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Capone v. City of Columbia

United States District Court, District of South Carolina, Columbia Division

January 9, 2015

Terry H. Capone, Plaintiff,
City of Columbia, Defendant.


CAMERON MCGOWAN CURRIE Senior United States District Judge

Through this action, Plaintiff, Terry H. Capone (“Capone”) seeks recovery from his employer, the City of Columbia (“the City”), for alleged racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). Capone’s claims focus on the City’s delay in promoting him to the position of Battalion Chief.[1]Capone alleges the delay was due, at least in part, to a discriminatory “promotional testing scheme[.]” Objection at 1 (ECF No. 50). Capone also alleges that he was subjected to retaliatory discipline after he made complaints about perceived discrimination. Id. Finally, he alleges he was denied overtime pay to which he was entitled. Id.

The matter is before the court on the City’s motion for summary judgment. ECF No.37. For the reasons set forth below, the City’s motion is granted in full.


In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(g), D.S.C., this matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and a Report and Recommendation (“Report”). On December 2, 2014, the Magistrate Judge issued a Report recommending that the City’s motion for summary judgment be granted in full. Report, ECF No. 48. The Magistrate Judge advised the parties of the procedures and requirements for filing objections to the Report and the serious consequences if they failed to do so.

Capone filed timely objections on December 12, 2014, arguing that summary judgment should be denied as to all of his claims. ECF No. 50. The City responded on December 23, 2014, urging the court to adopt the Report in full and grant summary judgment on all claims. ECF No. 51.


The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Magistrate Judge’s 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 recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). In the absence of a specific objection, the court reviews the Report and Recommendation only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “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”) (citation omitted).


To constitute a “specific objection” warranting de novo review, an objection must be made with “sufficient specificity so as reasonably to alert the district court to the true ground for the objection.” U.S. v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007) (addressing specificity requirement in context of determining whether issue was preserved for appeal). To require less, would “defeat the purpose of requiring objections, ” because judicial resources would be wasted and the district court’s effectiveness would be undermined.” Id.; see also Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (court not required to conduct a de novo review when presented with only “general and conclusory objections that do not direct the court to a specific error in the magistrate’s proposed findings and recommendations”).

Although it is clear from his objections that Capone disagrees with each of the Magistrate Judge’s recommendations, Capone has not provided the degree of specificity necessary to entitle him to a de novo review. This is because Capone’s objections do little more than identify the recommendations to which he objects, followed by a superficial (and often inaccurate) characterization of previously cited evidence and arguments offered in his memorandum in opposition to summary judgment.

For example, Capone’s first objection challenges the recommendation that the court find he “cannot establish a prima facie case as it relates to comparing himself to a similarly situated individual outside of his protected class.” ECF No. 50 at 2. The entirety of Capone’s objection to this recommendation point is as follows:

Plaintiff presented evidence on the issue of whether or not he was treated differently than similarly situated individuals who were not African American. For example, Plaintiff directly compared himself to the following white firefighters:

Mike Harris, Captain Moore, Alpod Williams, and Captain Casola. Like Plaintiff and by virtue of his testimony, Plaintiff described how some of these men competed with him in the promotional testing process and were placed ahead of him on the promotional list. By virtue of the requirements for the testing process and based upon the theory of the testing as described by Tomes, the participants, before being scored, are similarly situated in their respective positions and lines of work because they are vying for the same promotion.
Plaintiff’s testimony and proffered evidence refutes the contention that he failed to establish the comparator prong of the prima facie test.

ECF No. 50 at 3.

This objection is too general to warrant de novo review because it fails to provide any detail as to why the four listed firefighters should be held to be appropriate comparators (and, consequently, why the Report erred in concluding they were not). Instead, it merely advises the court that Capone identified four white firefighters “some” of whom “competed with [Capone] in the promotional testing process and were placed ahead of him on the promotional list.” The objection does not indicate (1) which of these proposed comparators competed with Capone (he only indicates that “some” of them did), (2) for which positions they competed, or (3) how their scores and other qualifications for the particular position compare (he relies, instead, on the ...

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