United States District Court, D. South Carolina, Columbia Division
WILLIE J. POLITE, Plaintiff,
CACI, INC. - FEDERAL, Defendant.
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
GEIGER LEWIS UNITED STATES DISTRICT JUDGE
filed this case as an employment discrimination action. The
parties are represented by counsel. The matter is before the
Court for review of the Report and Recommendation (Report) of
the United States Magistrate Judge suggesting Defendant's
motion for summary judgment be granted. The Report was made
in accordance with 28 U.S.C. § 636 and Local Civil Rule
73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (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 with instructions. 28 U.S.C. §
636(b)(1). The Court declines to conduct a de novo review,
however, “when a party makes 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 (4th Cir. 1982); see Fed. R. Civ. P. 72(b).
Magistrate Judge filed the Report on October 3, 2016,
Plaintiff filed his objections to the Report on October 28,
2016, and Defendant filed a reply on November 17, 2016. The
Court has reviewed the objections, but holds them to be
without merit. Therefore, it will enter judgment accordingly.
Plaintiff's objections, for the most part, he essentially
makes the same arguments he made to the Magistrate Judge, who
went into much detail explaining her reasons for rejecting
them. Plaintiff has failed to submit specific objections to
the Report, instead making general and conclusory objections
without identifying specific errors of fact or law relied on
by the Magistrate Judge. Nevertheless, in an abundance of
caution, the Court has teased out three objections and will
now address each of them in turn.
first appears to object to the Magistrate Judge's
recommendation that he abandoned his retaliation claim
because he failed to oppose or respond to Defendant's
motion for summary judgment on this claim. Plaintiff concedes
he has abandoned his claim pursuant to the Americans with
Disabilities Act (ADA). However, Plaintiff refers to his EEOC
intake questionnaire, ECF No. 75-1, which purportedly sets
forth facts of retaliatory conduct by Defendant, as his basis
for opposing summary judgment on his retaliation claim. The
cogency of Plaintiff's argument eludes the Court.
noted by the Magistrate Judge, Plaintiff refrained from
responding to Defendant's motion for summary judgment on
his retaliation claim. Because Plaintiff failed to respond to
Defendant's motion on his retaliation claim, the Court
will grant Defendant's motion for summary judgment on
Plaintiff's retaliation claim as unopposed. See
Vaughner v. Pulito, 804 F.2d 873, 877 n.2 (5th Cir.
1986) (“If a party fails to assert a legal reason why
summary judgment should not be granted, that ground is waived
and cannot be considered or raised on appeal.”).
Therefore, the Court will overrule Plaintiff's first
objection and grant Defendant's motion for summary
judgment as to Plaintiff's ADA and retaliation claims.
Plaintiff seems to object to the Magistrate Judge's
conclusion that Plaintiff failed to exhaust his
administrative remedies regarding his harassment claim.
Plaintiff relies on his initial EEOC Complaint as the basis
for exhausting his administrative remedies on his harassment
claim. The Court is unconvinced.
conclusory objection fails to point out any error in the
Magistrate Judge's conclusion. Moreover, Plaintiff
neglects to identify any portion of his charging documents
that raises a claim for harassment against Defendant during
the relevant time period. Thus, the Court holds Plaintiff
failed to exhaust his administrative remedies as to his
harassment claim. Therefore, the Court will overrule
Plaintiff's second objection as well and grant
Defendant's motion for summary judgment on
Plaintiff's harassment claim.
Plaintiff appears to object to the Magistrate Judge's
holding that Plaintiff failed to present any evidence to
establish a race discrimination claim. Plaintiff insists he
suffered race discrimination on two occasions during his
employment with Defendant, namely when he was hired on
September 22, 2012, and when he was terminated on May 15,
2013. Plaintiff alleges he was “demoted” when
Defendant hired him for a new position, and he takes issue
with the Magistrate Judge's consideration of Valerie
McCormick's declaration, ECF No. 59-4, detailing the
skills matrix Defendant used to conduct the reduction in
force that led to Plaintiff's termination.
Plaintiff's arguments strain the bounds of credulity.
contention that Defendant discriminated against him in hiring
by allegedly demoting him is meritless for the reasons stated
by the Magistrate Judge, and Plaintiff has failed to marshal
evidence showing otherwise. Rather, the record shows
Plaintiff was offered and accepted the job for the position
for which he applied.
Plaintiff's claim that the Magistrate Judge should have
refrained from considering McCormick's declaration is
fundamentally misguided. McCormick submitted her declaration
as authorized by statute, and the Magistrate Judge properly
considered the declaration in preparing the Report.
See 28 U.S.C. § 1746 (stating that unsworn
declarations meet the affidavit requirements if signed under
the penalty of perjury). Plaintiff has utterly failed to
present any material evidence to support his claim that
Defendant terminated him on the basis of race. Consequently,
the Court holds Plaintiff has failed to produce sufficient
evidence to establish a prima facie case of race
discrimination by Defendant. Therefore, the Court will
overrule Plaintiff's third objection and grant
Defendant's motion for summary judgment on
Plaintiff's race discrimination claim.
thorough review of the Report and the record in this case
pursuant to the standard set forth above, the Court overrules
Plaintiff's objections, adopts the Report, and
incorporates it herein. Therefore, it is the judgment of this