Opinion
C. A. 2:18-cv-1128-BHH-MHC
07-20-2022
NICOS SINGLETON, Plaintiff, v. SCIENCE APPLICATIONS, INTERNATIONAL CORPORATION, D/B/A SAIC, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff Nicos Singleton (“Plaintiff”) brings this action against his former employer Science Applications International Corp. (“SAIC” or “Defendant”), alleging a claim for race discrimination under 42 U.S.C. § 1981, and retaliation under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). ECF No. 29. Before the Court is SAIC's Motion for Summary Judgment, ECF No. 96 (“Motion”), filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff filed a Response, ECF No. 100, and SAIC filed a Reply, ECF No. 101. The Motion is ripe for review.
On March 4, 2021, the Court dismissed Plaintiff's Title VII race discrimination claim and hostile work environment claim. ECF No. 48.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motion be granted.
BACKGROUND
SAIC is a government contractor that provides support to the U.S. military and other contractors. See ECF No. 96-4, Trodglen Dep. Ex. 1 at 9:12-10:3. SAIC hired Plaintiff in 2013 to work on a United States Air Force contract installing sophisticated communications equipment into fielded tactical military vehicles in Kuwait, Qatar, and Afghanistan for the Mine Resistant Ambush Protected (“MRAP”) Vehicle Program. See ECF Nos. 96-2; 96-3, Pl. Dep. at 94:2395:25. SAIC first stationed Plaintiff in Afghanistan in 2013. ECF No. 96-3 at 39:22-24. SAIC transferred him to Qatar in 2015, and back to Afghanistan in May 2017 as part of a government customer mandated downsizing. Id. at 51:13-16, 54:6-22.
A. The MRAP Program
In 2016, James A. (“Tony”) Trodglen (“Trodglen”), an SAIC employee stationed in Charleston, South Carolina, was the Project Manager for the Air Force MRAP Program, as well as for the Marine Corps and Army MRAP Programs. ECF No. 96-4, Ex. 1 at 10:10-21, 22:1626:20. All SAIC employees in these programs, including Plaintiff, were supervised by and reported to Trodglen. Id.; ECF No. 96-3 at 93:3-22.
Overseas employees in the Air Force MRAP program were stationed in Kuwait, Qatar, or Afghanistan. SAIC designated a lead employee for each location (the “Site Lead”) and a lead employee for the entire overseas theater (the “Theater Lead”). ECF No. 96-4, Ex. 1 at 27:3-22. From July 2015 through July 2016, the Theater Lead for the program was Richard Robertson (“Robertson”), who was stationed in Qatar. ECF Nos. 96-4, Ex. 1 at 16:16-23; 96-5 at 83:5-21; 96-6 at ¶ 9. As Theater Lead, Robertson was responsible for making sure all of the employees in these locations were taken care of, serving as the government customer's point of contact overseas, and serving as the point of contact for Trodglen, who was stationed stateside in Charleston. ECF Nos. 96-4, Ex. 1 at 83:22-84:16; 96-3 at 57:19-23, 93:17-22.
In May or June of 2016, Robertson told Trodglen that Robertson was going to leave Qatar to return to the United States in July. ECF No. 96-4, Ex. 1 at 47:5-11, 49:5-18. Around that same time, Trodglen learned that the Marine Corps MRAP Program was ending due to cancellation of the contract, so he had to either reassign the personnel working on that contract to other overseas locations, or return them home. Id. at 50:5-51:18. Initially, Trodglen considered everyone working overseas on the Air Force MRAP Program to potentially replace Robertson, but when the Marine Corps MRAP Program was cancelled, Wes Hahn (“Hahn”) came under consideration. Id.; id. at 54:9-21, 68:2-6.
Hahn began working for SAIC on January 2, 2008. ECF 96-6 at ¶ 9. His first overseas assignment was in Afghanistan where he was given the role of Team Lead due to his prior formal training and experience in automotive work. Id. Throughout his employment, he received numerous accolades and certificates of appreciation from SAIC's military customers, including specifically for his performance on the MRAP program. Id.; ECF No. 96-7. In February 2016, Hahn started working on the MRAP Program for the Marine Corps in Kuwait, where he served as a lead and reported to Trodglen. ECF 96-6 at ¶ 9.
There were no specific qualifications or a job description for a Theater Lead, but Trodglen was looking for someone who had a good relationship with him and the client, experience working directly with clients, and prior leadership experience. Id. ¶¶ 9, 21. Trodglen concluded that Hahn fit these criteria. Id. Hahn had been doing the “exact same” type of reports on the Marine Corps MRAP Program as was needed on the Air Force MRAP Program, such as monthly status reports, weekly reports, and daily reports. ECF No. 96-4, Ex. 1 at 117:3-118:6. As a result, Trodglen believed that Hahn could “immediately day one start producing those same reports back to [Trodglen] on the Air Force project.” Id. at 118:10-15. Hahn also had worked with the client before, and the client contact had specifically commented to Trodglen on how much he liked the way Hahn worked. Id. at 118:18-23.
Hahn had been overseas for nearly eight years when the Theater Lead role became available, and Trodglen believed that Hahn's “knowledge of the different locations, what the government was requesting was definitely an asset” and a reason why Trodglen felt that Hahn was the most qualified for the Theater Lead role. Id. at 119:2-11. Hahn also had the most years of continuous service with SAIC. Id. at 118:24-119:11. Trodglen also expected the Air Force MRAP Program to end within six months, and Hahn had just led a wind down of the Marine Corps MRAP Program. Id. at 50:5-25; ECF No. 96-8, Ex. 1 at 20:11-20, 23:4-8. Finally, SAIC's government customer representative who was familiar with Hahn's work expressed that Hahn would be a good fit to replace Robertson. ECF Nos. 96-4, Ex. 1 at 57:20-58:22; 96-6 at ¶ 9. For these reasons, Trodglen thought Hahn was the most qualified to replace Robertson, and he transferred Hahn from Kuwait to Qatar in July 2016 to become the Air Force MRAP program Theater Lead. ECF Nos. 96-4, Ex. 1 at 49:5-18, 51:14-18, 57:20-58:22, 119:2-11; 96-6 at ¶ 9.
Hahn did not receive a pay increase when he became the Air Force Theater Lead. ECF Nos. 96-4, Ex. 1 at 12:1-12; 96-8, Ex. 1 at 21:4-6. SAIC's Human Resources (“HR”) records show that the transfer was recorded as a location change (“LOC”) only. ECF No. 96-9.
At the time Trodglen selected Hahn, Plaintiff had not talked to Trodglen about being a theater lead. ECF Nos. 96-3 at 105:16-106:4, 109:13-110:11; 96-4, Ex. 1 at 53:21-54:2. From January 1, 2015, to December 31, 2017, there were no job postings across SAIC for a Theater Lead position on any of SAIC's internal recruiting systems, ECF Nos. 96-6 at ¶ 21; 96-13, and Plaintiff admits that he never saw such a job posting. ECF Nos. 96-10 at RFA ¶ 12. Plaintiff testified that he has no memory of expressing interest in the role to Trodglen and he did not apply for the Theater Lead role. ECF Nos. 96-3 at 105:16-106:10, 109:13-110:11.
Plaintiff testified that at some point after Hahn's transfer, Plaintiff sent an email to Trodglen “about being treated unfair” in not becoming the Theater Lead. Id. at 116:20-25. However, Plaintiff has no memory of telling Trodglen or anyone in HR that he believed the decision to make Hahn Theater Lead was racially discriminatory. Id. at 119:6-10, 189:18-22. Trodglen similarly testified that Plaintiff never indicated to him that Plaintiff felt race played a role in his not getting the Theater Lead position. ECF No. 96-4 at 30:23-31:3.
B. Plaintiff's Promotion and Raises
In February 2016, Trodglen sent an email recommending to Plaintiff and others that they enroll in an online Penn Foster electronics training course. ECF Nos. 96-3 at 136:24-137:16; 9613. Aside from this email, Plaintiff has no memory of any other conversations with Trodglen about the Penn Foster course. ECF No. 96-3 at 113:23-114:18, 136:11-23.
Plaintiff testified that he enrolled in the Penn Foster course on April 6, 2016, to “move further up in the company.” Id. at 111:24-112:9, 113:11-20; see ECF No. 96-14. He completed the Penn Foster course on July 28, 2016. ECF Nos. 96-16; 96-15 at 280:13-282:8. As a result, on August 27, 2016, Trodglen promoted Plaintiff from Engineering Technician II with a job code of S30082 and pay grade W21 to Engineering Technician III with a job code of S30083 and pay grade W28, and gave him a 7.19% pay increase. ECF Nos. 96-6 at Resp. No. 7; 96-9 at 17-18.
On March 25, 2017, SAIC gave Plaintiff a merit pay raise of 3%. ECF Nos. 96-6 at Resp. No. 9; 96-9 at 17-18; 96-10 at RFA Resp. No. 33. On May 6, 2017, SAIC gave Plaintiff a pay raise of 4.856% associated with his transfer to Afghanistan. ECF Nos. 96-9 at 17-18; 96-10 at RFA Resp. Nos. 34, 35.
Plaintiff admitted that at no time between the time Hahn became Theater Lead and Plaintiff's resignation in June 2017 did SAIC demote Plaintiff, decrease his pay, or decrease or remove any of his employment benefits. ECF No. 96-10 at RFA Resp. Nos. 28-30; 96-29 at ¶ 2 (RTA #30).
C. Plaintiff's Complaints about Hahn's Workplace Issues
Plaintiff recalls complaining about Hahn's behavior on four occasions. See ECF No. 96-3 at 117:17-24, 191:10-21.
1. October 2016 Email to Trodglen
On October 25, 2016, Plaintiff emailed Trodglen about a disagreement he had with Hahn, and complained that Hahn was argumentative, had an unprofessional demeanor and had a tendency to “bother” Plaintiff when he was trying to relax. ECF Nos. 96-18, Oct. 25, 2016 Email; 96-3 at 143:18-23. At his deposition, Plaintiff testified that the email accurately describes his memory of the incident, and he admitted that the email does not raise race. ECF No. 96-3 at 145:13-21, 150:16-22. After Trodglen addressed the incident with Hahn, Plaintiff thanked Trodglen and said he was “good with the issue.” ECF Nos. 96-18; 96-3 at 152:14-7; 155:8-22.
After Plaintiff sent the October 2016 email to Trodglen, Hahn harassed Plaintiff on a daily basis by knocking on Plaintiff's room door in Qatar, belittled Plaintiff, and threatened Plaintiff with job loss. ECF Nos. 96-3 at 147:11-15; 96-17 at Resp. No. 15. Plaintiff testified that this conduct occurred both before and after he made complaints about Hahn. ECF No. 96-3 at 199:314.
2. December 2016 Call with Trodglen
On December 22, 2016, Trodglen attended a call with Plaintiff, Hahn, and Plaintiff's coworker, Isaiah Rivers (“Rivers”), in response to an email sent by Rivers expressing concerns about Hahn. ECF Nos. 96-19, Rivers' Dec. 22, 2016 Email; 96-20, Dec. 22, 2016 Email from Trodglen; 96-3 at 156:6-9, 158:16-22. Rivers complained about Hahn coming into the workshop one day “yelling,” upset that no one was working, and not showing “respect.” ECF No. 96-19. The email did not raise race, and Plaintiff testified that he did not know that Rivers intended to send this email, nor did Plaintiff have any part in preparing it. See id.; ECF No. 96-3 at 157:8, 158:2-5. Plaintiff admits that he cannot recall the specifics of what he and his co-workers discussed with Trodglen on the call and has no memory of anyone raising race. ECF No. 96-3 at 161:12-25.
3. March 2017 Call with Marcia Saari
On March 15, 2017, SAIC's HR representative Marcia Saari (“Saari”) attended a call with Plaintiff and two other employees in the Air Force MRAP Program, Rivers and Timothy Jennings (“Jennings”), in response to an email she received from Jennings stating, “[M]yself and 4 other employees would like to discuss our situation with you because it has be[en] ongoing for 5 plus months.” ECF Nos. 96-21, Jennings' March 5, 2017 Email; 96-3 at 180:1-185:1. Jennings copied Plaintiff and three other employees on the email, but Plaintiff testified that he did not know that Jennings intended to send this email and did not authorize Jennings to speak on his behalf to HR. Id. Saari asked Plaintiff and the other employees to send her a separate email providing a “summary of your concerns,” but Plaintiff does not believe he did so. Id.
The focus of the Saari call was Hahn's behavior. ECF No. 96-3 at 185:2-191:9. Plaintiff has no memory of anyone on the call raising race. Id.; see also ECF Nos. 96-22, Jennings Dep. at 146:18-23; 147:13-21 (testifying he does not recall anyone on the Saari call saying anything about race); 96-23, Isaiah Rivers Dep. at 236:21-237:9 (same). Plaintiff testified that Saari's call notes- which do not mention anyone raising discrimination or race as a concern-accurately reflect what Plaintiff said. ECF No. 96-3 at 187:20-22; 96-24, Saari Notes; see also ECF No. 96-25, Saari Dep. at 47:22-48:7, 49:24-25 (corroborating no one raised race on the call). Saari's notes show that Plaintiff and the others expressed workplace relations concerns about Hahn's communication as “belittling,” “controlling,” not showing “respect,” and “questioning” their job performance. ECF No. 96-24.
4. Complaint to SAIC's Anonymous Hotline
Plaintiff testified that sometime before the March 2017 call with Saari, he made a complaint to SAIC's anonymous hotline regarding Hahn, though he admitted that he cannot recall the specifics of his complaint or whether he mentioned race. ECF No. 96-3 at 168:7-179:21. In November 2016, SAIC received a hotline complaint regarding Hahn's alleged unprofessional behavior. ECF No. 96-26. Plaintiff testified that although parts of the anonymous complaint were consistent with what he reported, he did not think that was his complaint because it referenced Afghanistan and he was not in Afghanistan at the time he made his complaint. ECF No. 96-3 at 168:7-179:21. The November 2016 anonymous complaint did not mention race. See ECF No. 9626.
The November 2016 anonymous complaint stated the following: “For at least four months, Wesley has created a hostile work environment on base. Wesley communicates unprofessionally with employees (names and job titles withheld). Wesley behaves rudely, and disrespectfully towards employees (names and job titles withheld), creates tension, pits employees (names and job titles withheld) against one another, and threatens employees (names and job titles withheld) with retaliation if they report him.” ECF No. 96-26 at 3. This complaint does not mention race. Id.
D. Plaintiff's Transfer to Afghanistan.
On March 14, 2017, Trodglen sent an email announcing that SAIC had to downsize from four employees to two employees at the Qatar site starting May 1, 2017. ECF No. 96-3 at 207:5208:1, 210:20-211:2. Plaintiff learned on or before April 18, 2017, that Trodglen made the decision to send him to Afghanistan to comply with government customer-mandated downsizing in Qatar. ECF Nos. 96-27, April 18, 2017 Email; 96-3, Pl. Dep. at 51:13-17, 52:6-10; 54:6-22; 213:3-15.
Plaintiff left Qatar in May 2017, traveled to the United States for a scheduled two-week vacation, and then departed Charleston on May 23, 2017, to go to Afghanistan. ECF No. 96-3 at 99:2-23.
E. Plaintiff's Resignation.
On June 10, 2017, less than three weeks after arriving in Afghanistan, Plaintiff resigned “due to personal reasons,” stating he was “sad to be leaving such a supportive work environment.” ECF Nos. 96-28; 96-3 at 63:16-18; 214:9-215:5. Plaintiff's official last day with SAIC was June 22, 2017. ECF No. 96-9 at 17. Plaintiff had received an offer with CSRA in Kuwait, another government contractor, before he resigned. ECF No. 96-3 at 25:2-20. Plaintiff joined CSRA in July 2017, earning more money than at SAIC. Id. at 24:1-4, 26:22-25.
LEGAL STANDARD
Summary judgment should be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” See Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). However, “the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). When a party fails to establish the existence of an element essential to that party's case, there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991) (“[W]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, disposition by summary judgment is appropriate.”).
DISCUSSION
SAIC moves for summary judgment in its favor on all of Plaintiff's remaining claims. First, SAIC argues that Plaintiff cannot, as a matter of law, establish a race discrimination claim under 42 U.S.C. § 1981. Second, SAIC argues that Plaintiff has failed to establish his claim of retaliation under either § 1981 or Title VII. In his Response, Plaintiff argues that material factual questions exist with respect to both of his claims, such that summary judgment should be denied.
I. Discrimination Claim Under 42 U.S.C. § 1981
Section 1981 provides, in pertinent part, that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens[.]” 42 U.S.C. § 1981(a). The statute broadly defines the term “make and enforce contracts” as “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Id. at § 1981(b). Thus, a cause of action under § 1981 “must be founded on purposeful, racially discriminatory actions that affect at least one of the contractual aspects listed in § 1981(b).” Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018 (4th Cir. 1999) (explaining that an employment relationship is contractual and thus protected by § 1981); see also Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 434 (4th Cir. 2006) (“To prove a § 1981 claim, therefore, a plaintiff must ultimately establish both that the defendant intended to discriminate on the basis of race, and that the discrimination interfered with a contractual interest.”).
A plaintiff may avoid summary judgment on a discrimination claim through two avenues of proof: by “presenting direct or circumstantial evidence that raises a genuine issue of material fact as to whether an impermissible factor such as race motivated the employer's adverse employment decision,” or by relying on the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005). Because Plaintiff has not proffered direct evidence of discrimination on the basis of race, the undersigned will analyze his discrimination claim under the burden-shifting framework. See Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 216 (4th Cir. 2016) (explaining that the McDonnell Douglas framework applies in employment discrimination and retaliation cases arising under Title VII or § 1981); Bryant v. Aiken Reg'l Med. Centers Inc., 333 F.3d 536, 545 n.3 (4th Cir. 2003).
Initially, the plaintiff has the burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802. Once the plaintiff establishes his prima facie case, the burden of production then shifts to the employer to articulate a legitimate, non-discriminatory reason for the challenged employment action. Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010). “Finally, if the employer carries this burden, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the neutral reasons offered by the employer ‘were not its true reasons, but were a pretext for discrimination.'” Id. (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1983)).
A. Plaintiff Cannot Establish His Prima Facie Case of Discrimination.
In general, to establish a prima facie case of race discrimination, a plaintiff must show the following elements: (1) membership in a protected class; (2) that he was subjected to an adverse employment action; (3) that he was performing his job satisfactorily; and (4) the adverse employment action occurred “under circumstances giving rise to an inference of unlawful discrimination.” Adams v. Trustees of the Univ. of N.C. -Wilmington, 640 F.3d 550, 558 (4th Cir. 2011); Ferguson v. Waffle House, Inc., 18 F.Supp.3d 705, 719-20 (D.S.C. 2014); see Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010); Bryant, 333 F.3d at 545; White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004) (explaining that the fourth element is met if “similarly-situated employees outside the protected class received more favorable treatment”).
With respect to the second element, “not every personnel decision constitutes an adverse employment action.” Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 558 (D.S.C. 2013). Rather, “[a]n adverse action is one that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (internal quotation marks omitted).
Where, as here, the alleged adverse action is a failure to promote, the plaintiff must present evidence that: (1) he is a member of a protected class; (2) he applied for the position in question; (3) he was qualified for the position; and (4) he was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Bryant, 333 F.3d at 545; see Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005).
In his Second Amended Complaint, Plaintiff appears to allege discrimination based on the following alleged adverse actions: (1) failure to promote; and (2) giving “preferential treatment” to non-black employees. See ECF No. 29 at ¶ 29. It is not clear from the allegations what “preferential treatment” means, other than a promotion, but SAIC alternatively argues in its Motion that Plaintiff has failed to establish a race discrimination claim based on a theory that Hahn was rude and unprofessional toward him. See ECF No. 96-1 at 31-32. Notably, however, Plaintiff's arguments in his Response related to his discrimination claim address only a failure to promote and not any other alleged adverse action, nor does his Statement of Facts contain any facts regarding any other adverse action. See ECF No. 100 at 1-7. Accordingly, to the extent Plaintiff's Second Amended Complaint can be construed to allege another basis for his race discrimination claim, the undersigned finds that Plaintiff abandoned such claims by failing to address them in his Response to SAIC's Motion. See Dodd v. City of Greenville, No. 6:04-CV-469, 2007 WL 30333, at *15 (D.S.C. Jan. 3, 2007); see also Ashby v. Shinseki, Civ. No. 2:11-1050, 2013 WL 57728, at *2 (D.S.C. Jan 4, 2013).
SAIC argues that Plaintiff cannot establish his prima facie case because Plaintiff never applied to be Theater Lead, that position was not filled via promotion, and Hahn's transfer had no material adverse impact on the terms, conditions, or benefits of Plaintiff's employment. ECF No. 96-1 at 19-25. After careful review of the evidence submitted by the parties, the undersigned concludes that Plaintiff has failed to establish his prima facie case.
1. Plaintiff cannot establish a failure to promote claim.
In his Response, Plaintiff recites the factors for a prima facie case of failure to promote, including the requirement that he prove that “(2) he applied for the position.” ECF No. 100 at 5. Plaintiff does not argue, however, that Plaintiff applied for the Theater Lead position. Rather, Plaintiff asserts that in a “government contract situation, . . . [n]o one ‘applies' to a contract or a particular job in the traditional sense.” Id. Plaintiff does not submit any evidence to support this assertion.
The undisputed evidence demonstrates that Plaintiff did not apply to be Theater Lead. At his deposition, Plaintiff testified that at the time Trodglen selected Hahn, Plaintiff had not talked to Trodglen about being a theater lead. ECF Nos. 96-3 at 105:16-106:10, 109:13-110:11. He further testified that he has no memory of ever expressing interest in the role to Trodglen, and he did not apply for the Theater Lead role. Id.; see also ECF Nos. 96-10 at RFA ¶ 12 (admitting he never saw any job postings for the Theater Lead position). Because there is no evidence that Plaintiff applied to be Theater Lead, Plaintiff cannot establish the second element of a prima facie case of a discriminatory failure to promote claim. See Bryant, 333 F.3d at 545; see also Harrison v. S.C. Dep't of Mental Health, 641 Fed.Appx. 202, 207 (4th Cir. 2015) (affirming summary judgment for employer in race discrimination suit because plaintiffs failed to show they applied or attempted to apply for positions); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996) (holding that, to make out a cognizable failure to promote claim, a plaintiff must have applied or “sought to apply” for the position).
Moreover, the undersigned agrees with Defendant that Plaintiff has not proffered any evidence that Hahn's transfer into the Theater Lead role had any material adverse impact on the terms, conditions, or benefits of Plaintiff's employment. See Hoyle, 650 F.3d at 337; Hemphill, 9 75 F.Supp.2d at 558. To the contrary, Plaintiff admitted that SAIC never demoted him, decreased his pay, or decreased or removed any of his employment benefits. ECF No. 96-10 at RFA at Resp. Nos. 28-30; ECF No. 96-29 at ¶ 2 (RTA #30). The evidence also shows that Plaintiff received three pay raises after Hahn became Theater Lead, including a 7.19% pay increase and promotion with job code change that Plaintiff received in July 2016 after he completed the Penn Foster course. ECF Nos. 96-6 at Resp. Nos. 7, 9; 96-9 at 17-18; 96-10 at RFA Resp. Nos. 33-35. Thus, Plaintiff had not shown that he experienced any change, much less a significant change, in his employment status as a result of Hahn taking over the Theater Lead role. See Drake v. Sci. Applications Int'l Corp., No. 2:17-CV-02664-DCN-MGB, 2019 WL 1574264, at *7 (D.S.C. Mar. 4, 2019) (finding that plaintiff failed to make out a prima facie case of discrimination and noting that her allegations of adverse action were undermined by the fact that she received a raise), report and recommendation adopted, 2019 WL 1571635 (D.S.C. Apr. 11, 2019).
For all of these reasons, Plaintiff has not carried his burden of establishing a prima facie case of discrimination under Section 1981. See supra, note 3. Accordingly, SAIC's Motion for Summary Judgment should be granted as to Plaintiff's discrimination claim.
B. SAIC Has Proffered a Legitimate Non-Discriminatory Reason
Even if Plaintiff were able to establish a prima facie case of discrimination, summary judgment still would be appropriate because SAIC has proffered a legitimate, nondiscriminatory reason for its decision to put Hahn in the Theater Lead position, and Plaintiff has failed to submit evidence showing that the reason is merely pretext for discrimination.
Once an employee meets his burden of establishing a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. Haynes v. Waste Connections, Inc., 922 F.3d 219, 223 (4th Cir. 2019). “This burden is one of production, not persuasion; it can involve no credibility assessment.” Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 142 (2000) (internal quotation marks omitted).
SAIC provides the following reason for its decision to put Hahn in the Theater Lead position:
Trodglen determined that Hahn was the most qualified based on a number of objective and subjective factors that were within Trodglen's discretion to consider based on his expectations as SAIC's Project Manager for the Air Force MRAP Program:
• Hahn's very recent experience serving as the lead on the Marine Corps MRAP Program, where he performed the same duties and liaised with the same government client as was expected of the Theater Lead for the Air Force MRAP Program;
• The positive working relationship Hahn had developed with that same government client;
• Hahn's deep familiarity with the government client's requirements for the contract, including use of special software programs and reporting tools;
• The government client's satisfaction with Hahn's job performance while serving as the lead for the Marine Corps MRAP Program;
• Hahn's many years of service with SAIC, including lengthy tours overseas and a consistent series of accolades from government customers complimenting his work on the MRAP program; and
• Hahn's seniority relative to other employees in the theater....
In conjunction with these qualifications, Trodglen. . . considered the importance of keeping a highly valued asset like Hahn, with years of experience overseas and numerous accolades in appreciation for his service, when the government client unexpectedly cancelled the Marine Corps MRAP Program and Trodglen had to either reassign Hahn or send him back to the U.S.ECF No. 96-1 at 25-26. There is evidence in the record to support this reason. See, e.g., ECF Nos. 96-4, Ex. 1 at 50:5-51:18, 68:2-6, 117:3-119:11; 96-6 at Resp. 9.
C. Plaintiff Has Failed to Produce Evidence Showing that But For Race, He Would Have Been Selected as Theater Lead.
Because SAIC has met its burden of production regarding the decision to put Hahn in the Theater Lead position, the burden shifts back to Plaintiff to demonstrate “that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Reeves, 530 U.S. at 143 (internal quotation marks omitted). “The final pretext inquiry merges with the ultimate burden of persuading the court that the plaintiff has been the victim of intentional discrimination, which at all times remains with the plaintiff.” Merritt, 601 F.3d at 294 (internal quotation marks omitted). Thus, to prevail on his § 1981 discrimination claim, Plaintiff “must ultimately prove that, but for race, [he] would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S.Ct. 1009, 1019 (2020).
“A plaintiff alleging a failure to promote can prove pretext by showing that he was better qualified, or by amassing circumstantial evidence that otherwise undermines the credibility of the employer's stated reasons.” Heiko v. Colombo Sav. Bank, 434 F.3d 249, 259 (4th Cir. 2006) (citations omitted). “In conducting this analysis, [courts] assess relative job qualifications based on the criteria that the employer has established as relevant to the position in question.” Id. When comparing the relative qualifications of two candidates, the plaintiff must make “a strong showing that his qualifications are demonstrably superior” to the qualifications of the successful employee. Id. at 261-62. “When a plaintiff asserts job qualifications that are similar or only slightly superior to those of the person eventually selected, the promotion decision remains vested in the sound business judgment of the employer.” Id. at 261; see Anderson, 406 F.3d at 272 (“[Courts] do not sit as a super-personnel department weighing the prudence of employment decisions made by the defendants.”) (internal quotation marks omitted).
Moreover, a plaintiff “cannot establish pretext by relying on criteria of [his] choosing when the employer based its decision on other grounds.” Anderson, 406 F.3d at 271. Nor can a plaintiff establish pretext based on his “own self-assessment” because “it is the employer's perception and not the employee's perception, that is controlling.” Hunnicutt v. S.C. Dep't of Revenue, No. 3:08-CV-2589-JFA-JRM, 2010 WL 1344632, at *10 (D.S.C. Feb. 26, 2010), report and recommendation adopted, 2010 WL 1344352 (D.S.C. Mar. 31, 2010).
In his Response, Plaintiff contends that the Penn Foster course was a requirement for the Theater Lead position, and that while Plaintiff had completed the Penn Foster course, Hahn had not. ECF No. 100 at 5-6. However, there is no evidence in the record to support these assertions. First, Plaintiff did not complete the course until after Trodglen made Hahn Theater Lead. Moreover, Plaintiff testified that the email from Trodglen regarding the Penn Foster course did not mention the Theater Lead position and that Plaintiff did not have any conversations with Trodglen regarding the course, and he admitted that no one in HR told him the training was a requirement for the Theater Lead position. ECF Nos. 96-3 at 113:23-114:18, 121:21-22:1, 136:11-137:21; 9610 at RFA Resp. Nos. 5 & 8. Plaintiff simply has not produced any evidence showing that the Penn Foster course was a factor that Trodglen considered. See ECF No. 96-6 at Resp. No. 9; see also Heiko, 434 F.3d at 259 (explaining that courts must “assess relative job qualifications based on the criteria that the employer has established as relevant to the position in question”); Hux v. City of Newport News, Va., 451 F.3d 311, 318 (4th Cir. 2006) (“It is not within [a court's] authority to dictate the factors that employers must weigh in making a promotion.”). Thus, Plaintiff's assertions regarding the Penn Foster course are insufficient to establish pretext.
Although Plaintiff argues that he “was far more qualified” to work as Theater Lead than Hahn, ECF No. 100 at 6, Plaintiff does not present evidence to support this statement. Indeed, the undisputed evidence shows that unlike Hahn, Plaintiff did not have prior experience serving as site lead in the MRAP program for Defendant. ECF No. 96-3 at 93:23-94:2, 129:6-16. Also, Hahn, who joined SAIC in 2008, had a longer tenure than Plaintiff, who joined in 2013. See Id. at 128:713. While Hahn had prior experience working with the government customer, Plaintiff testified that Plaintiff did not. Id. at 129:17-130:3. Plaintiff simply has failed to point to evidence showing that his qualifications were “demonstrably superior” to Hahn's. See Heiko, 434 F.3d at 261-62; Adams v. Exel, Inc., No. 0:15-CV-4356-TLW-PJG, 2017 WL 746383, at *5 (D.S.C. Jan. 13, 2017) (finding that plaintiff, who had twenty years of shipping and receiving experience, nonetheless failed to show her qualifications were “demonstrably superior” to selected employees because plaintiff lacked actual on-the-job experience and “did not possess the preferred customer service experience” required for the position at issue), report and recommendation adopted sub nom. Adams v. Excel, Inc., 2017 WL 735584 (D.S.C. Feb. 24, 2017).
Viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in his favor, the undersigned finds Plaintiff has failed to raise a genuine issue of material fact regarding SAIC's legitimate justification for not selecting Plaintiff for the Theater Lead position. Plaintiff's perception of what the qualifications for Theater Lead should have been, and his conclusory self-assessment that he was more qualified than Hahn, are insufficient to prove that SAIC's reasons are pretextual. See Fahnbulleh v. Force Prot. Indus., Inc., No. 2:12-CV-00009-RMG-BHH, 2013 WL 4851623, at *8 (D.S.C. July 31, 2013) (concluding plaintiff's perception that his military experience was “commensurate with the mechanical responsibilities of the position” did not prove pretext), report and recommendation adopted as modified, 2013 WL 4851678 (D.S.C. Sept. 10, 2013); see also Jiminez v. Mary Washington Coll., 57 F.3d 369, 377 (4th Cir. 1995) (“Title VII is not a vehicle for substituting the judgment of a court for that of the employer.”). Simply put, Plaintiff has not produced any evidence to suggest that but for Plaintiff's race, Trodglen would have selected him to be Theater Lead. See Comcast Corp., 140 S.Ct. at 1019; Reeves, 530 U.S. at 143. Therefore, Plaintiff has failed to meet his evidentiary burden of demonstrating that he was not selected for the position because of his race. Accordingly, the undersigned recommends that, for this additional and alternative reason, SAIC's Motion be granted as to Plaintiff's discrimination claim.
II. Retaliation Claims Under Title VII and 42 U.S.C. § 1981.
SAIC also argues that Plaintiff has failed to establish a prima facie case of retaliation under Title VII or § 1981. Title VII forbids an employer from taking action that discriminates against an employee because that employee either has “opposed any practice made an unlawful employment practice” by Title VII or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). Employees may prove that their employer retaliated against them for engaging in opposition activity through one of two ways: by direct evidence of retaliatory animus, or through the McDonnell Douglas burdenshifting framework. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015). Because Plaintiff has not proffered direct evidence of retaliatory animus, he must establish a prima facie case of retaliation and produce evidence of pretext.
A. Plaintiff cannot establish a prima facie case of retaliation.
To succeed on a retaliation claim under the burden-shifting framework, Plaintiff must first establish that (1) he engaged in a protected activity, (2) his employer acted adversely against him, and (3) there was a causal connection between the protected activity and the asserted adverse action. Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011). Proof of but-for causation is required under both Title VII and Section 1981. See Comcast, 140 S.Ct. at 1019 (applying but-for causation to Section 1981 claims); Univ. of Tex. SW. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (holding that “Title VII retaliation claims must be proved according to traditional principles of but-for causation”). As explained below, Plaintiff has not met his initial burden of establishing a prima facie case of retaliation.
1. Plaintiff has not established that he engaged in protected activity.
Plaintiff contends that he engaged in protected activity in two ways: (1) he made “numerous, repeated inquiries into the [Theater Lead] position and Mr. Hahn's placement in the same”; and (2) he “made complaints to his supervisors about Mr. Hahn's misconduct.” ECF No. 100 at 7 (citing ECF No. 96-3 at 44:8, 68:6-10). He maintains that his conduct was sufficient to rise to the level of a complaint constituting protected activity, and he contends that he suffered adverse action as a result of these complaints. Id. (citing Faulconer v. Centra Health, Inc., No. 6:17-CV-00023, 2018 WL 2187447, at *4 (W.D. Va. May 11, 2018), aff'd, 808 Fed.Appx. 148 (4th Cir. 2020)). The undersigned agrees with Defendant that none of these actions constitute protected activity.
Plaintiff incorrectly argues that the court in Faulconer “held that a Plaintiff merely ‘complain[ing] in passing about . . . alleged inappropriate contact with female employees” was sufficient to establish protections under Title [VII].” ECF No. 100 at 7. However, the court found the opposite, explaining several reasons why these “passing” complaints fell short of conveying an arguable Title VII violation by a supervisor. See Faulconer, 2018 WL 2187447, at *4 (granting summary judgment for defendant).
“[A]n employee's complaint constitutes protected activity when the employer understood, or should have understood, that the plaintiff was opposing discriminatory conduct.” Hemphill, 975 F.Supp.2d at 560 (citation and quotation marks omitted). To engage in protected activity, the plaintiff must have “conveyed to the employer a reasonable belief that the actions complained of violated federal law.” McClam v. Lake City Fitness Ctr., No. 4:13-CV-3316-BHH, 2015 WL 5554577, at *14 (D.S.C. Sept. 21, 2015) (finding that plaintiff's written grievance was not protected activity for retaliation because it did “not make explicit or implicit claims that her race had anything to do with her treatment”).
Plaintiff has not shown that he made any complaints of race discrimination. Plaintiff testified that he has no memory of ever telling Trodglen or HR that he believed that the decision to make Hahn Theater Lead was racially discriminatory, and he never asked Trodglen, or anyone at SAIC, how or why Hahn became the Theater Lead. ECF No. 96-3 at 114:25-115:5, 117:6-11, 119:6-10, 189:18-22. Although Plaintiff testified that he emailed Trodglen that he felt he was treated unfairly, id. at 116:20-25, statements about unfair treatment without mentioning discrimination are not protected activity. See Hemphill, 975 F.Supp.2d at 562 (finding an email containing allegations of unfair treatment, being spoken to in an unprofessional, disrespectful, and degrading manner, and being openly humiliated without mentioning discrimination could not be classified as protected activity); Harris v. Home Sales Co., Civ. Action No. RDB 09-1109, 2011 WL 826347, at *5 (D. Md. Mar. 7, 2011) (finding letter to supervisor that said nothing about race discrimination and had one sentence about unfair job treatment “is not enough to trigger the protections of Title VII and Section 1981 or to put [employer] on notice that [plaintiff] felt he was being discriminated against on the basis of his race”).
Plaintiff also has failed to produce evidence that he raised race in any of his complaints about Hahn's rude and unprofessional behavior. The only email Plaintiff sent about Hahn's behavior in October 2016 does not mention race. ECF Nos. 96-3 at 145:13-21, 150:16-22; 96-18. Plaintiff has no memory of anyone raising race on a group call with Trodglen in December 2016. ECF No. 96-3 at 161:12-25. Moreover, the email that prompted that call with Trodglen, which was written by another co-worker, does not mention race either. ECF No. 96-19.
The March 2017 email from Jennings to Saari did not mention race, and Plaintiff did not respond to Saari's request for a written summary of his concerns. ECF Nos. 96-21; 96-3 at 180:1191:9. Moreover, Plaintiff testified that he has no memory of anyone mentioning or raising race on the call with Saari, and that Saari's notes of the March 15, 2017 call-which do not mention race or discrimination-were accurate. ECF Nos. 96-25; 96-3 at 180:1-191:9.
Finally, Plaintiff's testimony that he complained about Hahn through SAIC's anonymous hotline does not create a triable issue because he cannot recall any details or whether he mentioned race. ECF No. 96-3 at 168:7-179:21. Moreover, the only written anonymous hotline complaint in the record-which Plaintiff does not think he submitted-also does not mention race. Id. at 168:7179:21; ECF No. 96-26.
Based on the record before the Court, Plaintiff's complaints about Hahn's behavior did not constitute protected activity, as they were “not enough to trigger the protections of Title VII and Section 1981” or to put SAIC on notice that Plaintiff opposed discriminatory conduct protected by Title VII or § 1981. See Harris, 2011 WL 826347, at *5; see also Hemphill, 975 F.Supp.2d at 562. Accordingly, summary judgment can be granted in favor of SAIC on this basis alone.
2. Plaintiff has not shown a causal connection between any complaint and a materially adverse action.
Plaintiff has no evidence establishing a causal connection between any complaints and a materially adverse action. To prove a causal connection, a plaintiff must show that the employer took a materially adverse action “‘because the plaintiff engaged in a protected activity.'” Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007) (emphasis in original) (quoting Dowe v. Total Action Against Poverty in Roanoake Valley, 145 F.3d 653, 657 (4th Cir. 1998)). A plaintiff must show that the employer was aware of the protected activity. See Shield v. Fed. Express Corp., 120 Fed.Appx. 956, 962 (4th Cir. 2005) (citation omitted). To be materially adverse, the challenged act must be likely to “dissuade[] a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
a. Plaintiff cannot establish retaliation based on a failure to promote.
Plaintiff argues that the fact that he “was not promoted to his desired position” is sufficient to establish an adverse action for purposes of his retaliation claim. ECF No. 100 at 8. However, as explained above, Plaintiff has not produced evidence establishing a failure to promote him. See supra, Discussion § I. Moreover, even if he could establish an adverse action based on the alleged failure to promote, he cannot establish that any protected activity is causally related to the failure to promote. Because the Theater Lead decision was made in July 2016, months before he began complaining about Hahn's behavior, it is impossible for this decision to be an adverse action in response to Plaintiff's complaints.
b. Plaintiff cannot establish retaliation based on constructive discharge.
Plaintiff also contends that he was subject to an adverse action when he was constructively discharged, arguing that after he complained to HR, “Defendant made Plaintiff's work life so hostile that he was forced to resign.” ECF No. 100 at 8-9. He argues that “he had to leave Defendant's employ because he was being embarrassed, belittled, and having h[is] character assassinated by Mr. Hahn.” Id. at 9 (citing ECF No. 100-2 at 222). He also contends that “[i]t was not until he raised his complaints of discrimination that Mr. Trodglen would badger him to the point that he just couldn't take it anymore.” Id. He further argues that there was only a short period of time between his complaints and when he resigned following “the significant increase in mistreatment after his reports,” thus creating a causal link between the first two elements. Id.
It appears that the use of “Trodglen” instead of “Hahn” is a scrivener's error.
Plaintiff has failed to create a genuine issue of material fact as to constructive discharge. To demonstrate constructive discharge, Plaintiff must “show that his “working conditions became so intolerable that a reasonable person in the employee's position would have felt compelled to resign.” Perkins v. Int'l Paper Co., 936 F.3d 196, 211-12 (4th Cir. 2019) (quoting Green v. Brennan, 578 U.S. 547, 555 (2016)). “[I]ntolerability is assessed by the objective standard of whether a ‘reasonable person' in the employee's position would have felt compelled to resign, that is, whether he would have had no choice but to resign.” Id. (internal quotation marks and alterations omitted).
Plaintiff has presented evidence that after he sent the October 2016 email to Trodglen, Hahn harassed Plaintiff on a daily basis by knocking on the Plaintiff's room door in Qatar, belittled Plaintiff, and threatened Plaintiff with job loss. ECF Nos. 96-3 at 147:11-15; 96-17 at Resp. No. 15. It is not clear from the record that this conduct was causally connected to Plaintiff's October 2016 complaint, as Plaintiff testified that this conduct occurred both before and after he made complaints about Hahn. ECF No. 96-3 B at 199:3-14. Nonetheless, this conduct, without more, is insufficient to support a finding of constructive discharge. Perkins, 936 F.3d at 211-12 (explaining that “difficult or unpleasant working conditions and denial of management positions, without more, are not so intolerable as to compel a reasonable person to resign”); see Williams v. Giant Food, Inc., 370 F.3d 423, 434 (4th Cir. 2004) (being yelled at, told you are a poor manager, required to work with an injured back and chastised in front of customers is not so intolerable as to compel a reasonable person to resign); Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 273 (4th Cir. 2001) (co-worker ostracism, denial of a management position and mandatory counseling for turning in an inaccurate time card would not have compelled a reasonable person to resign); see also McLaughlin v. CSX Transp., Inc., 211 F.Supp.3d 770, 780 (D.S.C. 2016) (discussing a supervisor yelling or refusing to speak to plaintiff, and making remarks showing annoyance at her were not adverse employment actions); Brown v. SDH Educ. E. LLC, No. 3: 12-CV-2961-TLW, 2014 WL 468974, at *7 (D.S.C. Feb. 4, 2014) (holding that threats of termination are not materially adverse employment actions).
Although the conditions Plaintiff describes may have been unpleasant, Plaintiff has not produced evidence that he suffered any harm from these incidents. Nor has Plaintiff presented any evidence that Hahn's conduct affected Plaintiff's compensation, job status, or benefits. See ECF No. 96-10 at RFA at Resp. Nos. 28-30; ECF No. 96-29 at ¶ 2 (RTA #30). Accordingly, these incidents do not rise to the level of intolerability sufficient to support a finding of constructive discharge. See Ham v. Florence Sch. Dist. One, No. 4:17-CV-3345-DCC-KDW, 2019 WL 2783490, at *11 (D.S.C. June 6, 2019), report and recommendation adopted, No. 4:17-CV-3345-DCC, 2019 WL 2767923 (D.S.C. July 2, 2019) (granting summary judgment for lack of injury caused by alleged retaliatory acts). Because Plaintiff has not created a question of material fact as to whether he was constructively discharged following his complaints, he cannot establish a prima facie case of retaliation on this basis.
c. Plaintiff has not established his retaliation claim on any other basis.
In its Motion, Defendant also argues that Plaintiff cannot establish a retaliation claim based on the additional adverse actions of requiring Plaintiff to operate a forklift and to stay late at the worksite, and of transferring Plaintiff to Afghanistan. See ECF No. 96-1 at 35-38. In his Response, Plaintiff does not address these alleged adverse actions at all, nor does he provide any arguments to rebut Defendant's proffered legitimate, non-retaliatory reason for the transfer to Afghanistan. See ECF No. 100. Accordingly, to the extent Plaintiff sought to base his retaliation claim on any of these actions, the undersigned finds that Plaintiff has abandoned these claims and failed to carry his burden of showing that but for retaliation for any complaints, Plaintiff would not have been transferred. See Comcast, 140 S.Ct. at 1019; Nassar, 570 U.S. at 360; Dodd, 2007 WL 30333, at *15; see also Ashby, 2013 WL 57728, at *2. Accordingly, the undersigned re summary judgment be granted to SAIC as to Plaintiff's retaliation claim.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that SAIC's Moti Judgment, ECF No. 96, be GRANTED and this action be DISMISSED.
The parties are referred to the Notice Page attached hereto.
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
Post Office Box 835
Charleston, South Carolina 29402
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).