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Rish v. City of Columbia

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

August 15, 2019

Jeffrey D. Rish, Plaintiff,
City of Columbia, Defendant.




         Plaintiff Jeffrey D. Rish (“Plaintiff”) filed this civil action on November 17, 2017 alleging unlawful employment discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., against Defendant City of Columbia (“Defendant”). Plaintiff, a Caucasian male firefighter, alleges that the demotion he received from his superiors for poking the buttocks of an African-American male subordinate firefighter with his thumb unfairly diverges from the lack of discipline, and subsequent promotion, of Mickey Folsom (“Comparator”), an African-American firefighter who slapped a Caucasian male subordinate firefighter on the buttocks. (ECF No. 47 at 2). In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this case was referred to a Magistrate Judge for Review. (ECF No. 47 at 1). Thereafter, on January 25, 2019, Defendant filed a Motion for Summary Judgment (“Motion”). (ECF No. 33).

         The Magistrate Judge assigned to this action[1] prepared a thorough Report and Recommendation (“Report”), opining that Defendant's Motion should be denied. (ECF No. 47 at 8). The Report sets forth, in detail, the relevant facts and standards of law on this matter, and this Court incorporates those facts and standards without a recitation. (ECF No. 47). The Magistrate Judge required Defendant to file objections by May 22, 2019 (ECF No. 47 at 9) and Defendant timely filed its Objections (ECF No. 49). Plaintiff also filed a Reply to Defendant's Objections. (ECF No. 53). Accordingly, the Motion is ripe for review.


         The district court is required to conduct a de novo review only of the specific portions of the Magistrate Judge's Report to which objections are made. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b); see also Carniewski v. W.Va. Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the Magistrate Judge's Report, this Court is not required to give an explanation for adopting the Report. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Thus, the Court must only review those portions of the Report to which Plaintiff has made specific written objections. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005).

         “An objection is specific if it ‘enables the district judge to focus attention on those issues- factual and legal-that are at the heart of the parties' dispute.'” Dunlap v. TM Trucking of the Carolinas, LLC, No. 0:15-cv-04009-JMC, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec. 12, 2017) (citing One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)). A specific objection to the Magistrate Judge's Report thus requires more than a reassertion of arguments from the Complaint or a mere citation to legal authorities. See Workman v. Perry, No. 6:17-cv-00765-RBH, 2017 WL 4791150, at *1 (D.S.C. Oct. 23, 2017). A specific objection must “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).

         “Generally stated, nonspecific objections have the same effect as would a failure to object.” Staley v. Norton, No. 9:07-0288-PMD, 2007 WL 821181, at *1 (D.S.C. Mar. 2, 2007) (citing Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)). The Court reviews portions “not objected to-including those portions to which only ‘general and conclusory' objections have been made-for clear error.” Id. (emphasis added) (citing Diamond, 416 F.3d at 315; Camby, 718 F.2d at 200; Orpiano, 687 F.2d at 47).

         Where an objection is “nonspecific, unrelated to the dispositive portions of the Magistrate Judge's Report and Recommendation, or merely restate[s] . . . claims, ” the Court need not conduct any further review of that objection. Field v. McMaster, 663 F.Supp.2d 449, 452 (D.S.C. 2009); see also McNeil v. S.C. Dept. of Corrections, No. 5:12-2880-MGL, 2013 WL 1102881, at *1 (D.S.C. Mar. 15, 2013) (finding petitioner's objections to be without merit where the objections were “non-specific, unrelated to the dispositive portions of the Magistrate Judge's Report, and consist[ed] of a reassertion of the arguments” made in the petition); Arbogast v. Spartanburg Cty., No. 07:11-cv-00198-GRA, 2011 WL 5827635, at *2 (D.S.C. Nov. 17, 2011) (finding that plaintiff's objections were not specific where the objections were “general and conclusory in that they merely reassert[ed] that his conviction was wrongful.”).


         In opposing Defendant's Motion, Plaintiff argues a genuine issue of material fact exists with regard to whether his conduct was similar to his proffered Comparator's. The Magistrate Judge's Report sides with Plaintiff, finding the conduct of Plaintiff and his Comparator were sufficiently similar in appearance to raise a jury question of whether they are similar in nature and severity. The Report gives two reasons for its conclusion.

         A. The Report

         First, the Report asserts that slapping a subordinate's buttocks and poking a subordinate's buttocks with one's thumb, though not identical, are similar enough for the jury to determine whether they are similar in nature and severity. (ECF No. 47 at 7). Here, Defendant seeks to differentiate as a matter of law Plaintiff's conduct from Comparator's by arguing that Plaintiff's conduct was of a sexual nature, and therefore treated as sexual harassment. (ECF No. 47 at 6). Comparator's conduct, Defendant contends, was properly viewed as less serious “horseplay.” (ECF No. 47 at 6). However, the United States Court of Appeals for the Fourth Circuit recently discussed comparator evidence, clarifying that, contrary to Defendant's position here, a plaintiff need not demonstrate that the comparator is identically situated to him for a valid comparison. Haynes v. Waste Connections, Inc., ___F.3d ___, 2019 WL 1768918, at *3-4 (4th Cir. Apr. 23, 2019). As the Haynes Court stated:

Turning first to the issue of an appropriate comparator, this Court has emphasized that a comparison between similar employees “will never involve precisely the same set of work-related offenses occurring over the same period of time and under the same sets of circumstances.” Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993). Rather, to establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator ‚Äúdealt with the same supervisor, [were] subject to the same standards and . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the ...

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