United States District Court, D. South Carolina, Greenville Division
C. Coggins, Jr. United States District Judge.
matter is before the Court on Defendant's Motion for
Summary Judgment. ECF No. 70. Plaintiff filed a Response in
Opposition, and Defendant filed a Reply. ECF Nos. 72, 74. In
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2), (D.S.C.), this matter was referred to United
States Magistrate Judge Kaymani D. West for pre-trial
proceedings and a Report and Recommendation
(“Report”). On January 24, 2019, the Magistrate
Judge issued a Report recommending that the Motion be
granted. ECF No. 83. Plaintiff filed objections to the
Report, and Defendant filed a Reply. ECF Nos. 85, 86.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. §
636(b). The Court will review the Report only for clear error
in the absence of an objection. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (stating that “in the absence of timely
filed objection, a district court need not conduct a de
novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.” (citation omitted)).
Plaintiff summarizes her objections to the Report as follows,
Did the Magistrate err by finding that a “request for
accommodation” and “to return to work” were
acts of participation, rather than
opposition, and then recommending Summary Judgment
by analyzing (and then dismissing) Defendant's
retaliatory actions toward Plaintiff as a “failure to
accommodate” rather than as “retaliation”?
Did the Magistrate err by conflating Plaintiff's right to
oppose Defendant's unlawful treatment of her by failing
to return her to work and requiring her to pay out of pocket
for a functional capacity evaluation (FCE) and then be forced
to have doctor after doctor compare the “essential
functions” of the job to the “marginal”
duties Defendant continued to assert were the majority of her
job functions while insisting doctor after doctor
“clarify” her work restrictions - in essence
requiring Plaintiff to jump through hoop after hoop while it
prevented Plaintiff from working for over three months (from
May 5, 2016 through August 17, 2016) as retaliation for her
protected activity of requesting reasonable accommodation?
(ECF 83, pp. 11-15)
Did the Magistrate err by determining that while
“considering whether Plaintiff's voiced
concerns about the FCE requirement were protected
activity[, ] the court is not revisiting whether Defendant
failed to accommodate any disability” and, further,
that “[t]his is not a failure-to-accommodate case, and
the issue of whether certain duties were or were not
essential to Plaintiff's job is not before the
In sum, the Magistrate repeatedly conflated and dismissed
Plaintiff's evidence of retaliation as a “failure
to accommodate” without recognizing that
Defendant's refusal to accommodate Plaintiff's WAS
retaliation for her oppositional activity.
ECF No. 85.
Court finds that the Magistrate Judge accurately summarized
the relevant factual history and legal standards. Further,
the Court finds that Plaintiff's objections do not
specifically address the totality of the Report. Plaintiff
objects to the Magistrate Judge's reasoning regarding her
prima facie case. However, as explained by the Magistrate
Judge, even assuming that Plaintiff establishes her prima
facie case for retaliation, she has failed to establish that
the proffered legitimate nonretaliatory reason for requiring
her to obtain a fitness-for-duty certification, have it
clarified, and pay for the test was pretextual. Upon de novo
review of the record, the applicable law, and the Report of
the Magistrate Judge, the Court agrees with the
recommendation of the Magistrate Judge. Even accepting
Plaintiff's argument that the Magistrate Judge
misconstrued Plaintiff's requests for accommodation as
acts of participation rather than opposition, Plaintiff still
fails in her burden to show that Defendant's stated
reasons were pretextual and that retaliation was the true
cause of the adverse employment action. Accordingly, the
Court adopts the Report by reference in this Order. The
Motion to for Summary Judgment is GRANTED.
 Plaintiff initially brought failure to
accommodate and rehabilitation claims under the
Rehabilitation Act of 1973 (“Rehabilitation
Act”), 29 U.S.C. §§ 701, et seq.; claims
under the Family and Medical Leave Act (“FMLA”),
29 U.S.C. §§ 2601, et seq.; and state law claims.
By prior Order of this Court, all claims were dismissed
except for Plaintiff's Rehabilitation ...