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Cannon v. Equilon Enterprises, LLC

United States District Court, D. South Carolina, Charleston Division

August 15, 2017

Paul Cannon, Plaintiff,
Equilon Enterprises, LLC, d/b/a Shell Oil Products US, Defendant.


          PATRICK MICHAEL DUFFY United States District Judge

         This 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.


         The 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 note).


         Plaintiff 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.[1] 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 marks omitted).

         The 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.

         I. The But-For Causation Standard

         SOPUS first argues the Magistrate Judge improperly failed to apply the but-for causation standard in his pretext analysis.[2] 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.

         II. Three Types of Evidence

         SOPUS 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.

         A. “Double Temporal Proximity”

         In his 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.”).)

         SOPUS's 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 ...

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