United States District Court, D. South Carolina, Columbia Division
Jason S. Bair, Plaintiff,
South Carolina Department of Public Safety, Defendant.
OPINION AND ORDER
CAMERON MCGOWAN CURRIE, SENIOR UNITED STATES DISTRICT JUDGE
this action, Plaintiff Jason S. Bair
(“Plaintiff”) seeks recovery from his former
employer, South Carolina Department of Public Safety
(“DPS”), for alleged employment discrimination
based on his race, pursuant to 42 U.S.C. § 2000e, et
seq.. ECF. No. 1-1. He also asserts a state law claim
for defamation. Id. The matter is before the court
on Defendants' Motion for Summary Judgment, filed July
21, 2017. ECF No. 16. Plaintiff filed his response in
opposition on September 8, 2017, after being granted
extensions. ECF No. 24. Defendants filed a reply on September
15, 2017. ECF No. 25.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(g), D.S.C., this matter was referred to United
States Magistrate Judge Thomas E. Rogers, III for pre-trial
proceedings and a Report and Recommendation
(“Report”). On December 21, 2017, the Magistrate
Judge issued a Report recommending that Defendant's
motion for summary judgment be granted as to the federal
claim, and the state claim be remanded to state court. ECF
No. 27. The Magistrate Judge advised the parties of the
procedures and requirements for filing objections to the
Report and the serious consequences if they failed to do so.
DPS filed its objections on January 3, 2018. ECF No. 28.
Plaintiff filed his objections on January 4, 2018. ECF No.
29. DPS filed a reply on January 17, 2018. ECF No. 30. This
matter is now ripe for resolution.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261 (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 to the Magistrate Judge with
instructions. 28 U.S.C. § 636(b)(1). The court reviews
only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (stating that “in the
absence of a timely filed objection, a district 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.'”) (quoting Fed.R.Civ.P. 72
advisory committee's note).
Judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). On a motion for summary judgment, the
district court must “view the evidence in the light
most favorable to the nonmoving party.” Jacobs v.
N.C. Admin. Office of the Courts, 780 F.3d 562, 568 (4th
Cir. 2015) (citing Tolan v. Cotton, 134 S.Ct. 1861,
1868 (2014) (per curiam)). “Summary Judgment cannot be
granted merely because the court believes that the movant
will prevail if the action is tried on the merits.”
Id. Therefore, the court cannot weigh the evidence
or make credibility determinations. Id. at 569. The
district court may not “credit the evidence of the
party seeking summary judgment and fail properly to
acknowledge key evidence offered by the party opposing that
motion.” Id. at 570. However, a party
“cannot create a genuine issue of material fact through
mere speculation or the building of one inference upon
another.” Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985). Therefore, “[m]ere unsupported
speculation . . . is not enough to defeat a summary judgment
motion.” Ennis v. National Ass'n of Bus. &
Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
conducting a de novo review as to the objections
made, and considering the record, the applicable law, and the
Report and Recommendation of the Magistrate Judge, the court
agrees with the Report's recommendation that DPS's
motion for summary judgment should be granted on the federal
discrimination claim. However, the court declines to adopt
the recommendation the defamation claim be remanded. Instead,
the court also grants summary judgment for DPS on the
defamation claim. Accordingly, the court adopts the Report by
reference in this Order in part, going beyond the findings of
the Report to address the defamation claim as well. For the
reasons stated in the Report and as further addressed below,
DPS is entitled to summary judgment on all claims.
Magistrate Judge concluded Plaintiff cannot establish his
claim for racial discrimination under either a direct method
of proof or the burden-shifting method of proof. ECF No. 27.
Under the direct method of proof, the Magistrate Judge found
Plaintiff was unable to show DPS acted with discriminatory
animus in terminating his employment, by either direct or
circumstantial evidence. Id. at 12-17. The Report
reaches a similar conclusion regarding the burden-shifting,
or pretext, theory of discrimination, because Plaintiff fails
to present sufficient evidence to create a dispute of fact as
to whether an identified co-employee is a proper comparator
for a disparate treatment claim. Id. at 24.
presents three objections to the Report: the Report sets
forth and relies upon facts not in the record; the Magistrate
Judge erred in concluding Plaintiff failed to present
sufficient direct or circumstantial evidence that race was a
motivating factor in his termination; and erred in concluding
Plaintiff failed to identify a proper comparator and/or
establish pretext for his race discrimination claim. ECF No.
29. The objections are discussed below in turn.
Facts allegedly not in record
Plaintiff argues the Report takes as fact his action in
dismissing a ticket issued to a fellow state trooper was a
violation of DPS's policy and procedure. Plaintiff argues
no such policy was ever cited or identified by DPS;
therefore, a question of fact remains as to whether such a
policy exists. In addition, Plaintiff contends the Magistrate
Judge relied upon the polygraph examination of Plaintiff for
its substantive content, in violation of South Carolina law.
Plaintiff argues it was error to rely on the polygraph
examination to determine the findings of DPS's Office of
Professional Responsibility (“OPR”) were
legitimate and to distinguish Plaintiff from a comparator.
response, DPS argues Plaintiff is incorrect as to its
policies or procedure that led to Plaintiff's first
written reprimand. DPS contends it correctly cited Plaintiff
for “Improper Conduct or Conduct Unbecoming a State
Employee, ” and the State Employee Grievance Committee
found Plaintiff violated DPS Code of Conduct Policy #100.12,
Section XIII. ECF No. 30 at 4. DPS also contends the
Magistrate Judge “merely notes that [a polygraph test]