Opinion
C. A. 2:18-cv-1126-BHH-MHC
07-20-2022
ISAIAH R. RIVERS, Plaintiff, v. SCIENCE APPLICATIONS, INTERNATIONAL CORPORATION, D/B/A SAIC, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff Isaiah Rivers (“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. 28. Before the Court is SAIC's Motion for Summary Judgment, ECF No. 100 (“Motion”), filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff filed a Response, ECF No. 102, and SAIC filed a Reply, ECF No. 105. 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. 46.
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. 100-4, Ex. 1 at 9:12-10:3. In 2016, Plaintiff was employed by SAIC to work on a United States Air Force contract installing sophisticated communications equipment into fielded tactical military vehicles in Qatar for the Mine Resistant Ambush Protected (“MRAP”) Vehicle Program. See ECF No. 100-7 at 72:15-75:7.
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. 100-4, 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. 100-3 at 4.
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. 100-4, 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. 100-4, Ex. 1 at 16:16-23; 100-5 at 83:5-21; 100-6 at ¶ 9; 100-7 at 94:13-21. 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. 100-5 at 83:22-84:16; 100-7 at 94:23-95:14.
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. 100-4, 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 came under consideration. Id.; id. at 54:9-21, 68:2-6.
Hahn began working for SAIC on January 2, 2008. ECF 100-6 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. 100-8. 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 100-6 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. 100-4, 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. 100-9, 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. 100-4, Ex. 1 at 57:20-58:22; 100-6 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. 100-4, Ex. 1 at 49:5-18, 51:14-18, 57:20-58:22, 119:2-11; 100-6 at ¶ 9.
Hahn did not receive a pay increase when he became the Air Force Theater Lead. ECF Nos. 100-4, Ex. 1 at 12:1-12; 100-9, 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. 100-10.
At the time Trodglen selected Hahn, Plaintiff had not talked to Trodglen about being a theater lead. ECF No. 100-4, 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. 100-6 at ¶ 21; 100-13, and Plaintiff admits that he never saw such a job posting. ECF Nos. 100-11 at ¶¶ 14, 15; 100-14 at ¶ 15. Plaintiff testified that, from the time he learned that Robertson was leaving to the time Hahn became Theater Lead, Plaintiff did not have any conversations with Trodglen about who would become Theater Lead, he did not see any job posting for the Theater Lead position, and he did not apply for the Theater Lead role. ECF Nos. 100-7 at 100:11-101:14; 100-11 at ¶ 13.
Plaintiff testified that after Hahn had been made Theater Lead, Plaintiff had multiple conversations with Trodglen about how Hahn became Theater Lead without completing the only Penn Foster electronics training course. ECF No. 100-7 at 115:19-116:14; see ECF No. 28 ¶ 17. However, while Plaintiff told Trodglen that “he was not being treated fair” by not becoming the Theater Lead, he testified that he never told Trodglen that he believed the decision to make Hahn the Theater Lead was racially discriminatory. ECF Nos. 100-7 at 116:15-20; 100-16 at ¶¶ 10, 11; 100-17 at ¶¶ 10, 11.
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. 100-7 at 136:24-137:16; 100-15; 100-6 at Resp. No. 9. Plaintiff testified that Trodglen also had a conference call with him and others encouraging them to take this course. ECF No. 100-7 at 152:22-154:23.
Plaintiff testified that he enrolled in the Penn Foster course on July 22, 2016, Id. at 134:10135:6, almost three weeks after Hahn became Theater Lead, ECF No. 100-6 at Resp. No. 9, and completed the Penn Foster course in December 2016, ECF Nos. 100-7 at 143:5-144:2; 100-14.
After Plaintiff completed the Penn Foster course in December 2016, Trodglen promoted him from Engineering Technician II with a job code of S30082 and a pay grade of W21 to Electronics Technician Maintenance I with a job code of S23181 and a pay grade W36, and gave him a 11.84% pay increase. ECF Nos. 100-6 at Resp. No. 7; 100-10 at Ex. 2; 100-7 at 150:6-10, 152:4-10; 100-11 at ¶¶ 25, 29; 100-13 at RTA#29.
On March 25, 2017, SAIC gave Plaintiff a second pay raise of 5.7%. ECF Nos. 100-6 at Resp. No. 9; 100-10 at Ex. 2; 100-11 at ¶ 30.
On March 25, 2018, SAIC gave Plaintiff a third pay raise of 10%. ECF Nos. 100-6 at Resp. No. 9; 100-10 at Ex. 2; 100-11 at ¶ 31.
C. Plaintiff's Complaints about Hahn's Workplace Issues
Plaintiff recalls complaining about various workplace issues with Hahn on five occasions - four emails to Trodglen and one phone call with SAIC's HR representative. See ECF No. 100-7 at 246:2-247:3.
1. December 2016 Email to Trodglen
On December 22, 2016, Plaintiff emailed Trodglen complaining that Hahn had yelled at him and other employees, including Nicos Singleton (“Singleton”), because he believed they were not doing their jobs, and had asked Plaintiff why he did not call Hahn and Trodglen “boss.” Id. at 171:9-173:24; ECF No. 100-18. Plaintiff testified that this email accurately describes the incident. Id. In response to Plaintiff's email, Trodglen held a conference call with Plaintiff, Hahn, and others. ECF No. 100-7 at 174:19-176:16. Plaintiff does not remember what he said on the call, but remembers that the parties discussed “the matter at hand and just having . . . respect for each other.” Id.
2. February 2017 Email to Trodglen
On February 13, 2017, Plaintiff emailed Trodglen complaining about Hahn taking a call on Bluetooth speaker while commuting home when Plaintiff was “trying to relax,” which led to an argument. ECF Nos. 100-20; 100-7 at 177:22-182:2. Plaintiff testified that he found Hahn's “pitch” “obnoxious.” Id. Plaintiff further complained that Hahn “slam[s] room doors and cabinets and stomps up and down the stairs without any consideration for weather [sic] someone is sleeping or resting on their time off.” Id. Plaintiff testified that the email accurately describes his complaint.
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-Singleton and Timothy Jennings (“Jennings”)-in response to an email she received from Jennings expressing concerns about Hahn. ECF No. 100-21; 100-7 at 224:8-18. Plaintiff testified that he did not know anything about the “4 incidents” mentioned by Jennings in his email, or that Jennings planned to send the email. ECF No. 100-7 at 189:24-191:17. Plaintiff testified that he does not recall who said what on the call with Saari beyond “regular issues” and that he does not recall anyone saying anything about race. Id. at 236:21-237:9. Plaintiff further testified that Saari's notes from the call-which do not mention any of these employees raising discrimination or race among their concerns- accurately reflect what Plaintiff said on the call. Id. at 243:14-244:7; ECF Nos. 100-22; 100-23 at 47:22-48:7, 49:24-25. Saari's notes reflect that Plaintiff and the others expressed workplace relations concerns about Hahn's communication style as “belittling,” “controlling,” not showing “respect,” and “questioning” their work performance. ECF No. 100-22. Saari's notes also reflect that Plaintiff complained about Hahn's use of “inappropriate language.” Id. Hahn did not use any racially derogatory language towards Plaintiff; rather, the “inappropriate language” was Hahn's use of “regular curse words” like the “f-word.” ECF No. 100-7 at 244:8-14.
When scheduling the call, Saari asked participants to send her a separate email providing a “summary of your concerns,” which Plaintiff did on March 14, 2017. ECF Nos. 100-24; 100-7 at 239:9-25. Plaintiff testified that this email accurately summarizes the types of issues he discussed with Saari on the call. ECF No. 100-7 at 240:1-5. The email states that Hahn came into Plaintiff's room without permission, used vulgar language and had “sudden outburst[s],” told Plaintiff and Singleton “yall are walking out here like yall are going to attack me,” and admitted to “coming of[f] abrasive when he talks to people,” which Plaintiff thought was “not behavior of a supervisor.” ECF No. 100-24.
4. April 2018 Email to Trodglen
On April 26, 2018, Plaintiff complained in an email to Trodglen that Hahn included in the daily summary to the government customer a mistake that Plaintiff made with regard to some shipping documents. ECF Nos. 100-25; 100-7 at 192:9-193:2. Trodglen responded by explaining that the most important occurrence each day, “good or bad,” should be reported to the customer, ECF No. 100-25, and Plaintiff testified that he thought Trodglen's response to this complaint was “pretty fair,” ECF No. 100-7 at 196:17-19.
5. May 2018 Email to Trodglen
On May 6, 2018, Plaintiff emailed Trodglen to request a conference with Trodglen and Hahn, stating that “everytime [sic] [Hahn and I] speak it turns into an argument” and “I don't like the way I'm being treated.” ECF Nos. 100-26; 100-7 at 202:22-203:6. The following day, Plaintiff provided Trodglen with an incident report by email, in which he described an argument during which Hahn said that he was intimidated by Plaintiff's size and because Plaintiff was holding a grilling fork. ECF Nos. 100-27; 100-7 at 197:16-202:14. Plaintiff's email states that he and Hahn “resolved” and “mediated” the situation between themselves. Id. Plaintiff testified that his May 7, 2018 email accurately reflects his complaint regarding this incident. ECF No. 100-7 at 202:9-14.
Plaintiff testified that he never used SAIC's anonymous hotline. ECF No. 100-7 at 220:16221:2; 222:5-15.
D. Plaintiff's Resignation.
In June 2018, Trodglen reassigned Plaintiff to a stateside position that did not receive as much pay as an overseas position. ECF Nos. 100-7 at 64:14-68:16, 254:9-20; 100-16 at ¶ 17; 10017 at ¶ 17. Plaintiff received the email regarding the reassignment shortly before he was to leave Qatar for a trip home, and he ended up leaving or throwing away some of his belongings, as he was not given sufficient time to transfer all of his belongings before he left. Id. Plaintiff was told that the reassignment was a result of the government customer complaining about Plaintiff, but Plaintiff had been unaware of any complaints from the customer. Id.
On August 2, 2018, Plaintiff resigned from SAIC. ECF Nos. 100-28; 100-7 at 268:11-23; 100-11 at ¶ 3. Plaintiff had already accepted employment with another contractor, Bravura, on July 27, 2018, prior to his resignation from SAIC. ECF No. 100-29.
In response to Requests for Admission, Plaintiff admitted that, between the time that Hahn became Theater Lead and when Plaintiff resigned in 2018, SAIC did not demote him or reduce or eliminate any of his employee benefits. ECF Nos. 100-11 at ¶¶ 26, 27; 100-13 at RTA #27.
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. 28 at ¶ 32. 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 unprofessional toward him. See ECF No. 100-1 at 32-33. 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. 102 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. 100-1 at 21-25. After careful review of the evidence submitted by the parties, the undersigned concludes that Plaintiff has failed to establish the second element of 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. 102 at 5. However, it is undisputed that Plaintiff did not apply for the Theater Lead position. At his deposition, Plaintiff testified that, from the time Robertson left and the time Hahn became Theater Lead, he did not have any conversations with Trodglen about who would become Theater Lead. ECF No. 100-7 at 100:11-17. He also testified that there were no job postings for the Theater Lead position, Id. at 100:18-20, and he did not apply for the Theater Lead role, Id. at 101:10-14.
In his Response, Plaintiff asserts that in a “government contract situation, . . . [n]o one ‘applies' to a contract or a particular job in the traditional sense.” ECF No. 102 at 5. He further argues that when he testified that he did not apply to the Theater Lead position, it was because people do not apply for spots, as they are assigned by the Project Manager. Id. at 5-6. Importantly, however, Plaintiff does not submit any evidence in support of these arguments. Accordingly, 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, 975 F.Supp.2d at 558. To the contrary, Plaintiff admitted that between the time that Hahn became Theater Lead and when Plaintiff resigned in 2018, SAIC did not demote him or reduce or eliminate any of his employee benefits. ECF Nos. 100-11 at ¶¶ 26, 27; 100-13 at RTA #27. The evidence also shows that Plaintiff received three pay raises after Hahn became Theater Lead, including a 11.84% pay increase and promotion with job code change that Plaintiff received in December 2016 after he completed the Penn Foster course. ECF Nos. 100-6 at Resp. Nos. 7, 9; 100-7 at 150:6-10, 152:4-10; 100-10 at Ex. 2; 100-11 at ¶¶ 25, 29, 30, 31; 100-13 at RTA #29. Thus, Plaintiff has 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 2. 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. 100-1 at 25-26. There is evidence in the record to support this reason. See, e.g., ECF Nos. 100-4, Ex. 1 at 50:5-51:18, 68:2-6, 117:3-119:11; 100-6 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. 102 at 6. However, there is no evidence that the Penn Foster course was a requirement for the Theater Lead position. Moreover, Plaintiff testified that he enrolled in the Penn Foster course on July 22, 2016, id. at 134:10-135:6, almost three weeks after Hahn became Theater Lead, ECF No. 100-6 at Resp. No. 9. He further testified that he completed the Penn Foster course in December 2016, ECF Nos. 100-7 at 143:5-144:2; 100-14, almost six months after Robertson left and Hahn became Theater Lead, ECF No. 100-6 at Resp. No. 9. Thus, Plaintiff's assertions regarding the Penn Foster course are insufficient to establish pretext.
Plaintiff further argues that, contrary to SAIC's asserted reason, Hahn had not served as the “Theater Lead” for the Marine MRAP and, therefore, did not have more experience than Plaintiff, as the tasks Hahn performed were merely site lead tasks. ECF No. 102 at 6. Thus, Plaintiff concludes that he “was far more qualified” to work as Theater Lead than Hahn. Id. The record evidence, viewed in the light most favorable to Plaintiff, does not support this argument.
First, the evidence does not support Plaintiff's contention that SAIC “engaged in a big fat lie” about Hahn's previous experience. See ECF No. 102 at 6. Plaintiff points to Hahn's testimony that he had not been a “Theater Lead” before his transfer in July 2016, which Plaintiff argues contradicts Trodglen's testimony that Hahn had prior Theater Lead experience. Id. He also argues, without providing any evidentiary support, that Hahn had previously performed only site lead tasks, not Theater Lead tasks. Id. However, the undisputed evidence shows that the “Theater Lead” position existed only in the Air Force program, while the site leads in the Marine Corps and Army programs carried out the same duties as the Air Force Theater Lead. Trodglen testified that in the Marine Corps MRAP program, the role of site lead was “dual-headed,” such that the site lead in the Marine Corps program was carrying out the same responsibilities as the Theater Lead in the Air Force program, “so their roles intermingled.” ECF No. 100-4, Ex. 1 at 26:21-29:21; ECF No. 102-1 at 21:15-22. However, under the Air Force contract, the customer required SAIC to have someone in Qatar, referred to as “Theater Lead,” in addition to site leads in each location. Id.
Trodglen also testified that the Army MRAP program was set up the same way as the Marine Corps MRAP program, with a “dual-headed” site lead. ECF No. 100-4. Ex. 1 at 27:1-28:22; ECF No. 102-1 at 21:15-22.
Moreover, Plaintiff does not present evidence to support his conclusory argument that “was far more qualified” to work as Theater Lead than Hahn. ECF No. 102 at 6. Notably, Plaintiff testified that he did not know what Hahn's qualifications were. ECF No. 100-7 at 127:18-129:12. Moreover, the evidence before the Court indicates that, compared to Hahn, Plaintiff had fewer years of experience, less seniority, no actual experience serving as a theater lead, and no prior working relationship with the government client's representative. See id.; ECF Nos. 100-4, Ex. 1 at 118:7-119:22; 100-8; 100-14
Plaintiff's perception of what the qualifications for Theater Lead should have been, and his conclusory self-assessment that he was more qualified as Hahn is 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.”).
Plaintiff 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).
Finally, 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. To the contrary, Plaintiff testified that he would not have necessarily become Theater Lead because several of his coworkers were also qualified for the Theater Lead role and could have become Theater Lead instead of Plaintiff. ECF No. 100-7 at 123:15-124:24; see also id. at 121:10-15, 122:5-8.
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. 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 burden shifting 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 more than one supervisor about misconduct.” ECF No. 102 at 7 (citing ECF No. 102-2 at 103:3-22, 115:9-116:9). He maintains that his conduct was sufficient to rise to the level of a complaint constituting protected activity. Id. at 7-8 (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 SAIC 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. 102 at 8. 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. There is no evidence that he discussed race during any of his discussions with Trodglen regarding the Theater Lead position or Hahn's placement in that position. To the contrary, Plaintiff testified that he never told Trodglen that he thought it was racially discriminatory that Hahn got the position. See ECF No. 100-7 at 116:15-20. Moreover, although there is evidence that Plaintiff complained about Hahn five times between December 2016 and May 2018, there is no evidence that Plaintiff raised the issue of race or discrimination in any of his complaints. See supra, Background § C. Plaintiff also testified that he does not recall anyone saying anything about race during the March 2017 call with HR, ECF No. 100-7 at 236:21-237:9, and he confirmed that Saari's notes from that call- which do not document any complaints about race-accurately captured what he said on the call, id. at 243:5-244:18.
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 v. Home Sales Co., C. A. No. RDB 09-1109, 2011 WL 826347, at *5 (D. Md. Mar. 7, 2011) (finding letter sent 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] was being discriminated against on the basis of race”); see also Hemphill, 975 F.Supp.2d at 562 (finding that an email containing allegations of unfair treatment; being spoken to in an unprofessional, disrespectful, and degrading manner; and being openly embarrassed and humiliated without mentioning discriminatory treatment based on race or sex could not be classified as protected activity under Title VII). 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.” White, 548 U.S. at 68 (citation omitted).
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. 102 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. Plaintiff testified that he never had any conversations with Trodglen about the Theater Lead position until after Hahn became Theater Lead, such that those conversations could not have been the basis for the alleged adverse decision not to make Plaintiff Theater Lead. See ECF Nos. 100-7 at 100:11-101:14; 100-11 at ¶ 13. 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, SAIC made Plaintiff's work life so “hostile” that he was forced to resign. ECF No. 102 at 9. He cites his testimony that he left SAIC's employ because “he was being unjustly micro-managed, nitpicked and criticized.” Id. (citing ECF No. 102-2 at 262, 267). He also contends that “[i]t was not until he raised his complaints of discrimination that Mr. Trodglen would ‘badger' him and he just ‘couldn't be there 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, as the testimony cited by Plaintiff refers to Hahn's conduct.
The evidence offered by Plaintiff does not 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'lPaper 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).
In support of his argument, Plaintiff cites his testimony that Hahn would sometimes stay at the worksite past 4:00 p.m., which delayed Plaintiff's commute home because they shared a vehicle, and that Hahn required Plaintiff to touch Remote Weapons Systems (RWS) equipment that only the government was supposed to touch, which Plaintiff speculates could have negatively affected him if he got in trouble for doing so. See ECF No. 102 at 9 (citing 102-2 at 262, 276). It is not clear from the record that this conduct was causally connected to Plaintiff's complaints, as Plaintiff testified that these incidents occurred both before and after his complaints. See ECF No. 100-7 at 259:1-4, 266:9-4, 267:22-268:7. 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”); Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994) (dissatisfaction with work assignments, perceived unfair criticism and difficult and unpleasant working conditions are not so intolerable as to compel a reasonable person to resign). Although the conditions Plaintiff describes may have been unpleasant, there is no evidence that Plaintiff suffered any harm from these incidents, and they 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 his reassignment to a stateside position in June 2018. See ECF No. 100-1 at 37-38. In his Response, Plaintiff does not make any arguments that his reassignment was retaliatory, nor does he provide any arguments to rebut Defendant's proffered legitimate, non-retaliatory reason for the reassignment. See ECF No. 102. Accordingly, to the extent Plaintiff sought to base his retaliation claim on the reassignment, the undersigned finds that Plaintiff has abandoned this claim and failed to carry his burden of showing that but for retaliation for any complaints, Plaintiff would not have been reassigned. 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 recommends that 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 Motion for Summary Judgment, ECF No. 100, 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).