclusory objections are the
equivalent

of

a

waiver." Id.

Thus,

absent

a

specific,

proper

objection, the court only reviews for clear error. See Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see also, e.g.. United

States Underwriters Ins. Co. v. ITG Dev. Grp., LLC, 294 F. Supp.

3d 18, 23 (E.D.N.Y. 2018) ("The clear error standard also applies
when a party makes only conclusory or general objections."). The
court is not required to hold a hearing on the Motion. See Fed. R.
Civ. P. 78(b); E.D. Va. Civ. R. 7(J) .
II. DISCUSSION

Plaintiff makes three specific objections to the

R&R. The

court addresses each in turn.^

A. Hoik, Ward, and Hahn Affidavits

Plaintiff argues that the R&R

wrongly excluded affidavits

from Glenn Hoik, Patricia Ward, and Theresa Hahn. Objs. at 3. The

3 Importantly, the parties have had a full opportunity to
develop the facts in this case, which has been pending in this
court since December 2017. Discovery is complete, and the court
issued the Final Pretrial Order on June 7, 2019. ECF No. 55. The
case

was

scheduled

for

trial

on

June

25,

2019.

See

Rule

16(b)

Scheduling Order, ECF No. 39. The trial was removed from the docket

pending resolution of the Motion for Summary Judgment. ECF No. 56.

Magistrate Judge, however, correctly held that the Hoik, Ward, and
Hahn

affidavits

are

inadmissible

Procedure 56.'' See R&R at 6 n.3.

under

Federal

Rule

of

Civil

Rule 56 requires that an affidavit

be made '"on personal knowledge [and] set out facts that would be
admissible in evidence." Fed. R. Civ. P. 56(c)(4). The affidavits

do not meet either requirement. While the affidavits state that
the affiants were treated differently than Plaintiff, they do not
contain any basis for their assertions that this treatment was

because of discrimination. Instead, the affidavits simply claim,
without

any

support,

that

Plaintiff

was

treated

differently

because of her race and age. See, e.g.. Hoik Aff. SI 4, ECF No. 45-3

C'Spellman

and

I

were

subject

procedures

as

colleagues,

but

to

the

identical

Pinello

policies

discriminated

and

against

Spellman by applying those policies and procedures in a harsh and
discriminatory manner against Spellman without just cause or good
reason."); id.

SI

treated Spellman

8

(''I

have

no

doubt in

differently than

she

my mind that Pinello

treated

us as Spellman's

Caucasian co-coworkers because of Pinello's discriminatory bias
against Spellman."). As such, they are inadmissible. See, e.g.,
Crouse

v.

Wal-Mart

Stores

E.,

Inc.,

No.

1:01CV00079,

2002

WL

1046714 at *4 (W.D. Va. May 23, 2002) ("'Under Rule 56, affidavits
based merely upon personal belief are inadmissible.").

^ Plaintiff filed the Affidavits as exhibits to her Brief in

Opposition to Defendant's Motion. ECF Nos. 45-2, 45-3, 45-4.

Furthermore, even if admissible, the unsupported allegations
of differential treatment do not create a genuine issue of material
fact

that

precludes

Graves-Humphreys

Co.,

summary
818

F.2d

judgment.^
1126,

1128

See

Felty

(4th

Cir.

v.
1987)

(''Unsupported speculation is not sufficient to defeat a summary
judgment motion."); Ahmed v. Schnatter, No. CIV. S 00-2160, 2001

WL 1924523 at *2 (D. Md. Feb. 8, 2001), aff'd, 8 F. App'x 229 (4th
Cir. 2001) ("All that plaintiff brings forward are his subjective
beliefs,

and

discriminated

those
against

of
.

members
.

.

but

of
he

his

family,

has

failed

opposing material sufficient to generate a

that
to

he

submit

was
any

triable issue under

applicable case law . . . ."). Accordingly, the objection based on
the affidavits is OVERRULED.

B. Arlene Lee's Belief of Discrimination

Plaintiff objects to the R&R's conclusion that Arlene Lee's
statements regarding whether Plaintiff experienced discrimination
are inadmissible and irrelevant. Objs. at 6; see R&R at 6 n.5.

Plaintiff

and

Defendant dispute

whether

Ms.

Lee

believed

that

Plaintiff was subject to discrimination. See Am. Br. in 0pp. at
25, EOF No. 45. But whether or not Ms. Lee, a lay witness, believed
that Defendant discriminated against Plaintiff is not admissible.

See supra note 3.

because Plaintiff does not point to any factual basis for Ms. Lee's
testimony.^

Opinion testimony is only admissible where it is ''rationally
based on the witness's perception." Fed. R. Evid. 701(a); see also
United States v. Perkins^

470 F.3d 150, 155-56 (4th Cir. 2006)

("[L]ay opinion testimony must be based on personal knowledge.")
(emphasis omitted). Here, when asked, "[d]id it ever occur to you
that [the reason for Plaintiff's termination] could have been a

bias reason?", Ms. Lee stated, "Yes, sir." Lee Dep. at 33:11-13,
ECF No. 45-8. Plaintiff, however, does not point to any factual

basis for this belief."^ Accordingly, Ms. Lee's statement that it
occurred

"bias

to

her

that Plaintiff could

reason" does

not

meet

the

have

been

requirement

terminated for

that

lay

a

opinion

testimony be "rationally based on the witness's perception." Fed.
R. Evid. 701 (a).

Furthermore,
Plaintiff

"could

even
have"

if
been

admissible,
terminated

Ms.

Lee's

because

of

belief
bias

is

that
not

enough to create a genuine issue of material fact. See Felty, 818
F.2d at 1128; Ahmed, 2001 WL 1924523 at *2. Ms. Lee's testimony
that she did not believe Plaintiff was treated differently because
of her race or age buttresses this conclusion. See Lee Dep. at

^ See supra note 3.
See supra note 3.

25:11-20, ECF No. 41-3. Because Ms. Lee's testimony is inadmissible
and insufficient to create a genuine dispute of material fact,
Plaintiff's objection is OVERRULED.
C. Cat's Paw Liability

Plaintiff's final objection is that ''[t]he Magistrate Judge's
decision that the Cat's Paw theory insulates the defendant School
Board

from

liability

to

Spellman

is

incorrect."

Objs.

at

9.

Plaintiff supports this claim by arguing that Defendant reached
its

decision

alleged

bias

to

terminate

against

Plaintiff

Plaintiff.

because

Objs.

at

of

9-10.

Ms.

Pinello's

This

objection

misunderstands cat's paw liability. There is no evidence that bias
tainted Ms. Pinello's recommendation not to reemploy Plaintiff.

But even if there were. Defendant would only be liable if it relied
entirely on that tainted recommendation in terminating Plaintiff.

That is because ''the Fourth Circuit recognizes a 'cat's paw' theory
of

employment

discrimination

only

in

extremely

limited

circumstances where the formal decision-maker operates as such a
'rubber stamp' as to have effectively abdicated decision-making
authority to some lower-level subordinate." Zanganah v. Council of
Co-Owners of Fountains Condo., Inc., No. I:10cv219, 2010 WL 5113637

at *5 (E.D. Va. Dec. 8, 2010) (Brinkema, J.).

Here,

facts,

however.

which

show

Plaintiff

that

does

Defendant

not

did

dispute

the

not "rubber

following

stamp" Ms.

Pinello's recommendation. Five other individuals, in addition to

7

Ms. Pinello, evaluated Plaintiff's performance over the course of
her

employment.

R&R

at

29.

Human

Resources

recommended

that

Plaintiff's employment be terminated. Id. at 29-30. An independent
Hearing

Officer

recommended

that

Plaintiff's

employment

be

terminated. Id. at 30. Finally, Defendant voted unanimously to
uphold the
employment.

Hearing
Id.

Officer's

Plaintiff's

decision

to terminate

speculation

that

the

Plaintiff's

School

Board

members '^reached a decision . . . before the grievance record was
presented to the

School Board", Objs. at 9,

lacks any factual

basis.® Therefore, the R&R correctly held that there is no basis
for cat's paw liability here. Plaintiff's objection is OVERRULED.
D. Remainder of R&R

The

court

has

reviewed

the

remainder

of

the

R&R

for

clear

error, and finds none.
III. CONCLUSION

The court, having examined Plaintiff's Objections to the R&R,

and

having

made ^ novo

findings

with

respect

thereto,

does

OVERRULE Plaintiff's Objections. The court ADOPTS AND APPROVES IN
FULL the findings and recommendations set forth in the R&R of the
United States Magistrate Judge, filed on October 15, 2019. EOF No.

61.

Accordingly,

Defendant's

Motion

for

Summary

Judgment

is

GRANTED, and Plaintiff's Complaint is DISMISSED WITH PREJUDICE.

See supra note 3.

Plaintiff's Request for Hearing, ECF No. 63, is DENIED because a

hearing is not necessary to resolve the Motion.
The Clerk is DIRECTED to send a copy of this Memorandum Final
Order to the parties.
IT IS SO ORDERED.

JsL

Rebecca Beach Smith

Senior United States District Judge —
REBECCA BEACH SMITH

SENIOR UNITED STATES DISTRICT JUDGE

January

. 2020