Opinion
C. A. 3:20-2482-JMC-SVH
03-21-2022
Myron Hubbard, Plaintiff, v. South Carolina Department of Mental Health, Defendant.
REPORT AND RECOMMENDATION AND ORDER
Shiva V. Hodges, United States Magistrate Judge
Myron Hubbard (“Plaintiff”), proceeding pro se, originally filed this case in the Court of Common Pleas for Richland County, South Carolina (“state court”) alleging employment discrimination and retaliation in violation of Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq. (“Title VI”) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”). [See ECF No. 9-1 at 5]. South Carolina Department of Mental Health (“Defendant” or “SCDMH”), Plaintiff's former employer, removed the case from state court on June 30, 2020. [ECF No. 1].
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), this case was referred to the undersigned for all pretrial proceedings. This matter comes before the court on Defendant's motion for summary judgment. [ECF No. 69]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately Defendant's motion. [ECF No. 71]. The motion has been fully briefed [ECF Nos. 73, 74, 77] and is ripe for disposition. Also pending before the court is Plaintiff's second motion to amend. [ECF No. 68, see also ECF No. 47].
Having carefully considered the parties' submissions and the record in this case, the undersigned denies Plaintiff's motion to amend on the ground of futility and for the reasons set forth by the court previously [see ECF No. 56] and recommends the district judge grant Defendant's motion.
Plaintiff argues that the court should grant his motion to amend because “[n]ew facts have emerged, since the filing of the initial complaint.” [ECF No. 68 at 2]. However, Plaintiff does not identify the facts he is referencing and review of his proposed complaint and attached documents [ECF Nos. 68-1, 68-2] do not reveal relevant, additional facts or evidence not already before the court.
I. Factual and Procedural Background
Prior to being employed by Defendant, Plaintiff was employed by the Missouri Department of Mental Health (“MDMH”). Plaintiff has unsuccessfully filed multiple employment discrimination claims against MDMH in federal courts in Missouri. See, e.g., Hubbard v. Missouri Dep't of Mental Health, C/A No. 2:18-04201-NKL, 2018 WL 6683023, at *1 (W.D. Mo. Dec. 19, 2018) (summarizing Plaintiff's litigation history against MDMH).
The court takes judicial notice of the records in Plaintiff's civil cases and has previously reviewed his litigation history against MDMH. [See, e.g., ECF No. 56 at 3 n.1]. Courts “may properly take judicial notice of matters of public record.” Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). “We note that the most frequent use of judicial notice . . . is in noticing the content of court records.” Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (internal quotations and citation omitted).
Thereafter, Plaintiff was employed by Defendant as a part-time temporary registered nurse at the G. Werber Bryan Psychiatric Hospital (“Psychiatric Hospital”) from March 2, 2015, until July 23, 2020, when Plaintiff notified Defendant of his resignation. [ECF No. 69-1, ECF No. 69-2]. As a temporary employee, Plaintiff served one-year terms and completed annual applications for Defendant. [ECF No. 69-26 at 33:15-34:8]. During Plaintiff's employment, he did not have a supervisory role, but had responsibilities as a charge and medication nurse. Id. at 26:8-23. A charge nurse is responsible for “everything that goes on in the unit and a med nurse is only responsible for passing out meds.” Id.
In his resignation letter, Plaintiff alleged he was constructively discharged and previously has sought, in this case, to assert the same. [ECF No. 69-2, see also ECF No. 56]. In this circuit, to show constructive discharge, a plaintiff must allege that racial bias motivated the employer's deliberate actions and that those actions resulted in objectively-intolerable working conditions. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 187 (4th Cir. 2004) (analyzing constructive discharge claim brought pursuant to 42 U.S.C. § 1981 and Title VII). On March 9, 2021, the court denied Plaintiff's motion to amend, which sought in part to assert a constructive discharge claim, finding that “[a]lthough Plaintiff alleges offensive, unfair, and unpleasant treatment from certain coworkers, there is no indication this environment was intentionally created by SCDMH [or] someone acting on its behalf ‘based on [Plaintiff's] race' or that the limited number of incidents described created an environment that was objectively intolerable.” [ECF No. 56 at 16-17 (citations omitted)].
During his employment with Defendant, Plaintiff submitted various complaints alleging insubordination and code-of-conduct violations by coworkers. On April 29, 2015, Plaintiff submitted a written statement alleging a coworker violated Defendant's code-of-conduct policy by engaging in “disruptive behavior . . . verbal outbursts, profanity, disrespect and insubordination.” [ECF No. 69-8]. On October 15, 2016, Plaintiff emailed his nurse manager a complaint alleging insubordination by a coworker, in which he alleged the employee was “asked to prepare Pod 2 and he refused to do so in front of other staff and patients.” [ECF No. 69-9].
During this period, on December 2, 2015, Defendant completed a Missouri Department of Social Services employment verification form, providing that Plaintiff earned $30.00 hourly and $5,200.17 monthly. [ECF No. 69-21]. Plaintiff disputes the accuracy of the information provided and argues Defendant “created the adverse employment act during Mr. Hubbard discrimination filing by performing duties for the [MDMH] attorney's office by falsifying his earnings, falsifying he had a salary, providing false evidence, to play the role as accomplice to get his child support increased to an unjust amount . . . .” [ECF No. 9-1 ¶ 31(d)].
On April 20, 2017, Plaintiff emailed a complaint to his nurse manager alleging insubordination by a coworker, in which he alleged the employee “displayed disrespect, rudeness and insubordination” by refusing to give medication dosage despite being told to do so. [ECF No. 69-10]. On October 21, 2017, Plaintiff emailed a complaint to his nurse manager stating in full as follows: “Please talk to Bridget Entziminger RN [(“Entziminger”)] who comes to work creating a hostile work environment with behavior that include[s] disrespect, yelling and profanity.” [ECF No. 69-11].
Plaintiff argues that during this time, on December 9, 2018, he was denied HIV prophylaxis following exposure and argues that another black male, Sharmell Johnson, was given HIV prophylaxis following exposure even though the patient tested negative. [ECF No. 69-24, see also ECF No. 9-1 at 27 (report of injury)]. Plaintiff testified that he believed he was denied the treatment because he was participating in protected activity in Missouri. [ECF No. 69-26 at 73:6-21].
On March 10, 2019, Plaintiff emailed his nurse manager a complaint alleging a coworker was insubordinate and violated Defendant's code of conduct. [ECF No. 69-12]. Specifically, Plaintiff alleged that a coworker told him to “take your dumb ass own[sic].” Id. On March 11, 2019, this employee submitted a statement and admitted to using profanity and received a verbal warning. [ECF No. 69-13].
On April 14, 2019, Plaintiff emailed his nurse manager a complaint alleging harassment and hostile work environment. [ECF No. 69-14]. Specifically, Plaintiff alleged that another nurse, Sheldon Foster (“Foster”) called him “Linda” and said “old mother fuck a Hubbard” in front of several other employees. Id. Plaintiff also stated as follows:
It is to be noted, I continue to experience a hostile work environment with staff using the word Nigger in the workplace. I have counseled staff about not using that word or profanity in the workplace and Courtney Good has also reported hearing Nigger being used by a female nurse.Id.
Plaintiff identifies only Entziminger as a specific employee that used a racial slur. [See ECF No. 9-1 ¶ 14]. However, Plaintiff has failed to submit any evidence in support of this allegation or to provide further details as to when or where or in what context this alleged instance occurred.
In response to Plaintiff's complaint, the next day, Donna McLane (“McLane”), Director of Nursing at the Psychiatric Hospital, emailed Plaintiff the employee harassment form and requested that he complete it “as soon as possible” and return the form to the Employee Relations Department. [ECF No. 69-15]. Plaintiff admitted that he did not return the form as requested. [ECF No. 69:26 at 96:9-97:5]. Specifically, Plaintiff testified that he did not recall receiving the email because, “99.9% of the emails sent to my emails I did not read because I wasn't there.” Id. Plaintiff testified further that “this one got by me.” Id. When questioned about whether he followed up with either McLane or his nurse manager regarding his complaint, Plaintiff testified that he failed to do so. Id. at 100:15-101:19.
Although Plaintiff argues he was following instructions by submitting an email, as opposed to the referenced form, and argues he submitted all the information requested in the form in his email, rendering submission of the form unnecessary, Plaintiff does not dispute he failed to submit the form or follow up with either McLane or his nurse manager regarding his complaint. [See ECF No. 73 at 4-6].
Although Plaintiff did not complete the employee harassment form, Defendant investigated the allegations of his complaint, and two employees submitted statements regarding the alleged incident, confirming words were exchanged between Plaintiff and Foster, but not indicating that Foster, or anyone else, employed racial slurs at any time. [ECF No. 69-16].
On May 5, 2019, Plaintiff texted his nurse manager regarding unnamed employees using profanity and the word “nigger.” [ECF No. 69-17]. In response, Plaintiff was informed that his complaints would be addressed at the staff meeting three days later. Id. On May 8, 2019, Nurse Manager Nichole Broaster (“Broaster”) presided over the monthly staff meeting and among other topics, Defendant's code of conduct policy was an item on the meeting agenda to be addressed. [ECF No. 69-18].
Plaintiff testified he was aware of meetings held by Broaster, but did not recall if he went to the specific meeting addressing his complaint. [ECF No. 69-26 at 92:15-23]. Defendant's attendance records for the meeting reflect Plaintiff did not attend the meeting. [ECF No. 69-19].
On June 21, 2019, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) while still employed with Defendant. [ECF No. 69-20, ECF No. 69-26 at 65:13-24]. Plaintiff submitted a 28-page affidavit with allegations of discrimination and retaliation against both Defendant and MDMH. [ECF No. 69-20]. The affidavit contains many of the same allegations that Plaintiff makes in the instant case. [See ECF Nos. 9-1, 69-20].
In addition to the allegations already reviewed above, Plaintiff alleges that Defendant also discriminated against him by engaging in malpractice by not treating him concerning a workplace injury to his knee that occurred on February 27, 2016, and by committing “Workman's Comp fraud by not forwarding report of injuries . . . then lying and denying the injury occurred, ” including a back injury alleged to have occurred on March 10, 2018. [ECF No. 9-1 ¶¶ 38-39, see also ECF No. 73 at 7-8, ECF No. 9-1 at 28-31, ECF No. 69-26 at 78:13-21, 82:4-24, ECF No. 69-23 (report of injury as to March 10, 2018 injury, stamped received by the workers' compensation commission on December 27, 2019)].
Plaintiff additionally alleges Defendant created a hostile work environment by posting gorilla posters in the workplace. [See, e.g., ECF No. 9-1 ¶ 14]. However, Plaintiff has offered no evidence in support of this allegation beyond two pictures, the contents of which cannot be discerned. [See ECF No. 9-1 at 17-18]. Additionally, Plaintiff has not revisited this allegation in briefing.
Regarding his injuries, Plaintiff received letters dated March 16, 2020, from Defendant's insurance carrier, stating, “[i]n the opinion of the State Accident Fund, your claim is denied for failure to file a claim / time barred by the statute of limitations. Therefore, this claim is denied.” [ECF No. 69-22]. Plaintiff received additional letters dated March 18, 2020, from the Workers' Compensation Commission regarding the two injuries, informing him that the “carrier/employer . . . denies you sustained an injury that qualifies you for Workers' Compensation benefits.” [ECF No. 9-1 at 33-34].
Plaintiff sent an email on April 19, 2020, to Broaster alleging that Defendant had engaged in unfair discriminatory treatment and workers' compensation fraud. [ECF No. 69-24].
The EEOC issued Plaintiff a Dismissal and Notice of Rights on January 31, 2020. [ECF No. 69-25]. Subsequently, Plaintiff filed this action alleging race discrimination and retaliation. Plaintiff testified Defendant's alleged actions were discriminatory and retaliatory because he is a member of a protected class and because all alleged acts occurred after and during discrimination lawsuits and after and during EEOC complaints. [ECF No. 69-26 at 57:3-13]. Plaintiff testified Defendant could have been made aware of his litigation with MDMH by doing an internet search of his name. Id. at 53:21-54:16.
Plaintiff, in briefing, references his complaint in which he alleges, in full, as follows:
The [SCDMH] employee, albeit reportedly now deceased and frankly suspiciously deceased since she expired at a premature age and would openly talk about the government unlawful acts, when she reported [SCDMH] were aware of Mr. Hubbard “discrimination law suit with the [MDMH], ” “your harassment was because of it” . . . “going to make an example of and taught a lesson for filing a discrimination lawsuit” . . . .[ECF No. 73 at 19 (citing ECF No. 9-1 ¶ 30)]. However, Plaintiff has failed to provide any further details as to this allegation or submit any evidence in support.
II. Discussion
A. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
1. Discrimination
Absent evidence of direct discrimination, Plaintiff may use the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove his claims of race discrimination. Plaintiff must show: (1) he is a member of a protected class; (2) he was performing his duties in a satisfactory manner; (3) he was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of unlawful discrimination, such as different treatment for similarly-situated individuals outside the protected class. Jones v. Conste lation Energy Projects & Servs. Grp., Inc., 629 Fed.Appx. 466, 468 (4th Cir. 2015).
The court utilizes the same legal standard to analyze discrimination claims under Title VI and Title VII. See Middlebrooks v. Univ. of Md., No. 97-2473, 1999 WL 7860, at *4 (4th Cir. Jan. 11, 1999) (stating that Title VI claims “are appropriately analyzed under the Title VII proof scheme, first articulated in McDonne l Douglas Corp. v. Green”).
If Plaintiff establishes a prima facie case, the burden shifts to Defendant to produce a legitimate, nondiscriminatory reason for its decision. Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 557 (D.S.C. 2013). This is merely a burden of production, not of persuasion. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Once Defendant meets its burden by producing a legitimate, nondiscriminatory reason, the sole remaining issue is “discrimination vel non.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). In other words, the burden shifts back to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced by Defendant is not the true reason, but was pretext for discrimination. Id. Throughout the burden-shifting scheme set forth in McDonnel Douglas, the ultimate burden of proving Defendant intentionally discriminated against Plaintiff remains at all times with Plaintiff.
Here, Plaintiff has alleged Defendant treated him unfairly, including that Defendant falsified his income level, resulting in Plaintiff having to pay excessive child support, and failed to properly treat injuries he sustained during the course of his employment or submit the proper paperwork for him to receive worker's compensation. However, none of these allegations, even if substantiated, indicate unlawful discrimination based on Plaintiff's race. Plaintiff has also failed to identify a single similarly-situated employee outside his protected class who was treated differently.
Plaintiff identifies one employee, another black male, who he argues was provided HIV prophylaxis while Plaintiff allegedly was not. However, Plaintiff has provided almost no details as to either alleged incidents, and the court cannot discern how these allegations would give rise to an inference of unlawful discrimination.
Plaintiff also asserts a claim for hostile work environment. To establish this claim, a plaintiff must show: (1) he experienced unwelcome harassment; (2) the harassment was based on race; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer. Evans v. Int'l Paper Co., 936 F.3d 183, 192 (4th Cir. 2019) (citing Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003)).
Specifically concerning hostile work environment claims based on alleged coworker harassment, the Fourth Circuit has held as follows:
Where an employee has been harassed by a coworker, the employer may be liable in negligence [under the fourth element] if it knew or should have known about the harassment and failed to take effective action to stop it. Once the employer has notice,
then it must respond with remedial action reasonably calculated to end the harassment . . . . But Title VII requires only that the employer take steps reasonably likely to stop the harassment. The standard in no way requires an employer to dispense with fair procedures for those accused or to discharge every alleged harasser. And a good faith investigation of alleged harassment may satisfy the . . . standard, even if the investigation turns up no evidence of harassment. Such an employer may avoid liability even if a jury later concludes that in fact harassment occurred.E.E.O.C. v. Xerxes Corp., 639 F.3d 658, 669, 674-75 (4th Cir. 2011) (citations omitted.
Here, Plaintiff has not shown any harassment he allegedly received from coworkers was sufficiently severe or pervasive or that there is any basis for imposing liability on Defendant. Plaintiff has failed to identify specifically who said what or when, relying on general complaints that unknown coworkers at unknown times employed racial slurs. Notwithstanding, once notified of Plaintiff's complaint regarding the use of the word “nigger” by coworkers, Defendant immediately responded to Plaintiff and requested he complete the employee harassment form and return it to the Employee Relations Department, and investigated, even where Plaintiff failed to take part in Defendant's administrative process. In addition, when Plaintiff notified nurse manager Broaster by text message of these general allegations, she informed Plaintiff that she would address his concerns at the staff meeting a few days later. Shortly after the staff meeting, Plaintiff filed his Charge of Discrimination. Plaintiff testified he did not follow up on his complaint with Broaster and he did not provide any evidence in the record to show that the conduct was ongoing or that Defendant failed to take steps to address the matter.
Many of the allegations made by Plaintiff concerning coworker harassment are not alleged to be based on Plaintiff's race, including allegations of “disrespectful behavior, disruptive behavior, violating code of conduct, verbal outbursts, profanity, and insubordination.” [ECF No. 9-1 ¶ 28].
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's discrimination claim.
2. Retaliation
Title VII prohibits an employer from retaliating against an employee because the employee has “opposed any practice made an unlawful employment practice” under Title VII or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. See 42 U.S.C. § 2000e-3(a). To make a prima facie claim of retaliation, a plaintiff must show: (1) that he engaged in protected activity, (2) that the employer took a materially adverse action against him, and (3) there is a causal connection between the protected activity and the adverse action. See Evans, 936 F.3d at 195 (citing Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 61-68 (2006)). The Fourth Circuit has stated “[a] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse employment action against an employee shortly after learning of the protected activity.” Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004) (citations omitted). Title VI and Title VII claims of retaliation are evaluated under the same standard. See Peters v. Jenney, 327 F.3d 307, 320- 21 (4th Cir. 2003).
Plaintiff argues he engaged in protected activity by filing multiple discrimination lawsuits in Missouri. However, there is no evidence in the record that Defendant was aware of Plaintiff's alleged protected activities; thus, Plaintiff's claim for retaliation must fail. A plaintiff cannot be retaliated against for actions taken that were not known to his employer.
Plaintiff additionally argues that Defendant retaliated against him for “complaining, reporting and communicating with his supervisors and managers about hostile work environment, employment discrimination and harassment, ” including filing his EEOC complaint. [ECF No. 73 at 19-23]. It appears Plaintiff argues the following actions may have been taken by Defendant in retaliation for Plaintiff's engaging in protected activities: (1) providing false information regarding his income to MDMH, (2) denying Plaintiff “life saving prophylaxis treatment, ” and (3) “committing the criminal act of Workman's Comp Fraud” by not forwarding the relevant reports of injuries and denying that Plaintiff sustained qualifying injuries. [See ECF No. 73 at 23-25].
As to (1) and (2), these alleged actions occurred in December 2015 and December 2018, respectively, and therefore could not have been taken in retaliation against Plaintiff for his race-based harassment complaints, the earliest of which occurred on April 4, 2019. As to (3), the record reveals that Defendant's insurance carrier, not Defendant, made the decision that his claims for workman's compensation were time barred by the statute of limitations. Although Plaintiff may dispute whether his claims were timely [see ECF No. 73 at 10-11], there is no indication in the record that Plaintiff was denied workman's compensation by Defendant for any reason, including in retaliation for Plaintiff having engaged in any protected act. To the extent Plaintiff argues Defendant retaliated against him by not timely forwarding the proper paperwork to the worker's compensation commission, his argument fails in that Plaintiff was injured on February 27, 2016, and March 10, 2018, significantly prior to any alleged protective act he took. In other words, any delay in forwarding any paperwork had already been ongoing for over a year, as to the latest injury, prior to the relevant time period.
Plaintiff also appears to argue that Defendant took adverse action against him by failing to assign any other registered nurse outside his protected class to the COVID Quarantine Unit. [See ECF No. 73 at 23-25]. However, Plaintiff has failed to submit any evidence in support of his allegation.
In sum, Plaintiff has failed to identify any “adverse employment action” taken against him after April 4, 2019-the first time the record shows that Plaintiff complained of race-based harassment-nor has he indicated any causal connection. Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiffs claim for retaliation.
Given the recommendation above, it is unnecessary to address the parties' arguments as to whether Plaintiffs retaliation claim is timely. [See, e.g., ECF No. 69 at 10-11, ECF No. 73 at 12-18].
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned denies Plaintiffs motion to amend [ECF No. 68] and recommends the district judge grant Defendant's motion for summary judgment. [ECF No. 69].
IT IS SO ORDERED AND RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).