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Silver v. Carolinas Medical Alliance

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

February 13, 2019




         Plaintiff 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.

         The 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. § 636(b)(1).

         The 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.

         CMA's Objections

         CMA 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 18, 2015.

         The 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 (citation omitted).

         In 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.

         A 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.

         CMA 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.

         Silver's Objections

         Silver 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.

         This 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.

         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 ...

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