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Solt v. The Boeing Co.

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

April 2, 2018

Jason Solt, Plaintiff,
v.
The Boeing Company, Defendant.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE

         This matter is before the Court on the Report and Recommendation ("R. & R.") of the Magistrate Judge (Dkt. No. 28) recommending that the Court grant Defendant's motion for summary judgment (Dkt. No. 24). For the reasons set forth below, the Court adopts the R. & R. as the Order of the Court and grants Defendant's motion for summary judgment.

         I. Background and Relevant Facts

         Plaintiff Jason Solt initiated this lawsuit when he filed a complaint against his former employer, The Boeing Company, alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12102, et seq. ("ADA"). The Court adopts the facts as detailed at length in the R. & R. (Dkt. No. 28 at 2-8.)

         II. Legal Standard

         A. Summary Judgment

         The court shall grant summary judgment "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). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1).

         In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id., at 248.

         B. Magistrate Judge's Report and Recommendation

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with this Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

         III. Discussion

         Plaintiff has filed several objections to the Magistrate Judge's R. & R. (Dkt. No. 29.) The Court has considered de novo each portion of the R. & R. to which Plaintiff has made a specific objection.

         A. Consideration of Christopher Perry's Declaration

         Plaintiff objects to the Magistrate Judge's consideration of the Declaration of Christopher Perry, arguing that the Declaration should be "disregarded" "because it is not sworn before a notary public and is not an affidavit." (Dkt. No. 29 at 2.) Plaintiff relies on the Fourth Circuit's decision in Orsi v. Kirkwood,999 F.2d 86, 92 (4th Cir. 1993), for this proposition. "However, Orsi was abrogated by the 2010 amendments to Federal Rule of Civil Procedure 56, which no longer requires evidence to be presented in admissible form to be considered on summary judgment." Pronin v. Vining, No. 5:13-CV-03423-DCN, 2016 WL 1253182, at *4 (D.S.C. Mar. 31, 2016). When ruling on a motion for summary judgment, this Court may consider competent evidence in the form of either an affidavit sworn under ...


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