United States District Court, D. South Carolina, Columbia Division
Jeffrey D. Rish, Plaintiff,
City of Columbia, Defendant.
F. ANDERSON, JR. UNITED STATES DISTRICT JUDGE
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).
Magistrate Judge assigned to this action 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.
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).
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).
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).
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.”).
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.
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
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
“dealt 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 ...