Opinion
C/A 2:22-4515-RMG-SVH
12-11-2023
Angela Marie Hodges, Plaintiff, v. Meyer Enterprises, Inc., Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
In this case, an employee sues her former employer, alleging that she was discriminated against based on her race, gender, and disability, that her former employer refused to accommodate her disability, and that her former employer defamed her. The former employer seeks dismissal.
Angela Marie Hodges (“Plaintiff”) filed this case against Meyer Enterprises, Inc. (“Defendant”), on December 14, 2022. Plaintiff asserts claims for discrimination and failure to accommodate in violation of the Americans with Disabilities Act, 42 U.S.C. § 12102, et seq., as amended by the ADA Amendments Act of 2008, effective January 1, 2009, 42 U.S.C. §§ 12101, et seq. (“ADA”); claims for race and gender discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”); and a claim for defamation pursuant to South Carolina state law. [See, e.g., ECF No. 31 at 1].
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C]., this case was referred to the undersigned for all pretrial proceedings. This matter comes before the court on Defendant's motion for summary judgment. [ECF No. 27]. The motion has been fully briefed [ECF No. 31] and is ripe for disposition.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant in part and deny in part Defendant's motion for summary judgment, allowing Plaintiff's Title VII discrimination claims based on gender and race and her ADA discrimination claim to proceed.
I. Factual and Procedural Background
A. Plaintiff's Employment with Defendant
Plaintiff is a black female who worked for Defendant as a driver from August 2020 until May 13, 2021. [ECF No. 31-2 at 17:2-10]. Defendant provides packaging and trucking services, specifically FedEx Ground and home delivery shipments. Id. at 96:16-97:1. Michael Meyer (“Mike”) is the owner of the company, his wife Holly Meyer (“Holly”) is also an owner and the human resources director, and Moses Ford (“Ford”) was Mike's “right-hand” and floating manager. [ECF No. 31-2 at 21:13-20, ECF No. 31-4 at 6:22-8:2, 26:12-19]. At the location where Plaintiff worked, the chain of command above Plaintiff included directors David Newman (“Newman”) and Tiffany Hopkins (“Hopkins”),Plaintiff's manager Kanstantsin Yakubau (“Yakubau”), and Plaintiff's assistant manager Phil Buie (“Buie”). [ECF No. 31-4 at 21:1-14, ECF No. 31-4 at 108, ECF No. 31-5 at 9:23-24].
Plaintiff left Defendant's employ briefly in November 2020, but Mike offered her more money to return to a permanent position. [ECF No. 31-2 at 77:3-5]. Additionally, while Plaintiff worked for Defendant, she also had a second job, known to Defendant, at Personal Care Ambulance Services. [See, e.g., ECF No. 31-2 at 15:16-17:1, ECF No. 31-9 ¶ 1].
In April 2021, Hopkins became regional safety and compliance director. [ECF No. 31-4 at 108].
Two additional employees worked with Holly in human resources: Laseandra Jamison (“Jamison”) [ECF No. 31-8 ¶ 3] and Volha Cohen (“Cohen”), Yakubau's wife. [ECF No. 31-4 at 19:13, ECF No. 31-2 at 144:913].
After November 2021, Plaintiff drove a permanent route-the Walterboro route-that Plaintiff testified was one of the biggest and most difficult routes that many did not want to have, although she “didn't have a problem doing it.” [ECF No. 31-2 at 20:9-21, 26:12-19, 106:7-10]. For this route, there were six or seven drivers and three of those drivers were female and four were black. Id. at 22:5-23:2.
As part of her essential job functions, Plaintiff was responsible for all package lifting, package moving, package pickup, package delivery, and route driving. [ECF No. 31-2 at 58:4-59:22, ECF No. 31-4 at 28:1-13]. The heaviest items that Plaintiff was required to lift were several hundred pounds. [ECF No. 31-2 at 61:18-62:25]. During her employment, Plaintiff would work weekends, sometimes six or seven days a week, stepping in to cover for employees who were sick and taking extra shifts as needed. [ECF No. 31-2 at 41:12-42:20, ECF No. 31-4 at 29:21-30:1, see also ECF No. 31-6 at 10:2511:5 (Newman testifying that Plaintiff's performance on the job and work ethic compared to other drivers was “exceptional”].
B. Yakubau as Plaintiff's Manager
In February 2020, Yakubau was hired as a manager and was transferred to be the manager of the Walterboro route roughly a year later. [ECF No. 31-2 at 17:23-18:1, ECF No. 31-4 at 22:7-20, 23:14-24:2]. Yakubau is a Russian male who Plaintiff testified “has a thing with females” in that he does not “like females being in control.” [ECF No. 31-2 at 30:1-20]. Jamison, in human resources who attended the meeting transferring Yakubau to be the manager of the Walterboro team, attests as follows:
During the meeting, [Yakubau] stated that he did not want any females working in his area and stated he would fire Ms. Hodges and another female employee when he became the manager of the Walterboro team. Moses Ford and Tiffany Hopkins were also present in this meeting and Mike Meyer was present for part of the meeting.[ECF No. 31-8 ¶ 5].
Mike was involved in Yakubau's hire and testified that Yakubau “was very cocky, very-came across very strong, assertive.” [ECF No. 31-7 at 34:13]. As to the meeting referenced above, Mike testified that Yakubau is “a very stern man of few words,” and their exchange during the meeting was brief. Id. at 37:2-14. Mike further testified concerning a disciplinary incident where Yakubau “was in the wrong” and “inappropriate based on gender,” as he told Hopkins to “grow some balls” or something similar, and where Holly entered a formal complaint into his record. Id. at 38:11-19, 41:4-42:8.
Holly, in contrast, testified Yakubau had never been disciplined and had only ever been given a warning for missing a package pickup. [ECF No. 31-4 at 25:5-10].
C. Plaintiff's Diabetes, Surgery, and Return to Work
Plaintiff has juvenile type one diabetes, diagnosed when she was 10, that requires daily medication, and she has been accommodated for her diabetes in the past. [ECF No. 31-2 at 37:4-24, 45:24-46:20, 53:13-16, 54:14].In January or February 2021, her doctor diagnosed her with carpal tunnel, related to her diabetes. Id. at 47:13-50:19. Plaintiff received injections for the carpal tunnel, and Ford would load her truck after her injections, but eventually she had bilateral carpal tunnel release surgery at the end of March 2021 and then “couldn't lift at all.” See id.
Plaintiff testified Defendant knew about her diabetes when she was hired because she had to obtain special permission to be a driver with diabetes. [ECF No. 31-2 at 89:5-90:5]. Holly testified she did not know Plaintiff had diabetes, and that the company had never dealt with an accommodation because of a disability. [ECF No. 31-4 at 39:24-40:1, 46:14-18]. However, Newman testified he was aware Plaintiff had diabetes and that it caused her hand injury. [ECF No. 31-6 at 13:20-25].
Plaintiff testified that prior to her surgery, Hopkins asked her to return early to work because no one wanted to do her route, and, as requested, Plaintiff returned to work less than a week after her surgery because Hopkins promised and provided her a “jumper”to assist with her route, an agreement about which Buie was aware. [ECF No. 31-2 at 35:7-14, 52:12-17, 54:1-22, 57:20-58:9]. Plaintiff testified following her surgery, she was restricted to lifting nothing over five pounds [see ECF No. 31-11 at 1 (doctor's restriction)] and informed Hopkins as follows:
A jumper is another person responsible for the lifting and moving of the packages that a driver required to drive on a route. [ECF No. 31-2 at 58:1014].
She said, in order for me to get your route done, I need you to come back to work. She said, I have nobody to run your route. She said, if I get you a jumper, would you come back to work? I said, yes. Because my doctor don't want me lifting over a certain amount with my hand. And she said, where's the work -paperwork. I gave her the paperwork and it stated on the paperwork that I wasn't able to lift that amount. And she said, well, I want to accommodate you with a jumper. I said, as long as you got me a jumper, I can come in here and do it.Id. at 55:8-20, 56:4-17. Plaintiff testified that after her surgery, she reminded Hopkins and Buie that she needed a jumper, they agreed, and Plaintiff was informed that she would have the benefit of a jumper until she was cleared to return to work without restrictions. Id. at 65:24-66:2, 70:3-21.
However, Plaintiff testified an incident occurred where an employee fell and hurt herself while loading Defendant's truck for a second time, and Plaintiff was no longer provided a jumper and was told she was a liability. [ECF No. 31-2 at 68:19-69:19]. Plaintiff has submitted the following text exchange between her and Buie:
Buie: I still have you scheduled for Friday Saturday and Sunday, but I remember you saying something like you aren't coming in. I just need clarification.
Plaintiff: If you can't have me a lifter I'm not coming because my doctor don't want me lifting anything over 5 pounds with my right hand for 4 weeks. I'm not messing up my hand. Everything he stated is documented. Let me know ....
Buie: After speaking with [Newman], we're going to have to plan on your being out for 4 weeks. Bring in your paperwork and we can put you back on the schedule once you are cleared for full duty again. Not having use of both hand puts a lot of liability on the company if something bad happens, especially driving.[ECF No. 31-2 at 137:18-144:2, ECF No. 31-1 at 2-3].
Plaintiff has also submitted the following letter from Cohen in human resources dated April 15, 2021:
Based on your medical report on April 14,2021 you are not be able lifting greater than 5lbs with right hand until follow up in 4 weeks. Delivery driver position includes load, unload, prepare, inspect, and operate a delivery vehicle. That is the reason why you are not on a schedule for the following 4 weeks. We can put you back on the schedule once you are cleared for full duty again.[ECF No. 31-1 at 4]. Plaintiff testified in response to this letter, however, that the letter was incorrect in that “[t]hey stopped me from working because they said I was a liability ....” [ECF No. 31-2 at 144:3-146:7].
Defendant's account concerning the time after her surgery differs from Plaintiff's. Defendant has submitted evidence from Buie stating:
Angela gave me a doctor's note which stated that she was not to lift or carry a certain weight limit due to an ongoing medical condition that she has, and that she would be out for surgery and rehab for that for a period of time, no less than 4 weeks. I immediately forwarded this information to my supervisor David Newman, who directed both myself and the current A manager, [Yakubau], that we should pull her from the schedule due to safety and liability concerns while she recovers.[ECF No. 31-4 at 109, see also id. at 107 (Newman stating “[i]nsuring her safety and any liability concerns, I gave the directive to my management staff, to notify Angela that she could no longer resume driver activities until medically cleared)].
However, during his deposition, Buie and Newman confirmed that Plaintiff “made a request” for a jumper, and Buie testified he contacted human resources, a jumper was provided to Plaintiff everyday, but that Plaintiff “refus[ed] to use him.” [ECF No. 31-5 at 12:17-13:24, ECF No. 31-6 at 14:5-24 (Newman testifying that a jumper was not provided for the entirety of Plaintiff's medically-restricted time because “they made the decision that she could not drive with the one hand and they requested her to get a medical release, basically stating that she could operate the vehicle.”)]. Buie stated at no point did Defendant make the decision to not provide Plaintiff a jumper because of safety concerns, reiterating that a jumper was available to her as needed. [ECF No. 31-5 at 12:17-13:24].
Similarly, Holly testified Buie informed her that a jumper was not provided to Plaintiff during the entire time she was medically restricted because Plaintiff did not like the jumper. [ECF No. 31-4 at 41:20-43:1]. Holly further testified it was her understanding that Defendant was willing to provide a jumper for the entirety of the time that Plaintiff was medically restricted. Id. at 46:7-13. However, in response to the EEOC investigation, Mike represented that providing jumpers, except to new drivers to help them acclimate, “is cost prohibitive and inefficient.” [ECF No. 31-4 at 113, see also ECF No. 31-7 at 82:13-15, 84:1-2 (“We can't afford to put two people in a truck The company does not provide jumpers unless our workers' comp agent tells Holly, You must do this.”)].
D. Plaintiff's Evidence Concerning her Termination
Plaintiff was released to work with no restrictions around May 12, 2021. [ECF No. 31-2 at 55:23-56:4]. Plaintiff testified on May 12, 2021, she met with Ford and Newman at Georgio's Restaurant, gave them her doctor's letter indicating she was released to work with no restrictions, and was told they would see her at work the next morning. Id. at 23:16-24.
Holly confirmed that Ford and Newman told her about the lunch with Plaintiff on May 12, 2021, but testified they said they told Plaintiff during the lunch that she would be returning to work but driving a different route. [ECF No. 31-4 at 49:10-25]. Newman could not recall seeing Plaintiff on this date. [ECF No. ECF No. 31-6 at 20:4-15].
The next morning, Plaintiff arrived at work and cleaned her truck before she began to load her packages. Id. at 24:7-13. Plaintiff then testified that Yakubau:
was like, why are you doing this? I'm loading my truck. He said, you no longer work here. You no longer have a position here-
around here. I said, why? He said because Phil [Buie] said that Palmetto [Parcels]-said I smelled like marijuana. I said, no. I don't smoke. And he was like, you can go ahead and go home. You no longer work here. That's when I grabbed all my stuff and I left.Id. at 24:14-22, 26:6-18. Plaintiff testified that as she left the premises, she spoke with Buie, who said he did not know she was going to be fired. Id. at 24:23-25:4. Plaintiff further testified that people from human resources, including Hopkins, as well as Ford and Newman, also did not know. Id. at 25:16-25.
Holly testified on the day in question she, Mike, Hopkins, Jamison, Buie, Yakubau, and Newman were all present, in addition to multiple other drivers. [ECF No. 31-4 at 34:24-35:5].
Jamison attests that on May 13, 2021, Plaintiff informed her that Yakubau “told her to go home so she had to leave,” “none of the owners or managers ever told Ms. Hodges she could return to work,” and that “Ford told [Jamison] that the reason Ms. Hodges was let go from Meyer was because she was a black female.” [ECF No. 31-8 ¶¶ 6-8].
Plaintiff has also submitted an affidavit from Quinisha Harley (“Harley”), who worked with Plaintiff at her second job, stating Plaintiff informed her that she had been fired from her job with Defendant, and also as follows:
A few days or weeks later, in May or June of 2021, Moses Ford told Ms. Hodges and I that the reason she had been let go from
her job driving Fed Ex trucks was because she was a black female.
During the same conversation, Mr. Ford told Ms. Hodges and I that he heard “[Yakubau]” say he would get rid of Ms. Hodges because he didn't want any other females in his area.
During this same conversation, Mr. Ford also told Ms. Hodges and I that the way the company treated Ms. Hodges was wrong and he was worried they were trying to get rid of him as well.
In a separate conversation around the same time period, David Newman told Ms. Hodges and I that the reason the company fired Ms. Hodges was because she was black ....[ECF No. 31-9 ¶¶ 4-8].
Plaintiff testified she did not know if Yakubau had the ultimate authority to hire or fire her, but that he and Buie made the decision to fire her, and that decision was not overturned. [ECF No. 28:11-14, 29:1-2]. Plaintiff testified that she did not quit, she did not tell anyone that she quit, she was never offered another route, and if she had been offered another route, she would have taken it. [ECF No. 31-2 at 32:3-23]. Plaintiff further testified both Newman and Ford informed her she was terminated because she was a black female. [ECF No. 31-2 at 71:6-73:21, 112:3-113:14].
Newman testified he had no recollection of the content of any conversation he may have had with Plaintiff following May 13, 2021. [ECF No. 31-6 at 30:14-31:20].
E. Defendant's Evidence Concerning Plaintiff's Termination
Defendant's account of May 13, 2021, differs from Plaintiff's. First, Holly testified that roughly a week prior, Newman and Yakubau discussed with Holly switching Plaintiff's route to a less-demanding route, which Holly approved. [ECF No. 31-4 at 43: 21-44:15]. Newman testified, however, that he did not know prior to May 13, 2021, that Plaintiff's route was to be changed. [ECF No. 31-6 at 23:14-29:2].
As to May 13, 2021, Holly testified as follows:
A: She walked off the job that day. She was offered a different route, due to a customer complaint, and refused to run it.
Q: Did you submit any documents?
A: Yes .... That write-up form that day for walking off the job and, I believe, the customer complaint that came from FedEx . . . . stating that she smelled like marijuana and she was rude during a pickup .... She was in an SUV . . . I was standing there, as well as Leseandra Jamison. She was clearly upset. She was in the driver's seat, said she did not want to do it because she wanted her old route back. And I said, Please. You know, you're a great driver. We'd love to have you. But we need to switch routes just for a couple of reasons, the complaint for one reason. And this is a less physically-demanding position. This will help you until you get back in the swing of it. Because she had been out for a while. And she just said she did not want to do it and put her head down. And I wished her the best ....[ECF No. 31-4 at 36:13-37:7, 48:2-14, see also ECF No. 31-4 at 107 (Newman stating Plaintiff refused to accept the new route and walked off the worksite on May 13, 2021), Id. at 109 (Buie stating the same); Id. at 108 (Hopkins stating the same, but that she was not present that day and was told second hand this information), ECF No. 31-5 at 17:11-19:9 (Buie testifying that he, Yakubau, and Newman had made the decision to put Plaintiff on a new, less-intensive route and Plaintiff refused the route); ECF No. 31-6 at 23:14-29:2 (Newman testifying, however, that he did not know her route was being moved, that he spoke to her on May 13, 2021, trying to convince her to stay, and that Buie and Yakubau said they had switched her route because of her injury)].
Both Plaintiff and Holly testified that Holly told Plaintiff “I'm sorry we failed you so many times,” but Holly stated she said that to Plaintiff on May 13, 2021, because she “just felt like [Plaintiff] had got shuffled around a lot.” [ECF No. 31-4 at 51:5-21]. Holly indicated she did not make this statement, however, in her response to Plaintiff's charge of discrimination. [ECF No. 3110].
It is undisputed that Plaintiff had no medical restrictions when she returned to work on May 13, 2021. However, Buie testified “I don't think anyone was convinced she had full function of her hand,” so “we all-myself and [Yakubau] and [Newman]-decided . . . we would put her on a residential route ....” [ECF No. 31-5 at 18:7-23].
Although Holly testified she sent Plaintiff a write up disciplinary form for walking off the job, mailing it to Plaintiff with a cover letter, and that she submitted a writeup for walking off the job and the customer complaint regarding marijuana to the unemployment agency thereafter [ECF No. 31-4 at 36:16-37:2, 37:21-38:6, 50:19-21], these documents were never produced in discovery. [See ECF No. 31 at 6].
As to the customer complaint, Holly testified a written complaint was received that stated that Plaintiff smelled like marijuana and was rude and Defendant submitted a written reply. [ECF No. 31-4 at 37:2-15, 53:5-54:7, 55:5-15]. Holly testified she saw both written documents. Id. However, Buie testified that this written complaint did not exist, there was only a verbal complaint, “more of a passing comment,” and Buie relayed the complaint to Newman, but “that was the end of it.” [ECF No. 31-5 at 31:2-35:14 (“I mean, complaints like that are just-it's-I mean, while probably nothing I wanted to hear, there's nothing I really can or care to do about it .... So we just left it alone.”); see also ECF No. 31-6 at 32:17-34:11, 36:15-21 (Newman confirming the same and that the customer complaint must have occurred prior to Plaintiff's surgery)].
Newman testified that neither Yakubau nor himself had authority to decide whether Plaintiff's employment could continue. [See ECF No. 31-6 at 43:5-11 (“This would have been an HR/Holly decision at that point. Because it was-when [Plaintiff said that I said] it was out of my hands, that's-that's what she's referring to. Because that's what I've said many times. Because I don't do any hiring or terminations. Those are done by HR and our corporate staff, which is, you know, Holly and Mike.”)].
On September 8, 2021, in response to Plaintiff's charge of discrimination, Yakubau sent the following email to Mike:
My name is Kanstantsin Yakubau, service manager for Meyer Enterprises.
Was assigned to supervise Walterboro terminal with the team in place which Angela Hodges was a part of.
Upon her return from medical leave I had a conversation with her and offered her a different area that is less physically demanding and fits her better based on the doctor's note she had provided explaining her medical condition and restrictions to lift certain amount of weight.
Second reason was the fact that Angela still worked her second driving job (based on my personal conversation with her). Based on DOT Hours of Service regulations I was forced to remove Angela from over 10,000 pounds vehicle and offer her a different area that is being serviced by smaller vehicle. This way she can keep both her jobs and not violate DOT law.
Third reason is the complaint from one of the customers in Angela's former delivery area. Based on my own investigation I came to conclusion that complaint based on Angela's personality and customer service qualities. Based on my good relationship with Angela in the past I've decided to keep her employment with the company and put her in a different delivery area to stop Angela from any interactions with customer that could lead to more issues.[ECF No. 31-3 at 1, see also ECF No. 31 at 3]. Regarding this document, Plaintiff testified that she never had a one-on-one conversation with Yakubau prior to the day she was fired, she never had a conversation with him about DOT hours, and she “didn't do D.O.T. with E.M.S.,” her other driving position. [ECF No. 176:11-178:14].
Holly testified that Defendant would terminate an employee based on one customer complaint if it was “severe,” in that the complaint concerned behavior that “could cause an accident or would violate a FedEx rule of our contract,” noting it is Defendant's general practice prior to termination to first “switch a route or something like that.” [ECF No. 31-4 at 18:10-24]. Mike testified, however, that “we would never fire somebody for a customer alleging something.” [ECF No. 31-7 at 62:17-18, see also id. at 64:20-24 (“Was there a customer allegation? Yes. I know that existed. What we did with that, I'm not there. I don't know. I can only speculate. Was she terminated for it? A hundred percent not. We-she could still be working for us, if that was the case.”)].
Mike additionally testified to his understanding that Plaintiff had been hurt at her other job, requiring surgery, and concerning this time period:
The route can't sit for three weeks. Somebody has to deliver these packages [We hired someone] And then he did really good at the route. Hodges comes back. We have another route open, adjacent to that route, in the same city ....[ECF No. 31-7 at 21-29:1]. Mike further testified that he was informed that Plaintiff refused the new route and quit. Id. at 20:10-15.
Plaintiff's supervisor was Russian and assistant manager was white; notwithstanding, Mike also testified that he was not concerned Plaintiff could have been discriminated against based on her race because her direct managers were black. [ECF No. 31-7 at 28:13-22, ECF No. 31-4 at 22:7-24:5, ECF No. 31-4 at 112]. Mike testified he did not call anyone who was a witness to the events on May 13, 2021, or his managers, or Plaintiff because it was “clear in my eyes what happened.” [ECF No. 31-7 at 60:9-12, 66:16-18, 75:17-19, 76:8-10]. Mike also testified he did not need to interview anyone or investigate the allegations because he knew he did not have a “racist bone” in his body and knows the “pulse” of his company. Id. at 27:9-20.
The record shows that John Crumb, a white male-who “complained” about the route and had less experience than Plaintiff-replaced her. [ECF No. 31-6 at 12:17-13:10, ECF No. 31-2 at 34:2-19].
Plaintiff filed a charge of discrimination against Defendant on August 10, 2021, which was processed by the South Carolina Human Affairs Commission (“SCHAC”) and dual filed with the Equal Employment Opportunity Commission (“EEOC”) on August 31, 2021. [ECF No. 31-1]. The EEOC issued a right to sue to Plaintiff on September 29, 2022. [ECF No. 1-1]. Plaintiff filed the complaint on December 14, 2022. [ECF No. 1].
II. Discussion
A. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
B. Analysis
As a preliminary matter, the court addresses Defendant's argument that Plaintiff failed to exhaust her administrative remedies as to her Title VII claims because she did not name Defendant in the relevant paperwork. [ECF No. 27-1 at 7-9]. Although Defendant has submitted a charge of discrimination dated July 2021 Plaintiff completed naming Fedex as the sole defendant [ECF No. 27-2], Plaintiff has provided the court with an updated charge of discrimination dated August 2021 naming Defendant. [ECF No. 311]. Additionally, in her deposition, Plaintiff admitted she was initially confused about who should be named in the charge because her uniform said “Fed Ex,” but clarified that she did file a charge naming the correct employer after she learned that “it was Meyers.” [ECF No. 31-2 at 150:1-7]. Defendant fails to address Plaintiff's argument and supporting evidence that she filed a charge of discrimination naming Defendant and that assertions otherwise are “patently false.” [ECF No. 31 at 9-10].
The undersigned recommends the district judge deny Defendant's motion for summary judgment based on failure to exhaust administrative remedies.
1. Title VII Claims
Title VII prohibits employers from taking any personnel actions affecting employees “based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case, “a plaintiff must show that (1) she is a member of a protected class; (2) her employer took an adverse action against her; (3) she had been fulfilling her employer's legitimate expectations at the time of the adverse action; and (4) the adverse action occurred under circumstances that raise a reasonable inference of unlawful discrimination ” Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 649-50 (4th Cir. 2021) (citation omitted); see also Holland v. Washington Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007) (“Under the McDonnell Douglas pretext framework, an employee demonstrates a prima facie case of race discrimination by showing that (1) he is a member of a protected class; (2) he suffered adverse employment action; (3) he was performing his job duties at a level that met his employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or was filled by similarly qualified applicants outside the protected class.”).
Absent direct evidence of discrimination, Plaintiff may proceed under the McDonnell Douglas burden-shifting framework. Under this framework, once a plaintiff makes out a prima facie case, the burden shifts to the employer to put forth a nondiscriminatory explanation for its actions. Sempowich, 19 F.4th at 649-50 (citation omitted). If the employer does so, the burden then shifts back to the plaintiff to show that the employer's explanation was “actually a pretext for discrimination.” Id. (citation omitted).
Plaintiff has submitted evidence she was terminated from her employment because of her race and gender, including affidavits from two witnesses, as well as testimony from Plaintiff herself that Ford and Newman, Defendant's manager and director respectively, stated her employment was terminated because she is a black female. Additionally, there is evidence that Yakubau, when he was transferred to be Plaintiff's manager, stated he did not want to work with females and planned to fire Plaintiff, doing so months later.
These statements, if accurately reported, are direct evidence that Plaintiff's employment was terminated because of her race, her gender, or both. Direct evidence of discriminatory intent includes “conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” Melendez v. Bd. of Educ. for Montgomery Cty., 711 Fed.Appx. 685, 687 (4th Cir. 2017) (citation omitted).
Defendant does not address this evidence, but argues, instead, that Plaintiff voluntarily quit her job. [See ECF No. 27-1 at 10, 13]. However, there are multiple conflicting accounts of Plaintiff's separation of employment and the facts surrounding the separation that “present[] a sufficient disagreement to require submission to a jury,” especially because “credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Anderson, 477 U.S. at 251-52.
Although Defendant argues otherwise, the court finds that Plaintiff had established a prima facie case of race and gender discrimination where she is a member of the relevant protected classes, her employment was terminated, the parties do not dispute that she was meeting her employer's legitimate expectations at the relevant time, and where Plaintiff has offered sufficient evidence that her employment was terminated under circumstances that raise a reasonable inference of unlawful discrimination. These circumstances include the direct evidence of discrimination discussed above and that her position was given to a white male who was less experienced than Plaintiff.
Here, Plaintiff maintains that, on May 13, 2021, she did not quit, she was fired, she was never offered another route, and if she had been offered another route, she would have accepted it. Defendant's witnesses have testified Plaintiff walked off the job, but also that the reason she walked off the job was that she was offered another route for various, and sometimes conflicting, reasons.
First, evidence indicates Plaintiff was offered another route because of her physical restrictions. Buie testified “I don't think anyone was convinced she had full function of her hand,” so “we all-myself and [Yakubau] and [Newman]-decided . . . we would put her on a residential route ....” [ECF No. 31-5 at 18:7-23]. Yakubau stated in documentation that he had a conversation with Plaintiff that she denies and offered her a different, less-demanding route “based on the doctor's note” she provided. [ECF No. 31-4 at 110]. However, it is undisputed Plaintiff returned to work on May 13, 2021, without physical restrictions.
The evidence also indicates Plaintiff was either fired, according to Plaintiff, or offered a different route, accordingly to Holly and Yakubau, because of a customer complaint concerning marijuana. However, multiple of Defendant's witnesses testified that the customer complaint concerning marijuana was a non-issue, that it was resolved prior to the day in question, and it was not an offense worthy of termination.
Finally, months after Plaintiff's termination, Yakubau stated in documentation that he had a conversation with Plaintiff and that he offered her a different route because of DOT service-hour regulations so she could keep her second job. Plaintiff testified, however,
That's a lie because I didn't do D.O.T. with E.M.S. I didn't sign their document with D.O.T. with E.M.S. And I didn't violate no D.O.T. hours because I was working seven days a week for them. So I didn't never violate no hours with E.M.S. because if I worked seven days with them, I can't do E.M.S. Like I said, my E.M.S. job was based off my FedEx. My E.M.S. didn't control my FedEx. I did E.M.S. when I didn't work FedEx. And I didn't violate no D.O.T. law. And he ain't had no conversation with me about that. He did not. And he know he did not have no conversation with me about that.[ECF No. 31-2 at 176:11-24].
A plaintiff can prove pretext “by showing that the employer's proffered explanation is unworthy of credence.” Holland v. Washington Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007). Additionally, “[t]he fact that an employer has offered inconsistent post-hoc explanations for its employment decisions is probative of pretext.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 647 (4th Cir. 2002) (citing EEOC v. Sears Roebuck, 243 F.3d 846, 852-53 (4th Cir. 2001)).
Defendant argues that “in cases where the hirer and the firer are the same employer, as in the case at bar, and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.” [ECF No. 27-1 at 12]. However, taking the evidence in light most favorable to Plaintiff, she was not hired and fired by the same individual.
Additionally, although Holly testified there were multiple pieces of documentation concerning Plaintiff allegedly quitting and the attendant incidents that day, none appears in the record, including any disciplinary forms or the relevant customer complaint. See Smith v. CSRA, 12 F.4th 396, 421 (4th Cir. 2021) (citations omitted). (“Here, DEA has not presented any contemporaneous documentation in support of its reasons for terminating Smith. And the proffered reasons for her termination have evolved over time.”); Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 576 (4th Cir. 2015) (“Although this constellation of justifications is not internally inconsistent, many of the purported justifications were not raised at the time of termination. Even more striking is that no one at the AOC documented any of the justifications (including those raised at the time of termination) in any way.”); Sears, 243 F.3d at 853 (“Moreover, a factfinder could infer from the late appearance of Sears' current justification that it is a post-hoc rationale, not a legitimate-explanation for Sears's decision not to hire Santana.”).
Here, Plaintiff has carried her burden, under both the direct evidence avenue and the McDonnell-Douglas framework, and, accordingly, the undersigned recommends the district judge deny Defendant's motion for summary judgment as to Plaintiff's Title VII claims based on race and gender.
2. ADA Claims
a. ADA Failure to Accommodate Claim
The ADA's prohibitions “include[] . . . not making reasonable accommodations.” 42 U.S.C. § 12112(b)(5)(A). To establish a claim for a failure to accommodate, a plaintiff must show that (1) he suffers a disability; (2) his employer had notice of the disability; (3) with reasonable accommodations, he is otherwise qualified to perform the employment position in question; and (4) his employer refuses to make such reasonable accommodations. Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013) (citations omitted).
The plaintiff bears both (1) the burden of identifying an accommodation that would allow a qualified individual to perform the job, and (2) the ultimate burden of persuasion with respect to demonstrating that such an accommodation is reasonable. Maffett v. City of Columbia, C/A No. 3:19-0832-MGL, 2021 WL 4237189, at *7 (D.S.C. Sept. 17, 2021) (citing Halperin v. Abacus Tech. Corp., 128 F.3d 191, 197 (4th Cir. 1997) (overruled on other grounds by Baird v. Rose, 192 F.3d 462 (4th Cir. 1999)). “A reasonable accommodation is one that is feasible or plausible.” Id. (citing Reyazuddin v. Montgomery Cnty., Md., 789 F.3d 407, 414 (4th Cir. 2015)).
The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A). The regulations define a substantially limiting impairment as one that “substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). Under the ADA Amendments Act (“ADAAA”), the regulations require the term “substantially limits” be “construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA” and it “is not meant to be a demanding standard.” 29 C.F.R. § 1630.2 (j)(1)(i). Major life activities include the operation of major bodily functions, including the functions of the endocrine system and the “determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” Id. at (i)(1)(ii) and (j)(vi).
The Fourth Circuit has held that “diabetes is not a per se disability under the ADA ....” Schneider v. Giant of Maryland, LLC, 389 Fed.Appx. 263, 268 (4th Cir. 2010). However, as noted by this court, “Schneider was not decided under the ADAAA, which, as discussed above, was intended to make it ‘easier for people with disabilities to obtain protection under the ADA.' 29 C.F.R. § 1630.1(c)(4).” Kemp v. JHM Enterprises, Inc., C/A No. 6:14-2604-GRA-KFM, 2015 WL 13734217, at *7 (D.S.C. Nov. 4, 2015), report and recommendation adopted, C/A No. 6:14-02604-TMC-KFM, 2016 WL 859361 (D.S.C. Mar. 7, 2016); Tadder v. Bd. of Regents of Univ. of Wis. Sys., 15 F.Supp.3d 868, 884 n.9 (W.D.Wis. 2014) (“Post-ADAAA, the endocrine system is expressly listed as a ‘major bodily function' and its operation as a ‘major life activity.' This would appear to generally establish diabetes as an impairment imposing a substantial limitation on a major life activity.”) (citations omitted)).
Here, a reasonable jury could determine that Plaintiff has produced sufficient evidence that she has a disability within the meaning of the ADA, particularly where she has submitted evidence her surgery was related to her diabetes. See, e.g., Willoughby v. Connecticut Container Corp., C/A No. 3:1100992 CSH, 2013 WL 6198210, at *9 (D. Conn. Nov. 27, 2013) (“As EEOC regulations themselves note, ‘diabetes substantially limits endocrine function,' and therefore ‘it should easily be concluded that [diabetes] will, at a minimum, substantially limit' what amounts to a major life activity. 29 C.F.R. § 1630.2(j)(3)(iii).”).
Defendant argues that “while Plaintiff has certainly alleged that she has/had both diabetes and carpal tunnel syndrome, she undeniably has failed to establish a question of material fact as to whether those medical conditions substantially limit any major life activities.” [ECF No. 27-1 at 16]. Defendant, however, fails to address case law cited above or provided by Plaintiff indicating her diabetes, in this context, is an ADA-qualifying disability. Nor does Defendant address Plaintiff's evidence that her surgery for carpal tunnel syndrome was related to her diabetes. [See id., see also, e.g., ECF No. 31-6 at 13:11-25 (Newman testifying to his belief that Plaintiff's diabetes “caused her hand injury”)].
Additionally, Plaintiff has submitted evidence indicating that Defendant had notice of her disability. [See, e.g., ECF No. 31-2 at 89:1-90:5 (Plaintiff testifying that “[e]verybody knew I had diabetes” and that she was required to get a certain certification as a diabetic to be hired originally); ECF No. 31-6 at 13:11-25 (Newman testifying he knew Plaintiff had diabetes and that Plaintiff's diabetes “caused her hand injury”)].
Turning to the third element of this claim, the parties do not appear to dispute that lifting more than five pounds is an essential function of Plaintiff's former position, that she was unable to lift more than five pounds for roughly a month following her surgery, and that Defendant temporarily provided Plaintiff a “jumper” to accomplish lifting tasks. However, the parties dispute whether the provision of a “jumper” is a reasonable accommodation, with Defendant arguing it is not required to reassign any of the essential functions of a disabled employee, but with Plaintiff arguing that the temporary provision of a jumper “is proof that Plaintiff could perform her job with a reasonable accommodation and proof that Defendant could provide a reasonable accommodation.” [ECF No. 31 at 20].
The “ADA does not require an employer to reassign any of the essential functions of a disabled employee, nor does it require an employer to hire additional employees to perform an essential function.” Stephenson v. Pfizer, Inc., 641 Fed.Appx. 214, 219 (4th Cir. 2016) (citing Martinson v. Kinney Shoe Corp., 104 F.3d 683, 687 (4th Cir. 1997)). As further explained by the Fourth Circuit:
Rather, the employer must accommodate a disabled employee only when an accommodation “would enable the employee to perform all of the essential functions of her position.” Jacobs, 780 F.3d at 581. Such an accommodation can include job restructuring, modifications to a work schedule, reassignment to a different position, the use or modification of equipment that enables the individual to perform her job, or even “the provision of qualified readers or interpreters.” See 42 U.S.C. § 12111(9)(B).Id.
Here, it is undisputed that Plaintiff's only request for accommodation was the provision of a jumper to perform some of the essential functions of her job while she recovered from surgery. Based on the case law above, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's ADA failure to accommodate claim.
b. ADA Discrimination Claim
The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees, . . . and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To establish a claim of disability discrimination under the ADA, a plaintiff must prove that (1) she has a disability, (2) she is a “qualified individual” for the employment in question, and (3) [her employer] discharged her (or took other adverse employment action) because of her disability. Smith, 12 F.4th at 412 (citations omitted). The McDonnell Douglas burden-shifting framework applies to discrimination claims under the ADA. Jacobs, 780 F.3d at 572. Therefore, if a prima facie case of ADA discrimination is established, the burden shifts back to Defendant to produce evidence of a legitimate, nondiscriminatory reason for the alleged discrimination, and Plaintiff bears the burden of showing that reason is pretext. See id.
Here, where the parties offer different versions of the relevant events, grant of summary judgment is inappropriate. Plaintiff has submitted evidence that she has a qualifying disability and that she was a “qualified individual” when her employment was terminated in that she was released to work without restrictions. Plaintiff further repeatedly testified she did not quit, she was fired, she was not offered an alternate route, and she would have accepted an alternate route.
In contrast, and as relevant to this claim, Buie testified that on May 13, 2021:
I don't think anyone was convinced that she had full function of her hand. Although she did have function, it wasn't a hundred percent .... So I-as far as I am aware, we all-myself and Kanstanstin [Yakubau] and David [Newman]-had decided that, you know, we would put her on a residential route where boxes are typically smaller, lighter, less intensive as far as the physicality of the job, so-while-you know, while she still recovered. So-but I do remember overhearing the conversation between her and Kanstanstin, and that he, essentially, described that. She was not happy with it.
[ECF No. 31-5 at 18:7-23]. However, Newman's testimony contradicts Buie's:
Because I wasn't privy of any information that they were going to, you know, move her to a different route at that-at that time [on May 13, 2021]. So I was trying to figure out what-what happened, if there was a shortage, if that's why they were moving her, or what was going on that day.
[ECF No. 31-6 at 25:10-15].
A reasonable juror could conclude Plaintiff's version of events was true, including that Plaintiff was fired immediately following her return from medical leave for her qualified disability, told it was because of a customer complaint, that Defendant expressed doubt as to her full recovery, and that Defendant would not have fired her over a customer complaint. This is coupled with the pretext analysis, as discussed above in the context of Plaintiff's Title VII claims, also applicable to her ADA discrimination claim. See, e.g., Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 240 (5th Cir. 2015) (“[T]he combination of suspicious timing with other significant evidence of pretext, can be sufficient to survive summary judgment” on an ADA discriminatory termination claim) (citation omitted).
Although a closer call than Plaintiff's Title VII claims, the undersigned is unable to recommend as a matter of law that Defendant is entitled to summary judgment on Plaintiff's ADA discrimination claim based on the above, and, most importantly, where the parties present starkly different versions of the events leading to Plaintiff's termination. Accordingly, the undersigned recommends the district judge deny Defendant's motion for summary judgment as to this claim.
3. Defamation
The tort of defamation allows a plaintiff to recover for injury to his reputation as the result of the defendant's communications to others of a false message about the plaintiff. Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998). Under South Carolina law, to state a cause of action for defamation, a plaintiff must show the existence of some message that (1) is defamatory, (2) is published with actual or implied malice, (3) is false, (4) is published by the defendant, (5) concerned the plaintiff, and (6) resulted in legally presumed or in special damages. Parker v. Evening Post Pub. Co., 452 S.E.2d 640, 644 (S.C. Ct. App. 1994). Malice and damages are presumed in the case where the defamation is actionable per se. See Holtzscheiter, 506 S.E.2d at 502; see also id. (“In other words, if the trial judge can legally presume, because of the nature of the statement, that the plaintiff's reputation was hurt as a consequence of its publication, then the libel is actionable per se. Essentially, all libel is actionable per se.”) (citations omitted).
Slander is a spoken defamation, while libel is a written defamation or one accomplished by actions or conduct.
In briefing, Plaintiff identifies one defamatory event, indicating that Buie told Holly that Defendant had received a written complaint about Plaintiff smelling like marijuana. [See ECF No. 31 at 23]. The record indicates, however, that Holly testified that a written complaint was received in the mail, that Buie may have brought it to her attention by picking up the mail, and that she learned about the contents of the complaint through the written complaint itself and not from another employee. [ECF No. 31-4 at 56:4-8, 57:11-18]. In contrast, Buie testified the written complaint did not exist and that he did not inform Holly as to any informal complaint concerning Plaintiff smelling like marijuana, although he did note that the events in question happened “several years ago” and that he may not recall all the details including, for example, whether he spoke with Plaintiff about the complaint. [ECF No. 31-5 at 31:2-35:14].
It appears that Plaintiff has failed to identify a specific defamatory statement that was published where neither Holly nor Buie has offered evidence that Buie told Holly about the customer complaint. See, e.g., Peirce v. Bryant, C/A No. 4:14-2927-BHH, 2016 WL 1061060, at *3 (D.S.C. Mar. 17, 2016) (select citations omitted) (upholding grant of summary judgment where the magistrate judge “found that Plaintiff could not identify any specific false statements made by any specific Defendant. He further found that Plaintiff could not establish defamation through her deposition testimony that all of the defendants made defamatory statements to the general public about her being “guilty of stuff.”).
Additionally, even if the evidence showed that Buie told Holly that Defendant had received a written complaint about Plaintiff smelling like marijuana, such a statement would be protected by a qualified privilege because it concerns Plaintiff's job performance and there is no indication in the record the statement was not “made in good faith and in the usual course of business.” Murray v. Holnam, 542 S.E.2d 743, 749 (S.C. Ct. App. 2001). “A communication made in good faith on any subject matter in which the person communicating has an interest or duty is qualifiedly privileged if made to a person with a corresponding interest or duty even though it contains matter which, without this privilege, would be actionable.” Id.
Plaintiff disagrees, arguing Holly testified that she would not be part of investigating this type of complaint and such an investigation was not part of her duties [see ECF No. 31-4 at 56:9-11], indicating any qualified privilege that existed may have been lost. [See ECF No. 31 at 24 (citing Murray, 542 S.E.2d at 749-51 (holding that whether a publication went “too far beyond what the occasion required, resulting in the loss of the qualified privilege is a question of fact for the jury”)].
However, it is undisputed that Holly is Defendant's human resource director, that complaints would come into Defendant's mailbox “between three days and a week after the complaint . . . happened,” and that Holly's responsibilities included whether to do a drug test on an employee. Id. at 53:5-12, 57:19-58:4. Holly additionally testified as to the relevant process as follows, revealing her involvement regarding customer complaints:
Q: You've explained a little bit already. But, typically, if Meyer Enterprises received a complaint about an employee, what is the step-by-step process to handling that complaint?
A: If it's 100 percent employee-driven, that the employee did something, the manager gets involved first. They'll-if it's an accident or, in this situation, a customer issue, they will go talk to that customer. If they can resolve it on their own, then it's usually resolved when we write the response. If not, the managing director will get involved, which would have been David Newman at that time. And if it's something that would
have been-they caused an accident and there's a possibility that there would have been drugs or something involved, then I would get involved in that aspect.Id. at 58:22-59:12.
Here, Plaintiff has not offered evidence indicating, for example, that Buie acted in bad faith regarding the relevant statement or whether any defamatory statement was made to an improper party. See Woodward v. S.C. Farm Bureau Ins. Co., 282 S.E.2d 599, 601 (S.C. 1981) (“While abuse of the conditional privilege is ordinarily an issue reserved for the jury . . . in the absence of a controversy as to the facts, as here, it is for the court to say in a given instance whether or not the privilege has been abused or exceeded”).
There does not appear to be any evidentiary dispute as to whether a customer complained about Plaintiff smelling like marijuana, where Defendant's evidence is consistent that a complaint was made and Plaintiff has offered no evidence otherwise, only an evidentiary dispute as to whether that complaint was a written complaint or an informal oral complaint. Although Plaintiff argues that she “denies the allegations of the complaint, never saw a copy of the complaint, and has no proof that a complaint was actually made” [ECF No. 31 at 23], the absence of evidence is not evidence of absence, and Plaintiff has failed to rebut Defendant's evidence that a complaint was made.
Accordingly, undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's defamation claim.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant in part and deny in part Defendant's motion for summary judgment [ECF No. 27], allowing Plaintiff's Title VII discrimination claims based on gender and race and Plaintiff's ADA discrimination claim to proceed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).