United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
Cameron McGowan Currie, Senior United States District Judge.
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. 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.
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
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.
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).
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).
Age Discrimination and Defamation Claims
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.
Race Plus Sex Discrimination Claim
Magistrate Judge's recommendations and Parties'
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. ECF No. 70 at 12; see also ECF No. 54
at 7, 19.
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. Id. at
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.
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
¶ 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. ...