United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge.
this action, Plaintiff Selena Sumter ("Plaintiff")
seeks recovery from her former employer, Jenny Craig, Inc.
("JCI"), for alleged employment discrimination
based on her race, pursuant to 42 U.S.C. § 2000e, et
seq.; for discrimination based on her age, pursuant to
29 U.S.C. § 621, and for defamation. ECF. No. 1,
Attachment 1. She also asserts a claim of civil conspiracy
against Tamara Draut ("Draut"), Krystian Ellisor
("Ellisor"), and Josephine Lenartz
("Lenartz"), collectively, the "Individual
Defendants." Id. The matter is before the court
on Defendants' Motion for Summary Judgment, filed
December 16, 2015. ECF No. 22. Plaintiff filed her response
in opposition on January 4, 2016. ECF No. 24. Defendants
filed a reply on January 11, 2016. ECF No. 25.
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 Shiva V. Hodges for pre-trial
proceedings and a Report and Recommendation
("Report"). On March 23, 2016, the Magistrate Judge
issued a Report recommending that Defendant's motion for
summary judgment be granted. ECF No. 30. 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. Plaintiff was granted an extension
of time to file objections to the Report (ECF No. 38), and
filed her objections on April 25, 2016. ECF No. 39.
Defendants filed a reply on May 9, 2016. ECF No. 40. This
matter is now ripe for resolution.
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. Mathews v. Weber, 423 U.S. 261 (1976). The
court is charged with making a de novo determination
of those portions of the Report to which specific objection
is made, and the court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge,
or recommit the matter to the Magistrate Judge with
instructions. 28 U.S.C. § 636(b)(1). The court reviews
only for clear error in the absence of an objection. 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.'") (quoting Fed.R.Civ.P. 72 advisory
Judgment is appropriate "if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). On a motion for summary judgment, the
district court must "view the evidence in the light most
favorable to the nonmoving party." Jacobs v. N.C.
Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir.
2015) (citing Tolan v. Cotton, 134 S.Ct. 1861, 1868
(2014) (per curiam)). "Summary Judgment cannot be
granted merely because the court believes that the movant
will prevail if the action is tried on the merits."
Id. Therefore, the court cannot weigh the evidence
or make credibility determinations. Id. at 569. The
district court may not "credit the evidence of the
party seeking summary judgment and fail properly to
acknowledge key evidence offered by the party opposing that
motion." Id. at 570. However, a party
"cannot create a genuine issue of material fact through
mere speculation or the building of one inference upon
another." Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985). Therefore, "[m]ere unsupported
speculation . . . is not enough to defeat a summary judgment
motion." Ennis v. National Ass'n of Bus. & Educ.
Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
conducting a de novo review as to the objections
made, and considering the record, the applicable law, and the
Report and Recommendation of the Magistrate Judge, the court
agrees with the Report's recommendation that
Defendants' motion for summary judgment should be
granted. Accordingly, the court adopts the Report by
reference in this Order, going beyond the reasoning of the
Report where necessary to address the entirety of
Plaintiff's claims. For the reasons stated in the Report
and as further addressed below, Defendants are entitled to
summary judgment on all claims.
presents three objections to the Report, essentially arguing
that the Magistrate Judge's findings regarding each of
her claims were error and that all claims should survive
summary judgment. The objections are discussed below in turn.
Plaintiff's Federal Discrimination Claims
argues that the Magistrate Judge erred in finding that her
race and age discrimination claims fail as a matter of law.
This objection focuses on the Report's finding that
Plaintiff did not offer valid comparators to establish the
fourth element of her prima facie case in the pretext
framework for demonstrating discrimination. ECF No. 39, at 8;
ECF No. 30, at 10-12.
Plaintiff argues that Ellisor is a valid comparator, and that
the Magistrate Judge did not consider the totality of the
evidence regarding this issue. However, this court finds
that, while Ellisor later occupied the same supervisory
position from which Plaintiff resigned, and complaints were
made about her as a supervisor, there is simply not enough
evidence of similarity to consider Ellisor a valid
comparator. First, there is no evidence as to the nature of
the complaints against Ellisor. Therefore, the court is
unable to determine whether the complaints against Ellisor
were as serious in nature as those against Plaintiff. In
addition, while Plaintiff argues that a specific employee
made seven complaints against Ellisor, and only one complaint
about Plaintiff when she was in the same position, it is
undisputed that Plaintiff was the subject of complaints made
by other employees as well, and was written up at least once
regarding a complaint. Finally, there is no evidence
regarding JCI's response to any of the complaints against
Ellisor to determine whether the employer treated Plaintiff
differently, either during or after its investigation of any
complaint, or if any complaint was serious enough for JCI to
write Ellisor up or otherwise discipline her. Therefore, as
Plaintiff does not have sufficient evidence regarding her
only alleged comparator, she is unable to show she was
treated differently. Thus, Plaintiff is unable to state a
claim for discrimination based on race or age.
does not specifically object to any other aspect of the race
or age discrimination claims. Although Plaintiff
"further relies on the evidence and arguments presented
in her brief to establish pretext for summary judgment, which
the Plaintiff cites to and incorporates herewith, "
de novo review is not required when objections are
general and conclusory. Smith v. Nuth, 98 F.3d 1335
(Table), 1996 WL 593792 at *1 (4th Cir. 1996) (citing
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982)).
Specific objections are necessary in order to focus the
court's attention on disputed issues. Thomas v.
Arn, 474 U.S. 140, 147-48 (1985). Because general
objections do not direct the court's attention to any
specific portions of the report, general objections to a
magistrate judge's report are tantamount to a failure to
object. Smith, 98 F.3d at 1335; Howard v.
Secretary of Health & Human Servs., 932 F.2d 505, 509
while the court has considered Plaintiff's objection
de novo, it reviews the remainder of the
discrimination portion of the Report for clear error only.
Finding none, the court adopts this portion of the Report in
its entirety and ...