United States District Court, D. South Carolina, Columbia Division
CAMERON McGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
This matter is before the court on Plaintiff’s pro se complaint. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(g), DSC, the matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and a Report and Recommendation (“Report”). On May 15, 2015, the Magistrate Judge issued a Report and Recommendation (“Report II”) recommending that Defendant’s motion for summary judgment be granted and this matter dismissed with prejudice. The Magistrate Judge advised the parties of the procedures and requirements for filing objections to Report II and the serious consequences if they failed to do so. Plaintiff filed objections to Report II on June 5, 2015. Defendant replied to Plaintiff’s objections on June 22, 2015. Fed.R.Civ.P. 72(b)(2).
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. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge 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).
After reviewing the record of this matter, the applicable law, the Report and Recommendation of the Magistrate Judge, Plaintiff’s objections and Defendant’s reply to the objections, the court agrees with the conclusions of the Magistrate Judge relating to Plaintiff’s hostile work environment claim and any attempt by Plaintiff to reopen his whistleblower claim. However, Report II recommends granting summary judgment to Defendant on Plaintiff’s retaliation claim based on a ground not raised by Defendant: that Plaintiff failed to make out a prima facie case of retaliation.
The court declines to adopt Report II’s recommendation of summary judgment on Plaintiff’s retaliation claim. Otherwise, the court adopts and incorporates the Report and Recommendation by reference in this Order except as discussed below.
I. Plaintiff’s Objections
The majority of Plaintiff’s objections are conclusory and without merit. For example, Plaintiff maintains that in several instances, the Magistrate Judge “simply incorrectly evaluated facts, ” see Objections at 3, but these objections fail to establish any actual error in Report II. Additionally, Plaintiff disagrees with the Magistrate Judge’s denial of reinstatement of his whistleblower claim. Id. at 10. However, as correctly found by the Magistrate Judge, this court does not have jurisdiction to entertain a claim under the Whistleblower Act, 10 U.S.C. § 1587.
Defendant argues in reply to Plaintiff’s objections, inter alia, that Report II “properly rejected Plaintiff’s argument that the Inspector General Report constitutes evidence of reprisal, ” and that Report II was “correct” in finding that Plaintiff “failed to demonstrate that his performance evaluation had any detrimental impact on [Plaintiff].” Reply to Obj. at 4, 5, ECF No. 102.
II. Summary Judgment Arguments
A. Subject Matter Jurisdiction
Defendant presents four grounds for summary judgment. The first is that this court lacks subject matter jurisdiction over Plaintiff’s remaining retaliation claim, as Plaintiff’s deposition testimony reveals that he “considers his [February 28, 2011 evaluation] to be the product of whistleblower retaliation, not retaliation for his complaints of gender discrimination under Title VII.” Mem. Supp. at 12, ECF No. 79-1. According to Defendant, this “clarification” divests this court of jurisdiction over Plaintiff’s retaliation claim.
Initially, Defendant sought to dismiss this matter pursuant to Rule 12(b)(1) arguing, inter alia, that “[t]o the extent [Plaintiff] attempts to raise a Title VII claim concerning annual performance appraisals, he did not exhaust his administrative remedies as to this claim.” Mem. Supp. M. at 1, ECF No. 24-1. This argument was rejected by a Report and Recommendation (“Report I”) filed by the Magistrate Judge on July 28, 2014, as well as by this court’s Opinion and Order (“Order”) adopting Report I, filed September 10, 2014. ECF No. 62. Both Report I and the Order adopting it specifically found Plaintiff had sought to amend his EEO filing to assert a claim of retaliation, that this attempt had been thwarted, and that, under Fourth Circuit law,  Plaintiff was not precluded from raising his Title VII retaliation claim – a distinct claim from that of retaliatory harassment – in this court.
The parties do not dispute that Plaintiff filed an informal complaint with the Fort Jackson Equal Opportunity (EEO) office on November 15, 2010, alleging discrimination and harassment based on his gender. The alleged discriminating official was his supervisor, Sandra Madera (Madera), and she learned of the EEO complaint in the December 2010 – January 2011 time frame. Plaintiff filed a formal EEO complaint with the Fort Jackson EEO office on January 27, 2011. See Mem. Supp. at 7 ¶ 12, ECF No. 79-1 (noting“Undisputed Facts”). Plaintiff’s Annual Performance Review for the period March 2010 through February 28, 2011, was drafted by Madera prior to March 11, 2011, and resulted in an overall rating of “Satisfactory.” Id. at 8 ¶ 13. For the prior two rating periods, Plaintiff had received Annual Performance Review ratings of “Excellent.”
Plaintiff sought to amend his January 2011 EEO complaint to add a claim of retaliation after he received the “Satisfactory” Annual Performance Review. See Pla’s Declaration at 1, ECF No. 48-1 at 24 (“On April 1, 2011, I timely visited the EEO office within (45) days under the statute of limitation [to] try and file the Retaliation, and Whistleblower Protection Act, complaint against my employer by request[ing] to have the previous[ly] filed EEO complaint, dated January 27, 2011 amended. [The] EEO officer refused to file my complaints.”). Thwarted in his attempt to amend his EEO filing to include a retaliation claim, Plaintiff moved forward with a claim of whistleblower reprisal pursuant to 10 U.S.C. § 1587, as implemented by Department of Defense (DoD) Directive 1401.03. On May 22, 2012, the DoD-IG issued a report substantiating Plaintiff’s complaint that he had been retaliated against by Madera and recommending that Plaintiff’s “performance appraisal for the period ending February 28, 2011, [be rescinded] and substitute a new appraisal that accurately reflects Complainant’s job performance.” Whistleblower Reprisal Investigation Report No. 2011120495-294 at 8, ECF No. 79-13.
Having previously been unsuccessful in arguing failure to exhaust as to the Title VII retaliation claim (based on the February 2011 performance rating), Defendant, citing Plaintiff’s deposition testimony (Depo. of Michael Cornelius, Sr., ECF No. 79-2), now alters course and argues that the court lacks jurisdiction over Plaintiff’s Title VII retaliation claim because it is really a claim for whistleblower relief. No legal authority is cited for this novel proposition. Title VII provides different remedies than administrative whistleblower relief under 10 U.S.C. § 1587, and there has been no waiver ...