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Bair v. South Carolina Department of Public Safety

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

February 6, 2018

Jason S. Bair, Plaintiff,
South Carolina Department of Public Safety, Defendant.



         Through 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.

         In 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.

         I. Standard

         The 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).

         Summary 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).

         After 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.

         II. Discussion

         a. Race Discrimination

         The 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.

         Plaintiff 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.[1]

         i. Facts allegedly not in record

         First, 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[2] (“OPR”) were legitimate and to distinguish Plaintiff from a comparator.

         In 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] was ...

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