Opinion
Civil Action 6:20-4415-DCC-KFM
02-14-2022
Christopher M. Jackson, Plaintiff, v. Costco Wholesale Corporation, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the defendant's motion for summary judgment (doc. 43). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
I. BACKGROUND AND FACTUAL ALLEGATIONS
Costco Wholesale Corporation ("Costco") hired the plaintiff in California in 1999 (docs. 43-2, Jackson dep. at 16:12-14; 44 at 1). From June 2015 until January 30, 2018, the plaintiff worked as a receiving manager at Costco's Greenville, South Carolina location (doc. 43-4, Schmertzler decl. ¶ 3). As a receiving manager, the plaintiff's responsibilities included scheduling, developing, counseling, training, and directing department personnel; overseeing and directing warehouse shipping and receiving departments; and providing and ensuring prompt and courteous member service (doc. 43-3, Romaella dep. at 55:6-23 & ex. 11). The job description provided that performing the essential functions of the receiving manager position requires frequent standing, frequent walking, occasional climbing, and occasional lifting and carrying of up to 50 pounds (id.). Further, the receiving manager position is a full-time management position requiring at least 45 hours of work per week (id.).
The plaintiff had knee surgery in October 2015, and Costco granted him a medical leave of absence until early March 2016 (doc. 43-2, Jackson dep. at 118:7-25). On March 2, 2016, the plaintiff's health care provider informed Costco that the plaintiff was released to return to work with no restrictions effective March 8, 2016 (id. at 118:7-19 & ex. 13). Based on this information, the plaintiff returned to work on March 8, 2016, and he worked in his position as receiving manager on March 8th and 9th (id. at 121:13-19). However, the plaintiff felt that he was unable to continue, so he obtained a doctor's note (id. at 121:13-122:8). The plaintiff gave Costco this doctor's note, which provided that the plaintiff could only work a maximum of five hours per day (id. at 119:18-121:19 & ex. 14). Cindy Schmertzler, Costco's director of integrated leave, submitted a declaration providing that Costco was unable to accommodate these new restrictions, as an essential function of being a manager is working at least 45 hours per week (doc. 43-4, Schmertzler decl. ¶ 5). Consequently, Costco placed the plaintiff back on leave (id.). The plaintiff, however, submits that Costco informed him that he “had to be 100 percent to return to work” (doc. 43-2, Jackson dep. at 121:9-12).
On April 14, 2016, Costco received updated restrictions from the plaintiff's health care provider stating that he could return to work on April 19, 2016, with no restrictions (doc. 43-2, Jackson dep. at 122:16-123:2 & ex. 15). The plaintiff returned to work on this date (id.). Thereafter, the plaintiff worked for approximately one month, until late May 2016, when he requested intermittent leave under the Family and Medical Leave Act ("FMLA") from May 26 through September 26, 2016 (id. at 123:9-16 & ex. 16). As part of his request, a certification from his health care provider suggested that the plaintiff may need to be absent for up to ten hours at a time once or twice per week because of incapacity, as well as one to two days per month for appointments and treatment (id.). However, the plaintiff had exhausted his available FMLA leave with his continuous leave through April 2016 (id. at 124:5-16, ex. 17). Nevertheless, Costco offered to accommodate the plaintiff by allowing him to take up to two full days or four partial days of absence each month because of his knee problems without having those absences count against him under Costco's attendance policy (id.). As an alternative, Costco also offered the plaintiff the option of leave through Costco's personal medical leave policy of up to one year (id.). The plaintiff declined these options and continued to work without incident (id. at 125:2-11).
On August 15, 2016, the plaintiff requested and was granted a continuous leave of absence under Costco's personal medical leave policy for surgery on his right knee (doc. 43-2, Jackson dep. at 126:4-18 & ex. 18). The plaintiff had this surgery on September 1, 2016, and his leave spanned from September 1, 2016, until March 1, 2017, with the first 11 weeks covered by the FMLA and the remainder under Costco's personal medical leave policy (id. at 49:19-50:6, 126:1-18 & ex. 19). However, on December 14, 2016, the plaintiff submitted a note from his doctor advising that he would be unable to return to work until March 16, 2017, at the earliest (id. at 128:15-130:14 & ex. 20).
On March 15, 2017, the plaintiff again visited his doctor and received a note stating that he could return to work on April 3, 2017, at full duty but that he "needs to be able to sit down every two hours for six months" (doc. 43-2, Jackson dep. ex. 3). This was the first indication that Costco received from the plaintiff's health care provider that the plaintiff would need accommodations to be able to return to work (doc. 43-4, Schmertzler decl. ¶ 7). Because of the ambiguity in this note, Costco's integrated leave and accommodations team referred the matter to Briotix, a third-party vendor specializing in clinical and ergonomic review, to seek clarification of the doctor's note (id. ¶ 8). Briotix contacted the plaintiff to obtain his consent for its clinicians to contact his doctor, but the plaintiff did not respond to Briotix's calls (id. ¶ 9).
As a result, Costco's general manager Dinah Romaella ("Ms. Romaella") sent the plaintiff three letters over the next several months seeking clarification of the doctor's restrictions and offering him leave through August 31, 2017, when the plaintiff's one-year leave allowance would be exhausted (doc. 43-2, Jackson dep. ex. 21, 22, 23). The final letter explained that if the plaintiff did not provide guidance on his medical restrictions prior to August 30, 2017, he would be contacted at that time to schedule a job assessment review meeting to explore a possible return to work with or without accommodations (id. ex. 23).
The plaintiff subsequently met with Ms. Romaella and informed her that he was interested in participating in a job assessment meeting (doc. 43-2, Jackson dep. at 149:12-22). The plaintiff informed Ms. Romaella that he had a doctor's appointment in mid-September to evaluate his restrictions, and Ms. Romaella agreed to continue the plaintiff's leave until after that appointment (id. at 149:17-151:17). After his appointment, the plaintiff provided Costco with documents from his health care providers with new restrictions (id. at 152:2-153:4, 153:11-21, 155:25-156:18 & ex. 25, 26, 27).
Subsequently, the plaintiff had a job assessment meeting with Costco (doc. 43-4, Schmertzler decl. ¶¶ 15-16). At this meeting, Costco agreed to inform the plaintiff of job openings at Costco over the next 60 days, and the plaintiff was able to apply to the open positions that he desired (doc. 43-2, Jackson dep. ex. 28, 30, 35, 36, 38, 39, 40, 41). Over the next 60 days, the plaintiff communicated his interest in many of the open positions, but Briotix determined that the plaintiff either could not perform the essential functions of those positions with or without a reasonable accommodation or was not qualified for the position (doc. 43-5, Tortonici decl. ¶¶ 7-10). The 60-day period ultimately expired, and, with the plaintiff surpassing the one year of leave allowed under Costco's policy, Costco terminated the plaintiff's employment effective January 30, 2018 (id. ¶ 11).
On November 27, 2017, the plaintiff filed a charge of discrimination ("2017 charge") with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination based on his disability in violation of the Americans with Disabilities Act ("ADA") (doc. 43-2, Jackson dep. ex. 1). Moreover, on September 24, 2018, with the assistance of counsel, the plaintiff filed a second charge ("2018 charge") with the EEOC and the South Carolina Human Affairs Commission ("SCHAC"), again alleging discrimination based on his disability but also alleging discrimination based on his age, race, color, and retaliation (docs. 46-3, Murrary decl. ex. D; 44 at 7). The 2017 charge was investigated by the EEOC, but the 2018 charge was deferred to the SCHAC for investigation (id. at ¶ 7). On September 30, 2019, while the EEOC's investigation into the 2017 charge was still ongoing, the SCHAC issued a no-cause dismissal and notice of right to sue on the 2018 charge (id. ¶ 8). One month later, on October 30, 2019, the EEOC issued its own no-cause dismissal and notice of right to sue on the 2018 charge (id. ¶ 9). On July 31, 2020, the EEOC concluded its investigation on the 2017 charge and issued a cause determination (id. ¶ 10). After conciliation failed, the EEOC issued the plaintiff a dismissal and notice of rights on the 2017 charge on September 29, 2020 (id. ¶ 11).
The plaintiff, proceeding pro se, filed a complaint on December 21, 2020, and an amended complaint on February 1, 2021 (docs. 1; 11). In both his complaint and amended complaint, the plaintiff alleged claims of disability discrimination based on his employment termination in violation of the ADA, failure to accommodate in violation of the ADA, and failure to prevent discrimination (id.). The plaintiff subsequently obtained counsel, who filed a notice of appearance on March 16, 2021 (doc. 20). On October 25, 2021, Costco filed a motion for summary judgment (doc. 43). The plaintiff filed a response on November 8, 2021 (doc. 44), and, on November 15, 2021, Costco filed a reply (doc. 46). Accordingly, this matter is now ripe for review.
II. APPLICABLE LAW AND ANALYSIS
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved 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 judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only 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.
B. ADA Claims
Costco first argues that it is entitled to summary judgment on the plaintiff's claims pursuant to the ADA because they are untimely, as the plaintiff failed to file the instant matter within 90 days of receiving his first dismissal and notice of rights from the EEOC (doc. 43-1 at 14-16).
In "deferral states" such as South Carolina, a plaintiff must exhaust his administrative remedies by filing a charge of discrimination with the EEOC within 180 days of the alleged discriminatory act. 42 U.S.C. § 2000e-5(e)(1), (f)(1). Next, if a charge is filed with the EEOC, on receipt of a charge, the EEOC is to notify the employer and investigate the allegations. Id. § 2000e-5(b). The EEOC may "endeavor to eliminate [the] alleged unlawful employment practice by informal methods of . . . conciliation." Id. The EEOC also has first option to bring a civil action against the employer in court. Id. § 2000e-5(f)(1). If the EEOC chooses not to sue, and whether or not the EEOC otherwise acts on the charge, a complainant is finally entitled to a notice of right to sue 180 days after the charge is filed. Id. Complainants then have 90 days from the receipt of the notice of right to sue to file their claims under the ADA. Id.
Pro se litigants are not exempt from the 90-day statutory requirement. See, e.g., Anderson v. Greenville Health Sys., C/A No. 6:16-01051-MGL, 2016 WL 6405751, at *2 (D.S.C. Oct. 31, 2016) (dismissing a Pro se plaintiff's complaint as untimely and rejecting the plaintiff's request for equitable tolling to relieve the "strict application" of the limitations period). The Supreme Court of the United States has emphasized the importance of adhering to this time period, stating that "[procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants . . . ." Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984). Moreover, timing requirements for filing a lawsuit following an EEOC notice of right to sue have been strictly construed. See Harvey v. City of New Bern Police Dep't, 813 F.2d 652, 654 (4th Cir. 1987) (holding that a claim filed 91 days after notice was untimely).
Further, courts have found that when a plaintiff files two charges of discrimination regarding the same allegations and then receives two notices of right to sue from the EEOC on the same issues, the 90-day time frame begins upon the plaintiff's receipt of the first notice. See e.g., Khan v. Jenkins, C/A No. 85-2252, 1987 WL 36862, at *4 (4th Cir. Mar. 19, 1987) (noting, in the context of the 90-day statutory time frame, that "where the EEOC issues a second right to sue letter concerning alleged discriminatory practices already covered by a prior right to sue letter, the second letter is without effect"); Anderson v. Greenville Health Sys., C/A No. 6:16-01051-MGL, 2016 WL 8674619, at *5 n.7 (D.S.C. Oct. 14, 2016) ("[T]he complainant is on notice from the date of receipt of the first dismissal letter that he has 90 days to file suit on the claims made to the EEOC . . . .") (citation and internal quotation marks omitted), R&R adopted by 2016 WL 6405751 (D.S.C. Oct. 31, 2016); Howard v. Am. Inst. of Certified Pub. Accts., C/A No. 1:08CV483, 2008 WL 5232794, at *3 (M.D. N.C. Dec. 12, 2008) ("Plaintiff did file this lawsuit within 90 days of receiving the "right-to-sue" letter on the second EEOC Charge. The second EEOC Charge and the "right-to-sue" letter based on that charge, however, do not affect Plaintiff's ability to pursue claims based on time-barred allegations contained in his first EEOC Charge."), R&R adopted in relevant part by 2009 WL 1173017 (M.D. N.C. Apr. 27, 2009); Fells v. Va. Dept of Transp., C/A No. 2:08cv74, 2008 WL 11512344, at *3 n.5 (E.D. Va. Oct. 28, 2008) (noting that "[t]he original right-to-sue letter triggers the statutory time limit, even if a second letter is issued" and "[t]hus, the second right-to-sue letter . . . does not reset the statutory time limit on plaintiff's claim.") (citation omitted); Williams v. Strickland, C/A No. 3:92-515-19, 1993 WL 153915, at *5 (D.S.C. Mar. 12, 1993) (finding that a plaintiff's claim was time barred because she did not file the complaint within 90 days of the first right to sue letter, even though she filed her complaint within 90 days of the second right to sue letter).
While not argued by the parties, in Khan, the Court of Appeals for the Fourth Circuit carved out an exception to the 90-day statutory time frame. The court found that “where the EEOC has issued a second right to sue letter pursuant to a second charge of discrimination arising from a continuing violation of Title VII, the claimant has the right to proceed on the second letter, despite her failure to file a complaint on her first right to sue notice.” 1987 WL 36863, at *4 (emphasis added). In that case, the plaintiff filed two charges with the EEOC regarding unequal pay, one on November 7, 1978, and one on May 27, 1980. Id. at *1. The EEOC issued a notice of right to sue regarding the plaintiff's first charge on August 28, 1981, and another regarding her second charge on September 30, 1982. Id. The plaintiff, however, did not bring her lawsuit within 90 days of receipt of the first notice of right to sue. Id. The court noted that an unequal pay violation is continuing “in that is arises with the receipt of each ‘unequal paycheck'” and found that the last legally significant instance of alleged discrimination under the plaintiff's unequal pay claim occurred upon the defendant's last payment to the plaintiff in June 1980. Id. at *4. Thus, because the plaintiff filed two charges alleging a violation that was still ongoing at the time that both charges were filed, the court concluded that the plaintiff could proceed with her lawsuit based on the second notice of right to sue. Id. Here, however, in the 2018 charge at issue, on which the plaintiff received his first notice of right to sue, the plaintiff did not allege a continuing violation. The plaintiff filed this charge with the assistance of counsel and did not check the box on the form for continuing action (docs. 43-6 at 34; 44 at 7). Moreover, the plaintiff indicated that the latest discrimination had taken place on January 31, 2018, which was the day after his employment was terminated (doc. 43-6 at 34). Consequently, the continuing violation exception does not apply here.
From a policy standpoint, allowing a plaintiff to file multiple charges of discrimination with the EEOC regarding the same allegations and re-starting the 90-day time frame with each notice of right to sue would effectively allow plaintiffs to evade the statutory time frame and encourage plaintiffs to file multiple charges. See Anderson, 2016 WL 8674619, at *5 n.7 (stating that to hold that the statutory time-frame began upon the plaintiff's receipt of a subsequent notice "would allow any future plaintiff to obliterate the ninety day limitation period by repeatedly refiling the same charge with the EEOC"); Soso Liang Lo v. Pan Am. World Airways, Inc., 787 F.2d 827, 828 (2d Cir. 1986) ("[W]hether the present action is time barred must be determined with reference to only the first Notice of Right to Sue. Otherwise, the time limitations of 42 U.S.C. 2000e-5(f)(1) would be meaningless, because potential Title VII plaintiffs could evade those requirements simply by seeking additional Notices of Right to Sue whenever they pleased.").
However, it is clear that this line of cases does not apply when a plaintiff files a second charge of discrimination containing different allegations, as the new allegations would not be encompassed by the EEOC's former notice of right to sue. For example, in Jones v. GKN Auto., Inc., C/A No. 1:99CV00592, 2000 WL 707295, at *2-3 (M.D. N.C. Apr. 13, 2000), the court found that the 90-day time frame began to run upon a plaintiff's receipt of his second notice of right to sue because his two EEOC charges identified discrimination in different areas: discrimination in job assignment and discrimination in promotions and discipline. Likewise, in Dowdell v. Sunshine Biscuits, Inc., 90 F.R.D. 107, 115-16 (M.D. Ga. 1981), the court found that a plaintiff's 90-day time frame began to run upon his receipt of the second notice of right to sue when his second charge alleged an additional type of discrimination. In his first charge, the plaintiff alleged discrimination in job assignment. Id. at 116. In his second charge, however, the plaintiff repeated the allegation of discrimination in job assignment and also alleged discrimination in promotions, discipline, and the posting of job openings. Id. The plaintiff received notices of right to sue on both charges and filed suit within 90 days of receiving the second notice of right to sue but not the first. Id. The court noted that plaintiffs "cannot be permitted to extend this period by repeatedly filing broad, duplicative charges with the EEOC and obtaining multiple right to sue letters." Id. The court then dismissed, as untimely, the plaintiff's discrimination in job assignment claim, as that claim became ripe upon receipt of the first notice of right to sue. Id. However, the court found that the new allegations of discrimination in promotions, discipline, and the posting of job openings were not duplicative and allowed the plaintiff to proceed with his lawsuit on those claims. Id.
Here, in both his complaint and amended complaint, the plaintiff brought claims under the ADA for disability discrimination based on his employment termination and failure to accommodate. The plaintiff filed two charges encompassing these claims (docs. 43-2 at 58; 43-6 at 34-42). As set out above, the EEOC issued its first notice of right to sue to the plaintiff on October 30, 2019, which was in regard to the plaintiff's 2018 charge. The undersigned finds that once the plaintiff received this first notice of right to sue, which encompassed the claims that he ultimately included in his complaint, the 90-day time frame began to run. Moreover, the plaintiff filed his initial complaint on December 21, 2020, over one year after his receipt of the notice. Further, the fact that the plaintiff's 2017 charge was still pending when he received his first notice of right to sue does not render his complaint timely because, as set out above, subsequent notices of right to sue from the EEOC regarding the same allegations have no effect on the commencement of the 90-day statutory time frame and the plaintiff's 2018 charge encompassed the claims at issue.
The plaintiff argues that the above-cited cases are distinguishable because the plaintiffs in those cases filed their lawsuits based on the EEOC's notice of right to sue regarding their second charge, whereas he filed his lawsuit based on the EEOC's notice of right to sue regarding his first charge, the 2017 charge (doc. 44 at 8). However, the fact that the plaintiff received a notice of right to sue regarding his second charge first is of no consequence, as he was entitled to bring his lawsuit upon receiving that notice. In a similar situation, in Price v. Greenspan, 374 F.Supp.2d 177, 184 (D.D.C. 2005), aff'd sub nom. Price v. Bernanke, 470 F.3d 384 (D.C. Cir. 2006), a plaintiff filed three charges of discrimination and the first notice of right to sue that he received was regarding his second charge. The court found that the plaintiff's claims were time-barred, as he failed to bring his lawsuit within 90 days of the EEOC's first notice. Id. The court explained:
Charges addressed in stale decisions, those issued more than 90 days before filing of suit, may not form the basis of an employee's Title VII lawsuit regardless of subsequent unexpired
decisions. This is especially so when the employee presents an unexpired decision addressing charges that are identical to those addressed in the stale decision. Similarly, an unexpired decision can only be the basis of a Title VII suit to the extent that it addresses charges different, if related, to those addressed in stale decisions.Id. (internal citations omitted). Likewise here, the plaintiff's claims encompassed in his 2018 charge became stale 90 days after he received the EEOC's notice of right to sue, irrespective of his unexpired 2017 charge.
Moreover, while the 90-day filing requirement is, like a statute of limitations, subject to equitable tolling, Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 Fed.Appx. 314, 321 (4th Cir. 2011), the plaintiff has neither argued equitable tolling nor presented any allegations regarding either of the circumstances that may warrant tolling the 90-day filing requirement. See Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.2000) (noting that equitable tolling applies in two general kinds of situations: when "the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant" or when "extraordinary circumstances beyond the plaintiffs' control made it impossible to file the claims on time."). Therefore, the undersigned finds that the plaintiff's claims for disability discrimination based on his employment termination and failure to accommodate pursuant to the ADA are time-barred and recommends that the district court grant Costco's motion for summary judgment on these claims.
Because the undersigned finds that the plaintiff's claims are time-barred, Costco's remaining arguments on the merits on the plaintiff's claims need not be addressed.
C. Failure to Prevent Discrimination
In his amended complaint, the plaintiff also brought a claim for failure to prevent discrimination (doc. 11 at 10). Costco notes in its motion that the plaintiff cited to no statute on which he based his claim and that it could not find such statute in the court's jurisdiction (doc. 43-1 at 26). The plaintiff failed to respond to this argument or submit any argument on his failure to prevent discrimination claim in his response to the defendant's motion for summary judgment (see generally doc. 44).
As an initial matter, it is unclear whether the plaintiff is bringing this claim pursuant to the ADA or as an independent cause of action. To the extent that the plaintiff brings this claim pursuant to the ADA, his claim is time-barred for the reasons set out above. However, if the plaintiff is bringing this claim as an independent cause of action, research revealed no recognized claims in this circuit for failure to prevent discrimination. Therefore, the undersigned recommends that the district court also grant summary judgment for Costco on the plaintiff's failure to prevent discrimination claim.
III. CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the Costco's motion for summary judgment (doc. 43) be granted.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the next page.
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 250 East North Street, Suite 2300 Greenville, South Carolina 29601
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).