United States District Court, D. South Carolina, Florence Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION AS
PROVIDED HEREIN AND GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
GEIGER LEWIS UNITED STATES DISTRICT JUDGE.
Morris Mitchell Silver, M.D., filed this job discrimination
action against his former employer, Carolinas Medical
Alliance (CMA), complaining of age discrimination, as
proscribed by the Age Discrimination in Employment Act, and
gender discrimination, in violation of Title VII of the Civil
Rights Act of 1964. Silver also brings state law claims for
breach of contract concerning moving expenses and tail end
insurance, breach of contract accompanied by a fraudulent
act, promissory estoppel, slander per se, negligent
misrepresentation, constructive fraud, and actual fraud. The
matter is before the Court for review of the Report and
Recommendation of the United States Magistrate Judge
suggesting CMA's motion for summary judgment be granted
as to Silver's claims of age discrimination, breach of
contract as it relates to tail end insurance, breach of
contract accompanied by a fraudulent act, promissory
estoppel, negligent misrepresentation, and both claims of
fraud. She further recommends the motion be denied as to
Silver's claims of gender discrimination, breach of
contract related to the payment of moving expenses, and
slander per se. The Magistrate Judge prepared the Report in
accordance with 28 U.S.C. § 636 and Local Civil Rule
73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (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 with instructions. 28 U.S.C. §
Magistrate Judge filed the Report on December 28, 2018,
Silver and CMA filed their objections on January 11, 2019,
and the parties filed their replies on January 25, 2019. The
case was reassigned to this Court on that same date.
raises just one objection to the Report. In its objection, it
contends “the Magistrate Judge erred in recommending
denial of CMA's motion for summary judgment on . . .
Silver's Title VII sex discrimination claim as . . .
Silver has failed to present evidence that Darcy Craven's
reason for termination was pretextual.” CMA's
Objections 4. Darcy Craven, as the Chief Executive Officer of
CMA, terminated Silver's employment with CMA on November
only argument CMA presents concerns the Magistrate
Judge's suggestion Craven's inconsistent statements
about why he terminated Silver may be considered as evidence
of pretext. According to CMA, “[t]he one and only
reason the Magistrate Judge gives in her Report and
Recommendation that there is an inconsistency in . . .
Craven's [first] explanation for terminating . . .
Silver's Employment Agreement is . . . Silver alleges he
was told he hadn't done anything wrong, and . . . Craven
subsequently testified he terminated . . . Silver's
Employment Agreement because four out of the five doctors
refused to work with him.” CMA's Objections 5
CMA's motion for summary judgment, it expands on
Craven's second statement and says he terminated Silver
“due to his concerns with . . . Silver's behavior
and the fact that his co-workers no longer wanted to work
with him based on his inappropriate behavior and patient
care.” CMS's Motion 9. CMA maintains the first and
second statements are consistent. The Court is unable to say
CMA is correct as a matter of law.
reasonable jury might well conclude it inconsistent for
Craven first to say Silver had done nothing wrong when it
terminated him, providing no reason for his termination, but
later state he terminated Silver because his alleged conduct
was such that four out of five doctors refused to work with
him. And, if a jury so finds, it might also conclude
Craven's stated reasons for discharging Silver were
merely pretextual. See Alvarado v. Bd. of Trustees,
928 F.2d 118, 122-23 (4th Cir. 1991) (holding a plaintiff
presents sufficient evidence of pretext by showing his
employer first asserted he was being fired for one reason,
but then later alleged that he was fired on another basis).
Therefore, the Court will overrule CMA's objection.
fails to raise any objections concerning the Magistrate
Judge's suggestion the Court deny its motion for summary
judgment on Silver's claims of breach of contract related
to the payment of moving expenses and slander per se. Because
the Court agrees with the Magistrate Judge's
recommendation on those claims, it will deny summary judgment
on those claims.
submits five objections to the Report. First, he
“objects to the Magistrate Judge's finding . . .
[he] has not provided direct evidence of discrimination
sufficient to survive summary judgment[ ]” on his age
discrimination claim. Silver's Objections 2. The Court is
unconvinced the Magistrate Judge erred.
objection is centered on a comment by “Stonerock
[telling] Phillips she did not want another older, male in
the practice.” Report 21 (citation omitted). She made
this remark “[i]n or around the third week of September
2015[. ]” Id. (citation omitted). Silver was
fifty-eight years old at the time of his hiring and
termination. Id. 28 n.12 (citation omitted).
Stonerock, a younger woman, and Phillips, an older man, were
doctors in the same practice as Silver.
contends “Stonerock made the termination decision--all
[Craver] did was rubber stamp the allegations made by
Stonerock.” Silver's Objections 4. The Court is
aware other courts in the Fourth Circuit have held it
appropriate to consider the role a co-worker might have in
making employment decisions. See, e.g., Hill v. Lockheed
Martin Logistics Mgmt., Inc., 354 F.3d 277, 288-89 (4th
Cir. 2004) (“[T]he person allegedly acting pursuant to
a discriminatory animus need not be the ‘formal
decisionmaker' to impose liability upon an employer for
an adverse employment action, so long as the plaintiff
presents sufficient evidence to establish that the
subordinate was the one ‘principally responsible'
for, or the ‘actual decisionmaker' behind, the
action.”) abrogated on other grounds by Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013);
Hoffman v. Baltimore Police Dep't, No. Civil No.
04-3072, 2009 WL ...