United States District Court, D. South Carolina, Greenville Division
Bryan Harwell United States District Judge
matter is before the Court for consideration of
Plaintiff's objections to the two Reports and
Recommendations (“R & R”) of United States
Magistrate Judge Kevin F. McDonald. See ECF Nos. 19,
23, 31, & 33.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it 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. §
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
Plaintiff sues eight defendants alleging unlawful employment
discrimination. The Magistrate Judge has issued two separate
R & Rs, and Plaintiff has filed objections to each.
See ECF Nos. 19, 23, 31, & 33.
First R & R (Defendants Bill M., Jeter, Davis, Mattern,
Brokiskie, Compos, & John NLN)
first R & R, the Magistrate Judge recommends summarily
dismissing Defendants Bill M., Montre Jeter, Caleb Davis,
Chris Mattern, Tee Brokiskie, Michael Compos, and John NLN
because Plaintiff fails to state a claim against them.
See ECF No. 19; see generally 28 U.S.C.
§ 1915(e)(2)(B)(ii) (authorizing a district court to
summarily dismiss a case at any time if the court determines
the action “fails to state a claim on which relief may
be granted”). Specifically, the Magistrate Judge
concludes Plaintiff cannot sue these individual defendants
under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act of 1967
(“ADEA”), or 42 U.S.C. § 1983. ECF No. 19 at
p. 4 & n.1.
Plaintiff has filed objections to the first R & R,
see ECF No. 23, he fails to specifically object to
the Magistrate Judge's proposed finding that the above
seven defendants cannot be sued under Title VII, the ADEA, or
§ 1983. Accordingly, the Court has reviewed the
first R & R for clear error and found none, and will
therefore adopt it and summarily dismiss these defendants.
See Diamond, 416 F.3d at 315; Camby, 718
F.2d at 199-200.
Second R & R (Defendant Engineered Products,
second R & R, the Magistrate Judge recommends granting
the motion to dismiss filed by Defendant Engineered Products,
LLC. See ECF Nos. 26 & 31. Specifically, the
Magistrate Judge concludes: (1) Plaintiff's Title VII
race discrimination and retaliation claims are time-barred,
not subject to equitable tolling, and should be dismissed
pursuant to Fed.R.Civ.P. 12(b)(6); (2) Plaintiff's Title
VII sexual harassment claim and his claims under the ADEA,
Americans with Disabilities Act (“ADA”), and
Genetic Information Nondiscrimination Act
(“GINA”) should be dismissed pursuant to
Fed.R.Civ.P. 12(b)(1) because they were not alleged in the
charge he filed with the Equal Employment Opportunity
Commission (“EEOC”); and (3) Plaintiff's
§ 1983 claim should be dismissed because Plaintiff
represents that this claim should not have been filed in this
case. See ECF No. 31 at pp. 4-9.
has filed objections to the second R & R, but his only
specific objection is to the Magistrate Judge's finding
that Plaintiff is not entitled to equitable
tolling. See ECF No. 33 at pp. 1-2. The
Magistrate Judge has determined that Plaintiff filed an EEOC
charge on July 8, 2016; that the EEOC mailed Plaintiff a
notice of right to sue on September 2, 2016; that receipt
presumptively occurred by September 6, 2016; that the
ninety-day limitation period expired on December 5, 2016; and
that the earliest possible date Plaintiff could have filed
his complaint was December 21, 2016, over two weeks after the
limitation period ended-notably, Plaintiff does not object to
any of these findings. See ECF No. 31 at pp. 2-3, 6.
Instead, he simply objects to the Magistrate Judge's
conclusion that equitable tolling is not warranted.
See ECF No. 33 at p. 1.
VII plaintiff has ninety days to file suit after the EEOC has
given him notice of the right to sue. 42 U.S.C. §
2000e-5(f)(1); see Watts-Means v. Prince George's
Family Crisis Ctr., 7 F.3d 40, 42 (4th Cir. 1993).
“[T]he statutory time limits applicable to lawsuits
against private employers under Title VII are subject to
equitable tolling, ” but “[f]ederal courts have
typically extended equitable relief only sparingly.”
Irwin v. Dep't of Veterans Affairs, 498 U.S. 89,
95, 96 (1990). Equitable tolling is appropriate when
“the claimant has actively pursued his judicial
remedies by filing a defective pleading during the statutory
period, or where the complainant has been induced or tricked
by his adversary's misconduct into allowing the filing
deadline to pass.” Id. at 96 (internal
footnote omitted). It might also be justified where “a
claimant has received inadequate notice, or where a motion
for appointment of counsel is pending and equity would
justify tolling the statutory period until ...