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Marshall v. At&T Mobility Services, LLC

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

March 20, 2019

Scott Marshall, Plaintiff,
v.
AT&T Mobility Services, LLC, and Kent Mathy, Defendants.

          OPINION AND ORDER

          Cameron McGowan Currie, Senior United States District Judge.

         Through this action, Plaintiff Scott Marshall (“Plaintiff”) seeks recovery from his former employer, AT&T Mobility Services LLC (“AT&T”), for alleged employment discrimination based on “Race Plus Sex” pursuant to 42 U.S.C. § 2000e, et seq. ECF. No. 1.[1] The matter is before the court on Defendants' Motion for Summary Judgment, filed June 25, 2018. ECF No. 46. Plaintiff filed his response in opposition on July 19, 2018, after being granted an extension. ECF No. 54. Defendants filed a reply on August 3, 2018. ECF No. 58.

         In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(g), 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 10, 2019, the Magistrate Judge issued a Report recommending Defendants' motion for summary judgment be granted. ECF No. 70. The Magistrate Judge advised the parties of the procedures and requirements for filing objections to the Report and the serious consequences if they failed to do so. Plaintiff filed his objections on February 7, 2019. ECF No. 74. Defendants filed a reply on March 7, 2019. ECF No. 79. This matter is now ripe for resolution.

         After conducting a de novo review as to the objections made, and considering the record, the applicable law, the Report and Recommendation of the Magistrate Judge, and the parties' objections, the court agrees with the Report's recommendation that Defendants' motion for summary judgment be granted. Accordingly, the court adopts the Report by reference in this Order. For the reasons stated in the Report and as further addressed below, Defendants are entitled to summary judgment on all claims.

         I. Standard

         The 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. Mathews v. Weber, 423 U.S. 261 (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 to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The court reviews 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 a 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.'”) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         Summary Judgment is appropriate “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). On a motion for summary judgment, the district court must “view the evidence in the light most favorable to the nonmoving party.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015) (citing Tolan v. Cotton, 134 S.Ct. 1861, 1868 (2014) (per curiam)). “Summary Judgment cannot be granted merely because the court believes that the movant will prevail if the action is tried on the merits.” Id. Therefore, the court cannot weigh the evidence or make credibility determinations. Id. at 569. The district court may not “credit[] the evidence of the party seeking summary judgment and fail[] properly to acknowledge key evidence offered by the party opposing that motion.” Id. at 570. However, a party “cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Therefore, “[m]ere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).

         II. Discussion

         a. Age Discrimination and Defamation Claims

         As noted by the Magistrate Judge, Plaintiff conceded “the evidence forecast during discovery does not support a defamation claim against Mathy or AT&T, or an age discrimination claim against AT&T.” ECF No. 54 at 1. Summary judgment as to the age and defamation claims is therefore granted. Further, as the only claim brought against the individual Defendant, Mathy, was defamation, he is hereby dismissed as a party.

         b. Race Plus Sex Discrimination Claim

         i. Magistrate Judge's recommendations and Parties' arguments

         Plaintiff, a white male, alleges two claims of Title VII discrimination: 1) his termination in the reduction in force/surplus (“RIF/surplus”), and 2) failure to hire for the Cricket Wireless position, both based on a theory of race plus sex discrimination. ECF No. 1-1 at ¶ 18. As to the failure to hire claim, the Magistrate Judge recommends summary judgment because Plaintiff abandoned this claim when his opposition to summary judgment did not address it other than in the recitation of the facts and very briefly in his argument regarding pretext[2]. ECF No. 70 at 12; see also ECF No. 54 at 7, 19.

         Plaintiff's RIF/surplus claim is more complicated; however, the Magistrate Judge recommends granting summary judgment based on several theories. First, the Report notes there are “serious questions about whether, under the facts of this case, Plaintiff's status as a white male would cause him to be protected under Title VII, ” as a race plus sex theory may not apply to white males. Id. at 17. The Magistrate Judge also concludes Plaintiff has failed to establish a prima facie case that his status as a white male motivated his inclusion in the RIF/surplus, and failed to show pretext after AT&T proffered a legitimate, nondiscriminatory reason for his discharge. Id. at 18-24. Plaintiff objects to the Report, arguing there are genuine issues of material fact precluding summary judgment on his race plus sex RIF/surplus claim. ECF No. 74. Plaintiff does not address his failure to hire claim, despite the Report specifically recommending summary judgment based on Plaintiff's abandonment of the claim. He does, however, object to the Magistrate Judge's findings regarding his RIF/surplus claim, arguing “this Court and the Fourth Circuit (at least tacitly) have recognized the viability of a ‘race plus sex' or ‘sex plus race' claim.” Id. at 2. Further, Plaintiff contends he has put forth evidence he was satisfactorily performing his job at the time of the RIF/surplus, and AT&T's purported reasons for separating “only Plaintiff and three other white male Level 3 Directors in Kent Mathy's region” were pretext for discrimination.[3] Id. at 3-7.

         In its reply, AT&T points out Plaintiff's objections do not challenge the Magistrate Judge's recommendation on the age, defamation, and failure to hire claims. It argues Plaintiff failed to present specific objections, but instead rehashed his arguments against summary judgment on his RIF/surplus discrimination claim, and thus de novo review is not required. ECF No. 79. Id. at 3. It further argues that, even under a de novo review, the Magistrate Judge's recommendations regarding the “super trait” theory, Plaintiff's performance level, and pretext should be upheld. Id. at 7-15.

         ii. Background

         Plaintiff is a white male who began employment with AT&T in 1997 and became a Director of Sales (a “Level Three” position) in 2008. ECF No. 1-1 at ¶ 6. On or about May 22, 2016, Plaintiff was notified his employment was being terminated as part of a RIF or surplus. Id. at ΒΆ 9; Pl. Dep. 36-37. At that time, Plaintiff's immediate supervisor was Parker, a black male and the Vice President/General Manager responsible for South Carolina and Georgia. ECF No. ...


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