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Campbell v. Fluor Federal Global Projects, Inc.

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

March 22, 2019

Rodney Campbell, Plaintiff,
v.
Fluor Federal Global Projects, Inc., Defendant.

          OPINION AND ORDER

          Bruce Howe Hendricks United States District Judge.

         This 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.

         BACKGROUND

         The 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.[1] 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.)

         The 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 judgment accordingly.

         STANDARD OF REVIEW

         The 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).

         DISCUSSION

         A. Motion to Strike Affidavit

          The 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.

         B. Adverse Employment Action

         The 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.)

         The 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 action issue.

         C. Inference ...


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