United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE
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.
Background and Relevant Facts
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.)
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).
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.
Magistrate Judge's Report and Recommendation
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).
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.
Consideration of Christopher Perry's Declaration
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 ...