United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge.
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 35) recommending
that Plaintiffs motion for summary judgment (Dkt. No. 33) be
granted and Defendant's motion for summary judgment (Dkt.
No. 32) be denied. For the reasons set forth below, the Court
adopts the R & R as the Order of the Court, grants
Plaintiffs motion for summary judgment and denies
Defendant's motion for summary judgment.
a former employee of the Boeing Company, Inc.
("Boeing"), brings this employment discrimination
action under the Americans with Disabilities Act and alleges
that Boeing unlawfully terminated his employment after he
developed a disability that precluded him from working in a
non-office environment. (Dkt. No. 14 at 1.) On June 13, 2018,
the Equal Employment Opportunity Commission issued Plaintiff
a "Right to Sue" letter notifying Plaintiff that
any lawsuit arising from the charge must be filed within
ninety days of Plaintiff s receipt of the letter-Friday,
September 14, 2018. Plaintiff filed his pro se
original complaint on September 18, 2019. The sole issue on
the parties' cross motions for summary judgment is
whether equitable tolling should apply to excuse the untimely
filing of Plaintiffs original complaint. The Court
outlines the facts relevant to that issue:
September 7, 2018, Plaintiff telephoned the clerk's
office at the U.S. District Court in Charleston to inquire as
to whether he should file his complaint in federal or state
court. Plaintiff was advised to review the Court's
website for pro se litigants and was advised that he
could file the complaint in federal court in person for a
$400 filing fee. (Dkt. No. 32-2.) On September 12, 2018,
Plaintiff again telephoned the Charleston district
courthouse, but received a pre-recorded message advising that
the courthouse was closed from September 11, 2018 until
further notice. Plaintiff left a voicemail stating:
My name is Robert Baker. I have a claim to file. This is a
Right to Sue. I had a 90 days from date of receipt. I had
intended to bring that in this week, but since you are closed
I cannot do that. I want to make sure that I am on record as
having attempted to meet that, but the courthouse was closed.
Please call me as soon as you can at [home telephone number].
(Dkt. No. 14 at 3.) On September 16, 2018, Plaintiff twice
telephoned the Charleston district courthouse, at 4:13 A.M.
and 5:08 P.M., but again received the pre-recorded message
each time. On September 17, 2018, Plaintiff twice telephoned
the Charleston district courthouse; his 10:39 A.M. call went
unanswered and his 2:19 P.M. call was answered, during which
he was advised that the courthouse was open. Plaintiff
contends that he did not file his complaint in person after
this 2:19 P.M. conversation because there "was not
sufficient time for me to conduct the final review of the
complaint, my files, the enclosed bullet points, print and
sign it, and get form my home in northern Mount Pleasant . .
. [to] downtown, find parking and file the complaint. As
described in my complaints, I have some difficulty with
vertigo and balance, which sometimes affects walking.
Accordingly, I filed the complaint the next day." (Dkt.
No. 33-1 at 2.) On September 18, 2019, Plaintiff filed his
original complaint pro se in person at the
Charleston district courthouse. (Id., Dkt. No. 1.)
Plaintiff thereafter filed an amended complaint through
counsel on December 11, 2018. (Dkt. No. 14.)
Review of the R & R
Magistrate Judge makes only a recommendation to this Court
that has no presumptive weight, and the responsibility to
make a final determination remains with the Court. See,
e.g., Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The
Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1)(C). Where there are
specific objections to the R & R, the Court "makes a
de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made." Id. In the absence of
objections, the Court reviews the R & R to "only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation."
Fed.R.Civ.P. 72 advisory committee's note; see also
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)
("In the absence of objection ... we do not believe that
it requires any explanation.").
Motion for Summary Judgment
judgment is appropriate if a party "shows that there is
no genuine dispute as to any material fact" and that the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). Therefore, summary judgment should be
granted "only when it is clear that there is no dispute
concerning either the facts of the controversy or the
inferences to be drawn from those facts." Pulliam
Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). "In determining whether a genuine issue has been
raised, the court must construe all inferences and
ambiguities in favor of the nonmoving party."
HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross,
101 F.3d 1005, 1008 (4th Cir. 1996).
party seeking summary judgment has the initial burden of
demonstrating to the Court that there is no genuine issue of
material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the moving party has made this
threshold demonstration, the non-moving party, to survive the
motion for summary judgment, must demonstrate that specific,
material facts exist that give rise to a genuine issue.
Id. at 324. Under this standard, "[c]onclusory
or speculative allegations do not suffice, nor does a
'mere scintilla of evidence'" in support of the
non-moving party's case. Thompson v. Potomac Elec.
Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting
Phillips v. CSX Transp, Inc., 190 F.3d 285, 287 (4th