Opinion
Civil Action 2:21-03398-RMG-MGB
09-19-2022
Lance Lowell Lewis, Plaintiff, v. Boeing, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff filed this action alleging discrimination, hostile work environment, and retaliation under the Age Discrimination in Employment Act of 1967 (“ADEA”). This matter is before the Court upon Defendant's Motion to Dismiss Plaintiff's Amended Complaint (Dkt. No. 31). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local 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. For the reasons set forth below, the undersigned recommends that Defendant's Motion be GRANTED.
BACKGROUND
Plaintiff, proceeding pro se, filed a Complaint against Defendant on October 18, 2021, alleging age discrimination in violation of Title VII and the ADEA. (Dkt. No. 1.) Plaintiff attached a Notice of Right to Sue letter dated July 20, 2021 to this Complaint. (Id.)
Plaintiff's initial complaint describes his claim as “Materially adverse retaliation action of unpaid suspension time beginning Sept. 2 until whatever date an investigation is completed” and references a document he sent to the Equal Employment Opportunity Commission (the “EEOC”) on October 18, 2021. (Id.) In this document, Plaintiff explains that he “is lodging a new written formal EEOC ethics complaint on Boeing” related to his original EEOC Charge (No. 415-2021-01047). (Id. at 9.) He then describes “more harassment and discrimination about Cameron Lee on the day of July 30.” (Id. at 10.) Specifically, Plaintiff recounts that Lee accused him of “violating the production process.” (Id.) He also references an incident on September 2, 2021 where he was accused of violating process. (Id. at 11-12.) Plaintiff explains that he was suspended without pay following the September 2 incident. (Id.) Plaintiff continues on to say that Lee accused him of and reported him for these process violations. (Id. at 12-14.) Plaintiff appears to claim that Lee's reports and accusations were part of a pattern of harassment and discrimination that he reported to Defendant “time and time again.” (Id. at 17.) He claims Defendant did not investigate his complaints because of his age, and that his suspension was part of “orchestrated retaliation.” (Id.)
On December 23, 2021, Bonnie Travaglio Hunt appeared as counsel for Plaintiff. (Dkt. No. 13.) On January 5, 2022, Plaintiff filed a second EEOC Charge alleging that he suffered a hostile work environment after filing his first EEOC Charge, and that he was fired in retaliation for his complaints. (Dkt. No. 22-1 at 5-6.) On March 29, 2022, Defendant filed a Motion to Dismiss Plaintiff's claims in full. (Dkt. No. 16.) On April 18, 2022, Plaintiff filed a response to Defendant's Motion to Dismiss along with a Motion to Amend his Complaint. (Dkt. Nos. 22, 23.) The Court granted Plaintiff's Motion to Amend and mooted Defendant's Motion to Dismiss on May 12, 2022. (Dkt. Nos. 27, 28.) Plaintiff filed an Amended Complaint on that same day. (Dkt. No. 29.)
Plaintiff's Amended Complaint alleges that he is a Caucasian male over the age of forty. (Dkt. No. 29 at 4.) He began working for Defendant in February 2012 as a contractor.
(Id.) He was considered an exemplary worker and hired as a full-time Manufacturing Technician in the Composite Fabrication department in September 2012. (Id. at 4-5.) According to Plaintiff, he was “issued policies and procedures from the Defendant that set forth the requirements of his position, the procedures for employment and the policies that he was required to follow as an employee of the Defendant,” including a progressive discipline policy. (Id. at 5.) Plaintiff claims that he was recognized for his good work throughout his employment with Defendant and that he was nominated by management for a spot on the Foreign Object Debris Team in 2019. (Id.) He became a temporary Foreign Object Tool and Compliance Assessor on December 16, 2020. (Id.) On January 29, 2021, Plaintiff took a Manufacturing Technician position in the Interiors Responsibility Center (the “IRC”). (Id.) In this position, Plaintiff's manager was Cameron Lee. (Id. at 6.)
Plaintiff alleges that Lee told him he “needed to become quicker” on February 26, 2021. (Id.) According to Plaintiff, he responded that he was new to the program and was still learning. (Id.) Plaintiff claims that he reported a problem with his potting gun applicator on March 12, 2021. (Id.) He states that this problem further slowed his performance. (Id.) On March 18, 2021, Lee again informed Plaintiff that his work was too slow. (Id. at 7.) On March 19, 2021, Plaintiff alleges that two different “QA inspectors” told him that he did good work. (Id.)
On March 20, 2021, Plaintiff filed an internal complaint against Lee. (Id.) Plaintiff claims that his work environment became hostile after he filed this complaint. (Id.) More specifically, Plaintiff alleges that Lee “subjected Plaintiff to bullying, intimidation, degrading and humiliating behavior, and derogatory commentary.” (Id.) Plaintiff claims that Lee did not treat other, younger employees in the same manner. (Id.) Plaintiff again reported Lee to “management and Corporate Ethics.” (Id.)
On April 27, 2021, Plaintiff claims that Lee told him “not to use the dead blow hammer to hit inserts,” because “it was not in the process.” (Id.) Plaintiff responded that “there were numerous MTs that work in his area that have repeatedly used this process” and that he “did not realize that the use of the hammer violated the process considering all other MTs in his area were using the dead blow hammer.” (Id.) Plaintiff claims that Lee did not instruct any of Plaintiff's coworkers “not to use the dead blow hammer” and that Plaintiff “did not use the dead blow hammer again.” (Id.)
Plaintiff also claims that he had problems with the computer issued to him for his role in the IRC, but that Lee would not help him with these problems. (Id. at 6.) According to Plaintiff, he “stayed two hours past his normal shift attempting to fix his computer” on May 3, 2021, but could not resolve the problem. (Id. at 7-8.) Plaintiff allegedly told Lee that he had submitted a “trouble ticket” for his computer, to which Lee responded, “You are the only one having this problem and why is that?” (Id. at 8.) Plaintiff claims that Defendant “closed the ticket” relating to his computer without resolving the problem. (Id.) Plaintiff explains that he had the ticket reopened immediately, and that he reached out to a coworker, Nelson Akwari, about the problem. (Id.) Plaintiff claims that Akwari “immediately acted and had the Plaintiff receive assistance.” (Id.) Plaintiff states that his computer was exchanged on May 11, 2021 and he had no further issues. (Id.)
On May 20, 2021, Plaintiff received an email that said: “On 4/29 you failed to follow process and were using a dead blow hammer during the insert process, this has previously caused rework, defective work, and several panels to be scrapped.” (Id.) Plaintiff claims that “[t]he SME in the Plaintiff's area informed the Plaintiff that he did not believe that the Plaintiff's actions [caused] rework, defective work, or several panels to be scrapped.” (Id.) Accordingly, Plaintiff “filed a second complaint against Cameron Lee on May 22, 2021, which was in rebuttal to the May 20, 2021[] email.” (Id.)
On May 23, 2021, Plaintiff contacted the EEOC and “informed them that he was lodging a written formal EEOC ethics complaint” against Lee. (Id. at 9.) Plaintiff then filed a third internal complaint against Lee on June 10, 2021. (Id.) In this complaint, Plaintiff purportedly explained that:
Lee was harassing him, retaliating against him, and attempting to have him terminated. On June 10, 2021, the [P]laintiff had no work to do. The Plaintiff requested work from a co-worker and the backup Lead. There was no work, so the Plaintiff was performing other tasks. After lunch, Cameron Lee called the Plaintiff into his office and requested why the Plaintiff had not been working on a panel. The Plaintiff informed Lee that there was no work. The Plaintiff had requested work from 3 other people, and no one had any. Lee informed the Plaintiff that all employees must pull their weight. The Plaintiff again informed Lee that there was no work for him to do.(Id. at 9.) Plaintiff claims that he did not receive a response to his June 10, 2021 complaint until June 21, 2021. (Id.)
Plaintiff filed a formal charge of discrimination with the EEOC on July 16, 2021. (Id.) He claims that he “filed supplements with the EEOC on several occasions after this July 16, 2021[] charge” and that he wrote a formal letter to the EEOC on October 22, 2021, “stating that he was filing a new written formal charge.” (Id.) Plaintiff claims that he contacted the EEOC again on November 24, 2021 regarding his new written formal EEOC charge, but the EEOC “failed and refused to file an amended charge of discrimination.” (Id.) Thus, Plaintiff “filed a second charge of discrimination to cover all incidents from July 16, 2021, to his termination on November 9, 2021. (Id. at 10.)
Plaintiff's Amended Complaint brings claims of age discrimination, retaliation, and hostile work environment in violation of the ADEA. (Id. at 12-16.) Plaintiff seeks, inter alia, compensatory and punitive damages. (Id. at 16.)
On May 25, 2022, Defendant filed a renewed Motion to Dismiss seeking dismissal of Plaintiff's Amended Complaint. (Dkt. No. 31.) After requesting and receiving an extension of time to respond, Plaintiff filed a response in opposition to Defendant's Motion on June 21, 2022. (Dkt. No. 40.) Defendant filed a reply to Plaintiff's response on June 28, 2022. (Dkt. No. 43.) As such, the Motion before the Court has been fully briefed and is ripe for disposition.
LEGAL STANDARD
On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
For purposes of a motion to dismiss, the district court must “take all of the factual allegations in the complaint as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 Fed.Appx. 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). However, while the court must draw all reasonable inferences in favor of the plaintiff, it need not accept “legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298).
DISCUSSION
Defendant argues that the Court should dismiss Plaintiff's Amended Complaint because: (1) certain of Plaintiff's claims have not been administratively exhausted; (2) Plaintiff's claims are time-barred; and (3) Plaintiff has failed to allege facts sufficient to support his ADEA claims of discrimination, retaliation, and hostile work environment. (See generally Dkt. No. 31.) For the reasons set forth below, the undersigned recommends that Defendant's Motion to Dismiss be granted, and that Plaintiff's case be dismissed in full.
Because the undersigned recommends that Plaintiff's claims fail on their merits, the undersigned need not address Defendant's arguments relating to timeliness and exhaustion. However, in the event the District Judge disagrees with the undersigned's recommendations, the undersigned recommends that the Court deny Defendant's motion as to timeliness and exhaustion for the reasons set forth in the undersigned's Order granting Plaintiff's Motion to Amend. (Dkt. No. 27.)
At the outset, the undersigned notes that Plaintiff's Amended Complaint does not include a retaliation claim based upon his suspension and/or termination. (See generally Dkt. No. 29.) In fact, Plaintiff's Amended Complaint states that his retaliation claims relating to suspension and termination “are still pending before the EEOC and are not part of this action.” (Id. at 14.) Plaintiff reiterates this sentiment in his response to Defendant's Motion to Dismiss. (Dkt. No. 40 at 11-12.)
Nonetheless, Defendant correctly notes that “Plaintiff repeatedly relies upon and references his suspension and termination in his Amended Complaint.” (Dkt. No. 43 at 2.) As such, Defendant requests that “to the extent such references could be construed to assert a claim for retaliation related to Plaintiff's suspension or termination, Boeing seeks an order dismissing such claim and striking the references to suspension and termination.” (Dkt. No. 31 at 8-9.) In the interest of clarity and in light of Plaintiff's concession, the undersigned recommends that the Court grant Defendant's request, dismiss any retaliation claim based upon Plaintiff's suspension and/or termination gleaned from the Amended Complaint, and strike the references to suspension and termination throughout the Amended Complaint.
The undersigned limits the remaining discussion accordingly.
I. Age Discrimination
Defendant argues that the allegations in Plaintiff's Amended Complaint do not give rise to a plausible age discrimination claim under the ADEA. (Dkt. No. 31 at 13.) For the reasons set forth below, the undersigned agrees.
The ADEA prohibits employers from discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment because of that employee's age. Arthur v. Pet Dairy, 593 Fed. App'x 211, 216 (4th Cir. 2015). A plaintiff may establish an age discrimination claim under the ADEA through direct evidence of employment discrimination, or the plaintiff may proceed under the McDonnell Douglas burden-shifting framework, which begins with a prima facie case of employment discrimination. Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 n.8 (4th Cir. 2020), cert. denied, 141 S.Ct. 1376 (2021). While the plaintiff “need not plead a prima facie case of discrimination” at this stage of the proceedings, the elements of a prima facie case inform whether the plaintiff plausibly alleges an ADEA violation. Id. at 616 (quoting Swierkiewicz, 534 U.S. at 515).
The elements of a prima facie case of age discrimination include: (1) the plaintiff was a member of the protected class (i.e., at least 40 years of age); (2) the plaintiff suffered an adverse employment action; (3) at the time of the adverse employment action, the plaintiff was performing his job duties to his employer's legitimate expectations; and (4) the position remained open or the plaintiff was replaced by a substantially younger person. Ruff v. Target Stores, Inc., 226 Fed. App'x 294, 300-01 (4th Cir. 2007). Plaintiff's Amended Complaint falls far short of alleging these elements.
Though unclear, Plaintiff's Amended Complaint appears to allege that Lee discriminated against him on account of his age by telling him that he “needed to become quicker” on two occasions, telling Plaintiff not to use a certain kind of hammer, not helping Plaintiff fix his computer, and informing Plaintiff he needed to pull his weight. (Dkt. No. 29 at 4-14.) Plaintiff also alleges that he received an email instructing him that he “failed to follow process” when he “us[ed] a dead blow hammer during the insert process.” (Id. at 8.) None of these allegations can be construed as an adverse employment action.
An adverse employment action is one that “‘adversely affect[s] the terms, conditions, or benefits of the plaintiff's employment.'” Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (quoting James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004)). “Typical examples of adverse employment actions include ‘discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, [and] reduced opportunities for promotion.'” Cole v. Wake Cty. Bd. of Educ., 494 F.Supp.3d 338, 345 (E.D. N.C. 2020), aff'd, 834 Fed.Appx. 820 (4th Cir. 2021), cert. denied sub nom. Cole v. Wake Cty. BD. of ED., No. 20-1373, 2021 WL 2302100 (U.S. June 7, 2021) (quoting Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999)). The actions alleged by Plaintiff had no detrimental affect on the terms, conditions, or benefits of his employment. (See generally Dkt. No. 29.) Even when taken as true and considered in Plaintiff's favor, Plaintiff's allegations that he was critiqued and asked to follow process on a handful of occasions simply do not amount to the kind of adverse action necessary to sustain an age discrimination claim.
Even assuming that this conduct constitutes adverse action by Defendant, Plaintiff's Amended Complaint fails to set forth facts sufficient to support a causal connection between Plaintiff's age and Defendant's actions. Plaintiff's Amended Complaint does not allege that Lee (or anyone else employed by Defendant) ever commented on, or made implications about, his age. (See generally Dkt. No. 29.) Rather, Plaintiff summarily concludes that he was discriminated against on account of his age without providing an indicium of factual support. (Id. at 13.) Similarly, Plaintiff makes conclusory assertions that he was treated differently than younger employees but does not provide the Court with any specific instances of differential treatment. (Id.)
Thus, even taking all of Plaintiff's allegations as true and construing them in the light most favorable to him, Plaintiff's Amended Complaint does not allege facts that support a showing of age discrimination in violation of the ADEA. The undersigned therefore recommends that Defendant's Motion to Dismiss be granted with respect to this claim.
II. Retaliation
Defendant also argues that Plaintiff's retaliation claim should be dismissed because Plaintiff's Amended Complaint fails to set forth sufficient factual allegations. (Dkt. No. 31 at 17.) To establish a viable claim for retaliation under the ADEA, Plaintiff must provide factual allegations that suggest: (1) he engaged in protected conduct; (2) an adverse action was taken against him by his employer; and (3) there was a causal connection between the first two elements. Ullrich v. CEXEC, Inc., 709 Fed.Appx. 750, 753 (4th Cir. 2017) (referencing Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006) (en banc)). As with his discrimination claim, Plaintiff's retaliation claim fails because Plaintiff does not allege a sufficiently adverse action and provides no facts from which the Court could discern a causal connection. (See generally Dkt. No. 29.)
In support of his retaliation claim, Plaintiff states that he filed internal complaints against Lee on March 20, 2021, May 22, 2021, and June 10, 2021, and that he filed his first charge with the EEOC on July 16, 2021. (Id. at 7-9.) He claims that Lee began subjecting him to “bullying, intimidation, degrading and humiliating behavior, and derogatory commentary” after he filed his first internal complaint (Id.) However, Plaintiff provides no specific instances of such behavior. (See generally id.)
There is no dispute that Plaintiff engaged in protected activity. (See generally Dkt. No. 31.)
To the extent Plaintiff intends for Lee's instruction that Plaintiff should not use a certain kind of hammer, Lee not helping Plaintiff fix his computer, and Lee informing Plaintiff that he needed to pull his weight to be considered adverse actions in support of his retaliation claim, these acts are not sufficiently adverse. (Id. at 7-9.) The same is true of the email Plaintiff received on April 29 stating that he “failed to follow process” by “using a dead blow hammer during the insert process.” (Id. at 8.)
For purposes of a retaliation claim, an adverse action need not be employment-related; however, the action must be “‘materially adverse'-such that [it] ‘might have dissuaded a reasonable worker' from engaging in protected activity.” Strothers v. City of Laurel, 895 F.3d 317, 326-27 (4th Cir. 2018) (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). The actions alleged by Plaintiff do not meet this standard. See Tom v. Montgomery Cnty. Pub. Sch., No. CV 20-3386 PJM, 2021 WL 1720851, at *3 (D. Md. Apr. 30, 2021) (noting that a negative performance review or performance improvement plan does not constitute a materially adverse action for purposes of an ADEA retaliation claim); Tang v. E. Virginia Med. Sch., No. 2:20-CV-575 (RCY), 2022 WL 981942, at *9 (E.D. Va. Mar. 30, 2022) (“Plaintiff's negative performance evaluation does not constitute a materially adverse employment action. The same is true regarding [] written reprimands.”).
Further, Plaintiff's Amended Complaint does not provide factual allegations from which the undersigned can make a reasonable inference of causation. (See generally Dkt. No. 29.) Plaintiff does not allege that Lee knew of any of Plaintiff's complaints against him. (Id.) Similarly, Plaintiff's Amended Complaint does not state from whom he received the April 29 email. (Id.) As such, it is impossible for the Court to discern a causal connection between Plaintiff's protected activity and the alleged adverse actions.
Taking all of the factual allegations in Plaintiff's Amended Complaint as true and viewing the Amended Complaint in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to allege sufficient facts to demonstrate a “right to relief above the speculative level” with respect to his retaliation claim. Twombly, 550 U.S. at 555. Accordingly, the undersigned recommends that the Court dismiss this claim.
III. Hostile Work Environment
Finally, Defendant argues that Plaintiff's Amended Complaint fails to set forth a viable hostile work environment claim. (Dkt. No. 31 at 19.) To assert a claim for hostile environment under the ADEA, Plaintiff needs to show: “(1) that [he] is at least 40 years old; (2) that [he] was harassed based on [his] age; (3) that the harassment had the effect of unreasonably interfering with [his] work, creating an environment that was both objectively and subjectively hostile or offensive; and (4) that [he] has some basis for imputing liability to [his] employer.” Burns v. AAF-McQuay, Inc., 166 F.3d 292, 294 (4th Cir. 1999) (citations omitted). While “[t]he ADEA does not expressly prohibit the creation of a hostile work environment,” courts have assumed “that a hostile work environment claim is generally cognizable under the ADEA.” Baqir v. Principi, 434 F.3d 733, 746 n.14 (4th Cir. 2006) (citing Burns, 166 F.3d at 294; Causey v. Balog, 162 F.3d 795, 801 n. 2 (4th Cir. 1998)).
A workplace is considered hostile “[w]hen the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). In determining whether a hostile work environment exists, courts must examine the totality of the circumstances, including “‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'” Faragher v. Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris, 510 U.S. at 23).
Plaintiff appears to rely on the actions underlying his discrimination and retaliation claims to support his hostile work environment claim. (See generally Dkt. No. 29.) More specifically, Plaintiff alleges that Defendant created a hostile work environment because: Lee told him that he “needed to become quicker” on two occasions; Lee told him not to use a certain kind of hammer; Lee did not help him fix his computer; Lee told him that he needed to pull his weight; and Lee subjected him to “bullying, intimidation, degrading and humiliating behavior, and derogatory commentary.” (Id. at 4-16.) As noted, Plaintiff's Amended Complaint provides no specific instances of “bullying, intimidation, degrading and humiliating behavior, and derogatory commentary.” (See generally id.) Regardless, these actions-even taken together and considered in the light most favorable to Plaintiff- fail to show conduct that is “so severe or pervasive” as to alter the conditions of Plaintiff's employment. Harris, 510 U.S. at 22; see also Tom, 2021 WL 1720851, at *3 (dismissing hostile work environment claim where plaintiff was placed on a special evaluation, given two “reprimands,” received a negative or erroneous observation report, received a “below standards” rating, and was subjected to unspecified instances of belittling and micromanagement). The alleged conduct is not particularly frequent or severe, nor is it physically threatening or humiliating. See Faragher, 524 U.S. at 787-88. Further, Plaintiff does not claim that this purportedly hostile environment affected the terms, conditions, or privileges of his employment, nor his work performance. (See generally Dkt. No. 29.)
In addition, Plaintiff again does not provide factual allegations from which the court could reasonably discern that his supposed harassment and hostile treatment was motivated by his age. Indeed, Plaintiff does not allege that Lee, nor anyone else employed by Defendant, commented on his age, or implied that he was too old for his job. (Id.)
For these reasons, Plaintiff's hostile work environment claim fails. The undersigned recommends that this claim be dismissed.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that Defendant's Motion to Dismiss (Dkt. No. 31) be GRANTED and that Plaintiff's case be DISMISSED in full. Because Plaintiff has had multiple opportunities to Amend his Complaint, (see Dkt. Nos. 8, 15, 22, 27), the undersigned does not recommend that the Court grant Plaintiff an opportunity to further amend. Rather, the undersigned recommends that Plaintiff's claims be DISMISSED WITH PREJUDICE.
IT IS SO RECOMMENDED.
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).