United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
MARGARET B. SEYMOUR, Senior United States District Court
Brenda Toomer-Frazier (“Plaintiff”) brought this
action against the City of Columbia, an incorporated
municipality (“Defendant”), alleging that
Defendant engaged in intentional discrimination and
retaliation against Plaintiff in violation of 42 U.S.C.
matter is before the court on Defendant's Motion for
Summary Judgment. ECF No. 21. In accordance with 28 U.S.C.
§ 636(b) (2012) and Local Civil Rule 73.02, D.S.C., the
matter was referred to United States Magistrate Judge Paige
J. Gossett for a Report and Recommendation. The Magistrate
Judge filed a Report and Recommendation on June 28, 2016,
recommending that Defendant's Motion for Summary Judgment
be granted. ECF No. 35. Plaintiff filed objections to the
Report and Recommendation on July 15, 2016. ECF No. 36.
Defendant filed a response on July 20, 2016. ECF No. 37.
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
this court. Mathews v. Weber, 423 U.S. 261, 270
(1976). The court is charged with making a de novo
review of any portions of the Report and Recommendation to
which a specific objection is made. Id. The district
court need not conduct a de novo review when a party
makes only general and conclusory objections that do not
direct the court to a specific error in the Magistrate
Judge's proposed findings and recommendations.
Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir.
1982). The court may accept, reject, or modify, in whole or
in part, the recommendation made by the Magistrate Judge. 28
U.S.C. § 636(b)(1).
judgment should be granted “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). A fact is “material” if proof
of its existence or non-existence would affect the
disposition of the case under the applicable law.
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248-49
(1986). A genuine question of material fact exists where,
after reviewing the record as a whole, the court finds that a
reasonable jury could return a verdict for the nonmoving
party. Newport News Holdings Corp. v. Virtual City
Vision, 650 F.3d 423, 434 (4th Cir. 2011).
launches two objections to the Report and Recommendation.
First, Plaintiff argues that while the Magistrate Judge
considered Plaintiff's intentional discrimination cause
of action, the Magistrate Judge “completely
ignored” Plaintiff's retaliation cause of action.
ECF No. 36 at 1. Second, Plaintiff objects to the Magistrate
Judge relying on a Supreme Court precedent, Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701 (1989), which has
been recognized as superseded by statute by certain courts.
Id. at 2. The court will address these objections
initial matter, the Magistrate Judge's reliance on
Jett, 491 U.S. at 701, is proper. In Jett,
the Supreme Court held that 42 U.S.C. § 1983 provided
the exclusive federal remedy for alleged violations of 42
U.S.C. § 1981 brought against municipalities. However,
this holding has been questioned following the Civil Rights
Act of 1991, which added an amendment to § 1981:
(c) The rights protected by this section are protected
against impairment by nongovernmental discrimination and
impairment under color of State law.
Court of Appeals for the Ninth Circuit interpreted this new
subsection (c) as permitting direct causes of action against
state actors for violations of § 1981, and thus
overturning Jett. See Fed'n of
African Am. Contractors v. City of Oakland, 96 F.3d
1204, 1214 (9th Cir. 1996). The Court of Appeals for the
Fourth Circuit, however, has offered a different
interpretation. In Dennis v. County of
Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir. 1995), the
Fourth Circuit stated that the amendment to § 1981 did
not overrule Jett. Given this direct precedent, the
Magistrate Judge was correct to rely on Jett and its
progeny in framing her analysis.
Plaintiff's first objection, she argues that the
Magistrate Judge overlooked Plaintiff's retaliation
claim. ECF No. 36 at 1. On the contrary, the Magistrate Judge
considered Plaintiff's intentional discrimination and
retaliation claims together, as they were both brought
under§ 1981. ECF No. 35 at 5. Relying on Jett
and Dennis, the Magistrate Judge found that
Plaintiff's claims must be analyzed under a § 1983
framework. ECF No. 35 at 5. Under § 1983, a plaintiff
must show that “the violation of his ‘right to
make contracts' protected by § 1981 was caused by a
custom or a policy . . . .” Jett, 491 U.S. at
735-36. Plaintiff failed to identify or allege that Defendant
had violated any such custom or policy. ECF No. 35 at 6.
counters that a “custom or policy” need not be
considered in evaluating a retaliation cause of action.
Plaintiff cites a number of cases for the proposition that
courts are not limited to the § 1983 framework in
analyzing retaliation claims. See Minor v. Bostwick
Labs., Inc., 669 F.3d 428, 436 (4th Cir. 2012);
Smith v. Bray, 681 F.3d 888, 895 (7th Cir. 2012).
However, the cases Plaintiff relies upon only address
retaliation claims brought against private actors. Plaintiff
offers no precedential authority stating that a retaliation
claim against a state actor should be analyzed outside the
confines of § 1983. The court, also finding no
contradictory authority, finds that the Magistrate Judge
properly considered and dismissed Plaintiff's retaliation
cause of action. There can be no genuine issue of material
fact because Plaintiff has failed to assert a cause of action
under § 1983. Plaintiff's first objection is without
in her second objection, Plaintiff merely reiterates her
disagreement with the Magistrate Judge's reliance on
Fourth Circuit precedent in light of contravening Ninth
Circuit precedent. ECF No. 36 at 5. However, the court finds
that the Magistrate Judge properly relied on the Fourth
Circuit precedent. Chisolm v. TranSouth Fin. Corp.,
95 F.3d 331, 337 n.7 (4th Cir. 1996) (“[W]e are bound
to apply circuit precedent until it is either ...