United States District Court, D. South Carolina, Florence Division
Marcus D. Kelly, Plaintiff,
Bryan Harwell United States District Judge
matter is before the Court for consideration of
Plaintiff's objections to the Report and Recommendation
(“R & R”) of United States Magistrate Judge
Kaymani D. West. See ECF Nos. 37, 39, & 43.
The Magistrate Judge recommends that the Court grant
Defendant's motion to dismiss but also consider giving
Plaintiff leave to file an amended complaint as to several
claims. R & R at p. 19.
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. §
636(b)(1); Fed.R.Civ.P. 72(b).
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).
Marcus D. Kelly, proceeding pro se, filed this employment
action against his former employer, QVC
(“Defendant”),  alleging discriminatory
retaliation and termination under Title VII of the Civil
Rights Act of 1964 (Title VII”), the Age Discrimination
in Employment Act of 1967 (“ADEA”), and the
Americans with Disabilities Act of 1990
(“ADA”). See ECF No. 1-2. Plaintiff
alleges Defendant wrongfully terminated him based upon a
“falsified” background check obtained after a
coworker secured a restraining order against him. Defendant
filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)
asserting Plaintiff failed to exhaust administrative remedies
regarding some claims and fails to state a claim as to the
remaining claims. See ECF No. 26. The Magistrate
Judge recommends granting Defendant's motion but notes
the Court may find it appropriate to permit Plaintiff to file
an amended complaint regarding his administratively exhausted
claims. See R & R at p. 19. Plaintiff has filed
objections to the R & R, and Defendant has responded to
Plaintiff's objections. See ECF Nos. 39, 41, 43,
the Court notes Plaintiff does not specifically object to the
Magistrate Judge's construction of his particular Title
VII, ADA, and ADEA claims. The Court reiterates that absent a
specific objection, it need only review the R & R for
clear error and need not explain its reason for adopting a
proposed finding. See Diamond, 416 F.3d at 315;
Camby, 718 F.2d at 199-200. The Court discerns no
clear error in the Magistrate Judge's interpretation of
Plaintiff's claims and will address them below.
Magistrate Judge recommends dismissing Plaintiff's claims
of (a) retaliation under Title VII, the ADA, and the ADEA,
(b) national origin and religion discrimination under Title
VII, and (c) disability discrimination under the ADA because
he failed to exhaust his administrative remedies as to these
claims. See R & R at pp. 8-12, 19.
Plaintiff does not appear to specifically object to the
Magistrate Judge's conclusion that these claims
were not administratively exhausted,  but in any event, the Court
agrees with the Magistrate Judge's conclusion. The Charge
of Discrimination that Plaintiff filed with the South
Carolina Human Affairs Commission indicated he was claiming
discrimination based on race, color, sex, and
age-not retaliation, national
origin, religion, or disability. See ECF No. 26-1 at
p. 2. Thus, Plaintiff cannot now pursue a claim he did not
present in his Charge of Discrimination. See Balas,
711 F.3d at 408 (“In determining what claims a
plaintiff properly alleged before the EEOC, we may look only
to the charge filed with that agency.”);
Jones, 551 F.3d at 300 (“The scope of the
plaintiff's right to file a federal lawsuit is determined
by the charge's contents.”); El-Reedy, 273
F.Supp.3d at 602 (“[I]n determining the scope of
Plaintiff's exhausted claims, the Court is bound by the
scope of Plaintiff's claims as are set forth in her
administrative charge, and only those discrimination claims
set forth in the administrative charge, reasonably related
thereto, or which were developed by a reasonable
investigation of the claims set forth in the original charge
may be maintained in a subsequent  lawsuit.”).
Accordingly, the Court will dismiss with prejudice
Plaintiff's claims of retaliation and discrimination
based on national origin, religion, and disability because he
did not exhaust his administrative remedies as to these
Magistrate Judge recommends dismissing Plaintiff's
remaining claims-(a) Title VII race, color, and gender/sex
discrimination claims and (b) ADEA discrimination
claims-pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state
a claim. See R & R at pp. 12-19. Plaintiff
objects to this recommendation. See ECF No. 39 at
pp. 1, 3-4.
survive a Rule 12(b)(6) motion, the complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Elliott
v. Am. States Ins. Co., 883 F.3d 384, 395 (4th Cir.
2018) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009), and Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “[A] plaintiff must provide
sufficient detail to show that he has a more-than-conceivable
chance of success on the merits.” Upstate Forever
v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637,
645 (4th Cir. 2018) (alterations omitted).
VII prohibits an employer from terminating an employee on the
basis of, inter alia, race, color, and sex,
see 42 U.S.C. § 2000e-2(a)(1), and the ADEA
prohibits such termination on the basis of age. See
29 U.S.C. § 623(a)(1). “[A]lthough the plaintiff
need not plead facts that constitute a prima facie case under
the framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), in order to survive a motion to dismiss,
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15
(2002), a civil rights plaintiff retains the burden of
alleging facts sufficient to state a claim entitling her to
relief.” Harman v. Unisys Corp., 356 Fed.Appx.
638, 640 (4th Cir. 2009); see Goode v. Cent. Virginia
Legal Aid Soc'y, Inc., 807 F.3d 619, 627 (4th Cir.
2015) (considering ...