United States District Court, D. South Carolina, Greenville Division
OPINION AND ORDER
Howe Hendricks United States District Judge.
action arises out of Plaintiff Rodney Campbell's
(“Plaintiff” or “Campbell”)
allegations that he was subject to race discrimination by his
former employer, Fluor Federal Global Projects, Inc.
(“Defendant” or “Fluor”). The action
was removed by Defendant on May 11, 2017, based upon federal
question jurisdiction, under Title VII of the Civil Rights
Act of 1964, as amended, and Title 42, United States Code,
Section 1981. In accordance with 28 U.S.C. § 636(b)(1)
and Local Civil Rule 73.02(B)(2)(g), D.S.C., this matter was
referred to United States Magistrate Judge Kevin F. McDonald
for consideration. On July 27, 2018, Defendant filed a motion
for summary judgment. (ECF No. 34.) Plaintiff responded on
August 27, 2018 (ECF No. 37), and Defendant filed a reply on
September 4, 2018 (ECF No. 40). The Defendant also filed a
motion to strike affidavit on September 4. (ECF No. 39.)
Plaintiff filed a response in opposition on September 18,
2018 (ECF No. 43), and Defendant filed a reply in support of
the motion to strike on September 24, 2018 (ECF No. 45).
Plaintiff filed a sur-reply on September 25, 2018. (ECF No.
46.) The Magistrate Judge prepared a thorough Report and
Recommendation (“Report”), which recommends that
Defendant's motion to strike affidavit be granted and
motion for summary judgment be granted. (ECF No. 50.)
Plaintiff filed timely objections (ECF No. 51), to which
Defendant replied (ECF No. 52). After careful consideration
of the relevant materials and law, and for the reasons set
forth herein, the Court adopts the Report, grants the motion
to strike affidavit, and grants summary judgment.
Report sets forth in detail the relevant facts and standards
of law (see ECF No. 50 at 2-13) and the Court
incorporates them herein without recitation. In his amended
complaint, Plaintiff alleges a single causes of action for
race discrimination-which appears to incorporate three
theories of liability: (1) demotion/replacement; (2) failure
to promote; and (3) hostile work environment-in violation of
Title VII of the Civil Rights Act of 1964, as amended, and
Title 42, United States Code, Section 1981. (ECF Nos. 15 at
3-4; 37 at 1.) Plaintiff, an African-American government
contractor who was employed by Fluor as an Air Operations
Specialist at Bagram Airfield, Afghanistan, essentially avers
that he was replaced in his position by a white male who was
paid a higher salary even though he had less experience, and
that Plaintiff was treated in a hostile fashion during
Defendant's investigation of Plaintiff's coworker and
by way of a comment from another coworker that Plaintiff
looked like a member of the Taliban. (See ECF Nos.
15 & 37.)
Court has thoroughly reviewed the objections to the Report
and the relevant case law. After due consideration, the Court
finds that the law and the facts entirely support the
Magistrate Judge's conclusions and recommendations; thus,
the Court overrules Plaintiff's objections and will enter
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270
(1976). The Court is charged with making a de novo
determination of any portions of the Report and
Recommendation 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 may recommit
the matter to the Magistrate Judge with instructions.
See 28 U.S.C. § 636(b)(1). The Court need not
conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the Magistrate
Judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
Motion to Strike Affidavit
Magistrate Judge first concluded that the motion to strike
the “affidavit” of Damita Palmer should be
granted because, “The statement at issue ‘was
neither sworn under oath nor made under the penalty of
perjury. As a result, the statement fails to meet the most
basic requirement of form required by [Federal Rule of Civil
Procedure] 56 . . . .” (ECF No. 50 at 8-9 (quoting
In re French, 499 F.3d 345, 358 (4th Cir. 2007)
(Whitney, D.J. concurring in part) (citing Adickes v.
S.H. Kress & Co., 398 U.S. 144, 158 n.17 (1970)
(noting that unsworn statement in support of motion for
summary judgment did not meet the requirements of Rule 56)).)
In the alternative, the Magistrate Judge found that even if
the Court were to treat Ms. Palmer's unsworn statement as
an affidavit, summary judgment would still be appropriate,
and the motion to strike should be denied as moot. (ECF No.
50 at 10.) Plaintiff made no objection to these conclusions.
(See ECF No. 51.) Finding no error in the Magistrate
Judge's sound reasoning and conclusions, the Court adopts
the Report with respect to the motion to strike affidavit and
hereby grants the motion.
Adverse Employment Action
Magistrate Judge next concluded that Plaintiff's
reassignment or transfer to another position did not
constitute an adverse employment action because it resulted
in no change to his title, work schedule, pay, grade level,
or benefits. (ECF No. 50 at 13-14.) Plaintiff objects to this
conclusion, arguing, “[T]his holding misses the point
illustrated in Plaintiff's Memo, which is that it is
undisputed that the new position at issue would have been a
promotion for Plaintiff. Thus, not receiving a higher paying
job is certainly an adverse employment action.” (ECF
No. 51 at 1-2.)
objection is conclusory, fails to point to any actual error
in the Magistrate Judge's reasoning, and is overruled.
The Magistrate Judge was correct to conclude that there was
no adverse employment action in this case. See,
e.g., McMillan v. S.C. Dep't of Corr., 16
F.Supp.2d 635, 645 (D.S.C. 1997), aff'd, 153
F.3d 721 (4th Cir. 1998) (“A transfer accompanied by a
material adverse change is actionable. . . . However, a
transfer absent a reduction of salary, benefits, and title is
not considered actionable because there is no adverse
employment action.” (citations omitted)). Accordingly,
the Court grants summary judgment on the adverse employment