United States District Court, D. South Carolina, Charleston Division
PATRICK MICHAEL DUFFY United States District Judge
matter is before the Court on United States Magistrate Judge
Kevin F. McDonald's Report and Recommendation (“R
& R”) (ECF No. 86). In his R & R, the
Magistrate Judge recommends the Court partially grant and
partially deny Defendant Equilon Enterprises, LLC's
(“SOPUS”) motion for summary judgment (ECF No.
57). SOPUS objects to portions of the R & R. (ECF No.
86.) For the following reasons, the Court overrules
SOPUS's objections, adopts the R & R, and disposes of
SOPUS's motion as the Magistrate Judge recommends.
Magistrate Judge makes only a recommendation to this Court.
The R & R has no presumptive weight, and the
responsibility for making a final determination remains with
the Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). This Court must conduct a de novo review of any
portion of the R & R to which a timely, specific
objection is made, and the Court may accept, reject, or
modify the Magistrate Judge's findings and
recommendations in whole or in part. Id.
Additionally, the Court may receive more evidence or recommit
the matter to the Magistrate Judge with instructions.
Id. A party's failure to object is taken as the
party's agreement with the Magistrate Judge's
conclusions. See Thomas v. Arn, 474 U.S. 140 (1985).
Absent a timely, specific objection-or as to those portions
of the R & R to which no specific objection is made-this
Court “must ‘only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.'” Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
Paul Cannon asserts that SOPUS, his former employer,
unlawfully fired him in retaliation for taking leave
guaranteed to him under the Family Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et
seq. Such claims can be proven using the
three-step framework the Supreme Court laid out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Waag v. Sotera Defense Solutions, Inc., 857
F.3d 179, 192 (4th Cir. 2017). At the first step, the
plaintiff must establish a prima facie FMLA
retaliation claim. Id. If he does, retaliation is
presumed. Id. At the second step, the defendant must
produce evidence that rebuts the presumption and provides a
legitimate, nondiscriminatory explanation for the adverse
employment action. Id. (citation omitted). If the
defendant meets that burden, the third step is for the
plaintiff to persuade the factfinder that the defendant's
proffered explanation is merely a pretext for retaliation,
which the plaintiff can do “by showing either that the
employer's explanation is not credible, or that the
[defendant]'s decision was more likely the result of
retaliation.” Id. (citation and quotation
parties agree that the first and second steps have been
satisfied here. The question, then, is narrow: whether Cannon
has come forward with evidence that would allow a reasonable
jury to determine SOPUS's proffered reason for firing
him-dishonestly seeking reimbursement for expenses not
payable under company policy-is pretext for FMLA retaliation.
The Magistrate Judge concluded Cannon met that burden. SOPUS
makes three objections to that conclusion.
The But-For Causation Standard
first argues the Magistrate Judge improperly failed to apply
the but-for causation standard in his pretext
analysis. To be sure, the phrase “but
for” does not appear in the R & R. The Magistrate
Judge, however, made clear that he was applying McDonnell
Douglas, a framework the Fourth Circuit has said
“demand[s] proof at the pretext stage that retaliation
was a but-for cause of a challenged adverse employment
action.” Foster v. Univ. of Md.-E. Shore, 787
F.3d 243, 252 (4th Cir. 2015). Thus, by applying
McDonnell Douglas, the Magistrate Judge did what
SOPUS wanted him to do. The objection is therefore overruled.
Three Types of Evidence
next objects to the Magistrate Judge's reliance on three
types of evidence in the record: (1) evidence of temporal
proximity; (2) evidence of SOPUS misstating facts to the
EEOC; and (3) evidence of SOPUS inconsistently applying the
policy Cannon purportedly violated. For the following
reasons, the Court overrules the objections.
“Double Temporal Proximity”
discussion of pretext, the Magistrate Judge pointed out there
is evidence indicating that SOPUS began investigating
Cannon's expense requests shortly after he said he needed
to take medical leave and that it fired him one day after he
returned from leave. SOPUS argues the Magistrate erred in
finding this “double temporal proximity” was
“sufficient to support a finding of pretext.”
(Mem. Supp. Def.'s Objs., ECF No. 86-1, at 8; see
also Id. at 10 (“[T]he Magistrate Judge erred by
finding the temporal proximity of the decision to terminate
would permit a reasonable jury to conclude pretext.”).)
argument misapprehends the Magistrate Judge's analysis.
The Magistrate Judge did not say that the two instances of
temporal proximity were, by themselves, sufficient to create
a jury question. Rather, the Magistrate Judge treated those
instances as two pieces of a larger evidentiary landscape
that, in his view, contains a triable issue of fact on
pretext. That was proper. S ...