United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
matter is before the Court on the Report and Recommendation
("R. & R.") of the Magistrate Judge (Dkt. No.
24) recommending that the Court grant Defendant's partial
motion to dismiss (Dkt. No. 6). For the reasons set forth
below, this Court adopts the R. & R. as the order of the
Court. Defendant's partial motion to dismiss (Dkt. No. 6)
Complaint, Plaintiff alleges causes of action based on age
discrimination under the Age Discrimination Employment Act
("ADEA") and wrongful termination in violation of
public policy. (Dkt. No. 1-1.) The Magistrate has provided a
thorough summary of the alleged facts in the R. & R.
(Dkt. No. 24 at 1-2), so the Court need not repeat them here.
Essentially, Plaintiff alleges that he was disciplined and
terminated due to his age and in retaliation for his
complaints about quality and safety.
Legal Standard - Magistrate's Report and
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. See Mathews v. Weber, 423 U.S. 261,
270-71 (1976). This Court is charged with making a de
novo determination of those portions of the R. & R.
to which specific objection is made. Fed.R.Civ.P. 72(b)(2).
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). If
the plaintiff fails to file any specific objections, this
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." See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(internal quotation omitted).
R. & R., the Magistrate recommended that this Court grant
Boeing's motion to dismiss Plaintiffs claim for wrongful
termination in violation of public policy because (1)
Plaintiff had an existing statutory remedy to pursue his
claims under the Wendell H. Ford Air and Investment Reform
Act for the 21st Century ("AIR21"), 49 U.S.C.
§ 42121; and (2) Plaintiff has not alleged facts which
show a violation of a clear mandate of public policy. The
Magistrate explained that while an at-will employee may have
a cause of action in tort for a wrongful termination that
violates a clear mandate of public policy, the public policy
exception does not apply in cases where Plaintiff could avail
himself of an existing statutory remedy. (Dkt. No. 24 at 4.)
Plaintiff has argued that his complaints related to both
safety and quality so were not adequately covered by
the AIR21 statutory remedy, the Magistrate found that, in the
aircraft context, safety and quality are one and the same. In
response to Plaintiffs argument that the AIR21 statutory
remedy is only available to individuals who had made a report
within the AIR21 framework., the Magistrate explained that
Plaintiffs failure to exercise his rights under AIR21 does
not create a cause of action in federal court. (Dkt. No. 24
at 7.) Finally, the Magistrate explained that Plaintiff did
not identify any specific law that he was required to break
as a condition of employment or how his termination was
illegal, so he has not alleged facts that support invocation
of the public policy exception to at-will employment. (Dkt.
NO. 24 at 8-9
document filed by Plaintiffs counsel as Objections to the
Magistrate's R. & R. (Dkt. No. 29) is in fact an
almost verbatim copy of Plaintiffs Response to
Defendant's Motion to Dismiss (Dkt. No. 13.) Pages 1-8 of
the Objections are copied directly from Plaintiffs response
to the motion to dismiss (Dkt. No. 13) with the sole addition
of the legal standard for a district Court's review of
the Magistrate's R. & R. Pages 9 and 10 of the
Objections are a verbatim copy of factual allegations from
Plaintiffs complaint. (Dkt. No. 1-1 at 12-13.) Only the final
two paragraphs of Plaintiff s twelve pages of Objections have
not been copied and pasted from prior pleadings. (Dkt. No. 29
at 10-11.) In those paragraphs, Plaintiffs argues that
"The Defendant interfered with the Plaintiffs position
as a quality inspector and refused to allow the Plaintiff to
do his job as a Quality inspector. The Plaintiff reported
those refusals of the Defendant. The Plaintiff was terminated
in retaliation for his refusal to pass planes that did not
meet guidelines as established by the Federal Government and
Boeing." (Dkt. No. 29 at 10-11.) This argument is a
paraphrased version of the argument advanced by Plaintiffs
counsel in Plaintiffs Response to Defendant's Motion to
Dismiss. (Dkt. No. 13 at 14-15.)
United States District Court for the Western District of
Virginia once had the opportunity to review Objections to a
Magistrate's Report and Recommendation that were copied
directly from prior pleadings and determined that this
practice does not constitute specific written objections so
is not entitled to de novo review:
A general objection such as that offered by Plaintiff fails
to satisfy the requirements of Rule 72(b) and 28 U.S.C.
§ 636(b)(1)(C). See United States v. Midgette,
478 F.3d 616, 621-22 (4th Cir.2007) ("Section 636(b)(1)
does not countenance a form of generalized objection to cover
all issues addressed by the magistrate judge; it contemplates
that a party's objection to a magistrate judge's
report be specific and particularized...."); Page v.
Lee, 337 F.3d 411, 416 n. 3 (4th Cir.2003)
("[Petitioner's failure to object to the magistrate
judge's recommendation with the specificity required by
the Rule is, standing alone, a sufficient basis upon which to
affirm the judgment of the district court....").
Accordingly, "[a] general objection to the entirety of
the magistrate's report has the same effects as would a
failure to object." Howard v. Sec'y of Health
and Human Servs,, 932 F.2d 505, 509 (6th Cir.1991);
see also Hyatt v. Town of Lake Lure, 314 F.Supp.2d
562, 580 (W.D. N.C. 2003).
Veney v. Astrue, 539 F.Supp.2d 841, 845 (W.D. Va.
2008). The court went on to explain why general objections in
the form of repackaged prior pleadings are disfavored:
In short, unsatisfied by the findings and recommendations in
the Report, Plaintiff has simply ignored it, attempting
instead to seek re-argument and reconsideration of her ...