Opinion
Civil 3:20-CV-341
05-25-2023
KALE WITMER, Plaintiff, v. LEAR CORP. PINE GROVE, Defendant.
Mariani Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Introduction
This case comes before us for consideration of a motion for summary judgment filed by the defendant, Lear Corporation Pine Grove (“Lear”). (Doc. 28). The plaintiff, Kale Witmer, brought this action against the defendant, his former employer, arising out of his termination in July of 2019. He asserts that he was terminated in retaliation for using his approved leave in violation of the Family and Medical Leave Act (“FMLA”). The defendant has filed a motion for summary judgment, (Doc. 28), in which Lear contends that it did not terminate Witmer's employment because he used FMLA approved leave, but because over the course of his employment, he habitually violated the company's attendance policy, resulting in progressive discipline that ultimately ended with Witmer's termination. However, after consideration, we conclude that there are genuine issues of material fact with respect to Witmer's FMLA claim. Accordingly, we will recommend that the motion for summary judgment be denied.
II. Statement of Facts and of the Case
The factual background of this Report and Recommendation is taken from the parties' submissions to the extent they are consistent with the evidence in the record. (Docs. 28-30, 33, 36).
Kale Witmer began his employment with Lear in October of 2012 as a Warp Hanger. During his employment, Witmer worked a shift that began at 7:00 a.m. Monday through Friday and occasionally Saturdays. According to the plaintiff, he typically woke up roughly an hour prior to the start of his shift, as he lived close to the facility. Throughout his employment, beginning in 2015, Witmer applied for and was granted both intermittent leave and periods of consecutive leave under the FMLA due to a back injury.
Lear implemented an attendance policy that, as dated, was effective as of January 1, 2019. The policy set forth the manner of progressive discipline to be used for employee attendance issues. The progressive discipline began with a written warning, followed by three steps, the last of which was termination. Each step of the process would be triggered by an employee receiving two occurrences within a three-month rolling window. The policy called for one-half occurrence to be documented if an employee reported an absence late, and a full occurrence for an absence. Regarding reporting, the policy required all employees to report their absence from work at least one hour prior to the start of their shift. This policy also put employees on notice that the failure to adhere to this advance notice reporting policy would result in a one-half occurrence being assessed in addition to the occurrence for the absence. The attendance policy further contained a list of excused absences, which included FMLA leave, but noted that a failure to follow the leave processes would result in the absence being counted as an occurrence.
Witmer makes much of the fact that the policy he received stated that an employee must report an absence only a half hour in advance rather than one hour, although elsewhere in the policy it stated several times that notice must be given one hour prior to the shift starting. (See Doc. 28-5, Doc. 33-8). However, in his deposition he testified that he asked Human Resources about the discrepancy and was told that it was a typo. (Doc. 28-3, at 21). Further, Witmer was asked: “But you were aware that you needed to call in an hour before your shift?” to which he responded, “To report off, yeah.” (Id., at 14-15).
During the relevant period in this case, Witmer incurred a number of occurrences which led to corrective action through the progressive discipline system. Thus, in January of 2019, Witmer received a written warning after two documented absences on January 6 and January 21. (Doc. 28-8, at 5). After incurring two additional absences on January 23 and February 2, he received a Step 1 corrective action notice on February 12, 2019. (Id., at 4). He then received a Step 2 corrective action notice on February 15 for two additional absences on February 11 and February 14, and he received a two-day suspension without pay. (Id., at 3). These absences were not FMLA-related, and Witmer does not dispute the validity of these occurrences that were documented during this time.
Witmer then incurred an additional half occurrence for being tardy on May 17 and a full occurrence for an absence on June 17. (Id., at 2). Regarding the absence on June 17, it was noted that Witmer reported the absence late. On this score, the record indicates that Witmer went to work but never actually went into the facility or clocked in because he was having an anxiety attack. Thus, although he reported his absence late, as he called in after the start of his shift, he was not assessed a half occurrence for late reporting. Carol Colna, an HR representative, testified that the half occurrence was waived because Witmer made the call from the parking lot and because he was counseled by HR on that day to take the day off due to his anxiety. (Doc. 28-6, at 16).
Beginning on July 2, 2019, Witmer called off several times due to his back pain. These absences were not assessed any occurrences because they were FMLA-related. Indeed, it is undisputed that Witmer was granted short-term disability leave from July 2 through July 14. Thus, even though he reported his absence on July 2 late, the late reporting was noted as excused because he was using his short-term disability. (See Doc. 29, ¶ 16). Similarly, HR excused a half occurrence on July 17 for a late call off due to Witmer's back pain. (Id.) However, Witmer was assessed a half occurrence each for a late report off on July 25 and July 29, although his absences were FMLA-related. (Id.) The half occurrence documented on July 29, 2019 resulted in Witmer accumulating two more occurrences and ultimately in a Step 3 corrective action notice that he was being terminated. (Doc. 28-8, at 2). Witmer grieved his termination through his union, but his union ultimately did not take the grievance to arbitration. (Doc. 28-6, at 10).
It is against this factual backdrop, marked by some discretionary waivers of the defendant's own written policies, that Witmer filed the instant FMLA suit against Lear. (Doc. 1). In his complaint, he asserts that Lear terminated his employment because he requested and took his intermittent FMLA leave in July of 2019. Lear has now moved for summary judgment, arguing that Witmer cannot show a causal connection between his FMLA leave and his termination, and in any event, Lear had a legitimate, nonretaliatory reason for terminating Witmer's employment- violation of the attendance policy. (Doc. 28). For his part, Witmer asserts that he did not violate the attendance policy, that the policy and its enforcement by Lear were ambiguous, and that the policy violates the FMLA. He further asserts that Lear's prior waivers of the late call off occurrences are evidence that Lear's stated reason for his termination is pretextual.
This motion is fully briefed and is ripe for resolution. (Docs. 30, 33, 36). After consideration, and for the following reasons, we conclude that there are genuine issues of material fact with respect to the plaintiff's FMLA claim. Accordingly, we will recommend that the motion for summary judgment be denied.
III. Motion for Summary Judgment - Standard of Review
The defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact,” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010). The substantive law identifies which facts are material, and “[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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third
Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
IV. The Defendant's Motion for Summary Judgment Should be Denied.
As we have noted, the plaintiff has brought a claim under the FMLA, alleging that he was retaliated against for using his FMLA-approved leave when he was terminated on July 29, 2019. For its part, the defendant contends that even if Witmer could show a causal connection between his use of FMLA leave and his termination, Lear had a legitimate reason to terminate him-his habitual attendance issues that resulted in progressive discipline and ultimately his termination. However, after a review of the record, and mindful that we must view the evidence in a light most favorable to Witmer at this juncture, we conclude that there is some evidence from which a factfinder could conclude that Lear's reason for terminating Witmer's employment was pretextual. Accordingly, we recommend that the motion for summary judgment be denied.
The FMLA prohibits an employer from retaliating against an employee for exercising their rights under the FMLA. 29 C.F.R. 825.220(c); Budhun v. Reading Hosp. and Med. Center, 765 F.3d 245, 256 (3d Cir. 2014). In order to state a claim for retaliation under the FMLA, an employee must establish a prima facie case by showing that he invoked a right to FMLA-qualifying leave, subsequently suffered an adverse employment decision, and demonstrate that the adverse action was causally related to his invocation of his FMLA rights. Ross v. Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014) (citing Lichtenstein, 691 F.3d at 302). If the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the employer to show a legitimate, non-retaliatory reason for the allegedly adverse employment decision. Lichtenstein, 691 F.3d at 302. If the employer satisfies this “minimal burden,” id., the plaintiff has the burden of establishing evidence sufficient to cast doubt on the employer's legitimate, non-retaliatory reason. Id.
FMLA retaliation claims are subject to the familiar burden shifting test for employment discrimination claims set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Lichtenstein, 691 F.3d at 302.
On this score, it is undisputed that Witmer engaged in protected activity by exercising or attempting to exercise his FMLA rights, and that he was terminated from Lear on July 29, 2019. Thus, the only element in dispute is whether Witmer's termination was causally connected to his invocation of his FMLA rights.
After consideration, we conclude that Witmer has made this prima facie showing. Indeed, it is undisputed that Witmer was terminated on the same day he attempted to invoke his FMLA leave on July 29, 2019. It is well settled that “[w]hen the ‘temporal proximity' between the protected activity and adverse action is ‘unduly suggestive,' this ‘is sufficient standing alone to create an inference of causality and defeat summary judgment.'” Lichtenstein, 691 F.3d at 308 (quoting LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir. 2007)) (finding that a period of seven days between the employee's protected activity and termination was unduly suggestive). Here, Witmer was terminated less than twenty-four hours after he attempted to invoke his FMLA leave-he reported his absence on July 29, 2019 at 6:28 a.m. and received a voicemail around 2:30 p.m. informing him that he was terminated. We conclude that this eight-hour period between the protected activity and adverse action is sufficiently proximate to allow an inference of causation. Therefore, viewing the evidence in a light most favorable to the plaintiff, Witmer can circumstantially establish a causal connection to make his prima facie case under the FMLA.
For its part, Lear has set forth a nonretaliatory reason for Witmer's termination-his habitual attendance issues which led to progressive discipline and ultimately his termination. Given that Lear's burden on this score is a “minimal” one, Lichtenstein, 691 F.3d at 302, we conclude that Lear's stated reason meets this low burden. Thus, the burden shifts back to Witmer to establish that this reason was actually a pretext for retaliation. In our view, while this is a close question, given that we must resolve all factual issues in favor of Witmer are this juncture there is sufficient evidence in the record from which a factfinder could conclude that the stated reason for Witmer's termination was pretextual.
At the outset, we note that Witmer has not contested his absences noted by the defendant that did not relate to his FMLA leave. Rather, Witmer disputes Lear's contention that he met the number of occurrences for termination under the attendance policy, specifically with respect to the late reporting half occurrences he incurred on July 25 and July 29, 2019. On this score, Witmer's argument is threefold. First, he asserts that the attendance policy's requirement for reporting absences was both ambiguous and unenforced by Lear until he was terminated. He further argues that Lear's history of excusing the half occurrence for late reporting caused further ambiguity, in that it caused him to believe the late reporting occurrences did not apply to FMLA absences. Finally, he contends that Lear's advance notice requirement violates the FMLA.
As to Witmer's first argument, we find this contention unavailing. With respect to his contention that the policy was ambiguous, Witmer claims that the copy of the policy he received stated that an employee must call in an absence at least a half hour prior to the start of his shift, rather than an hour. However, Witmer conceded in his deposition that he asked for clarification from HR, since the policy also referenced the one-hour call off requirement, and he was told it was a typo. (See Doc. 28-3, at 21). Further, Witmer was asked: “But you were aware that you needed to call in an hour before your shift?” to which he responded, “To report off, yeah.” (Id., at 14-15). Accordingly, Witmer's argument that he was unaware of the proper reporting requirement is belied by his own testimony, which clearly indicates that he was aware he needed to report an absence an hour before his shift started. Additionally, to the extent that Witmer contends this policy was not enforced until he was terminated, the defendant has provided evidence that other employees were assessed a half occurrence for late reporting. (See Doc. 28-12, at 7-8, 10).
However, we agree with Witmer that the defendant's enforcement of this requirement, or at times lack of enforcement, could have created some ambiguity from which Witmer could infer that this requirement did not extend to the use of FMLA leave. As we have noted, the half occurrence used to penalize a late call off was excused on several occasions where Witmer called in late to report an FMLA absence. For example, Witmer called off late on July 2, 2019, and the defendant's notes state: “1/2 point for late reporting excused as combined with short term disability 7/2-7/14” (Id.) Similarly, on July 17, 2019, Witmer's half occurrence for late reporting was excused when he called off due to back pain. (Id.) Moreover, Lear's HR manager, Ms. Colna, stated that “if [an employee] on FMLA . . . told us that they were unable to report because of their FMLA, then that would give the waiver of the half point.” (Doc. 28-6, at 9). However, Witmer was assessed a half point on two of the days that he called off for an FMLA absence-July 25 and July 29, 2019-even though the call-off logs listed the reason for his absence as FMLA. (Doc. 28-9, at 2, 4).
Given this material discrepancy regarding how this policy was interpreted and enforced in July of 2019, coupled with the fact that Witmer was terminated a mere eight hours after invoking his FMLA leave, we conclude that “a reasonable jury could conclude that Plaintiff was fired because of an absence which Defendant knew was likely protected by the FMLA.” Fitzgerald v. Shore Memorial Hosp., 92 F.Supp.3d 214, 234 (D.N.J. 2015). Accordingly, we recommend that the court deny summary judgment on the plaintiff's FMLA claim.
To the extent that Witmer has also asserted a claim for interference under the FMLA, he must allege:
(1) he or she was an eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA's requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice to the defendant of his or her intention to take FMLA leave; and (5) the plaintiff was denied benefits to which he or she was entitled under the FMLA.Ross, 755 F.3d at 191-92 (quoting Johnson v. Cmty. Coll. of Allegheny Cnty., 566 F.Supp.2d 405, 446 (W.D. Pa. 2008)). A plaintiff must thus show not only that he was entitled to FMLA leave, but that the employer denied him those benefits. Sommer v. The Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006). The employee does not need to show that he was treated differently from other employees, and the employer cannot justify the denial of FMLA benefits by establishing a legitimate business purpose for its decision. Id. at 399. Moreover, “[b]ecause the FMLA [interference claim] is not about discrimination, a McDonnell Douglas burden-shifting analysis is not required.” Id.
The Third Circuit has emphasized that interference claims are not coterminous with claims of FMLA retaliation, and indeed has explained that “[a]n interference claim is not about discrimination[;] it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA.” Ross, 755 F.3d at 192 (quoting Callison v. City of Phila., 430 F.3d 117, 120 (3d Cir. 2005)) (alteration in Ross). In plain terms, “for an interference claim to be viable, the plaintiff must show that FMLA benefits were actually withheld.” Ross, 755 F.3d at 192.
On this score, the defendant contends that Witmer does not have a claim for interference because all of his requests for FMLA leave were granted, and thus he was not denied benefits. For his part, Witmer contends that his termination after requesting FMLA leave constituted interference with his FMLA rights.
The Third Circuit has not directly spoken to this issue and has not clarified the circumstances under which a plaintiff may assert both a retaliation and an interference claim arising out of his termination for using FMLA leave. See Capps v. Mondelez Global, LLC, 847 F.3d 144, 156 n. 11 (3d Cir. 2017) (recognizing that an interference claim may lie in a situation where “the employee was fired before receiving the benefit of actually taking the leave or being reinstated to the same position following the leave”) (emphasis in original). However, courts within this circuit have discussed the issue and have been reluctant to dismiss this type of interference claim at the summary judgment stage. Indeed, one court aptly highlighted the problems with assessing such a claim given lack of guidance from the Circuit on this particular issue and declined to dismiss the plaintiff's termination-based interference claim at the summary judgment stage:
As Defendant points out, Plaintiff confirmed multiple times at her deposition that she was never denied FMLA benefits. In fact, she stated that “I don't believe the FMLA was interfered with.” (Pl. Dep. at 231.) As Plaintiff notes, however, in some cases, terminating an employee
for requesting FMLA leave may constitute both retaliation and interference. See Capps, 847 F.3d at 156 n.11 (recognizing that a claim for termination-based interference may lie where “the employee ‘requested FMLA leave but was fired before the leave was scheduled to begin,' i.e., before the employee actually took the leave”) (citing Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009)).
Given the lack of case law on this type of interference claim, the questions of the relevant standards and Plaintiff's burden of proof are problematic. Cf. DeCicco v. Mid-Atlantic Healthcare, LLC, 275 F.Supp.3d 546, 563 (E.D. Pa. 2017) (“[T]he precise circumstances under which a plaintiff may advance both retaliation and interference claims is not entirely clear.”). Some courts have allowed interference claims to survive summary judgment solely on the basis of termination during FMLA-covered leave. See, e.g., Kohler v. TE Wire & Cable LLC, No. 14-3200, 2016 WL 885045, at *10 (D.N.J. Mar. 8, 2016). However, we question whether terminating an employee who is currently using or about to use FMLA leave can be actionable in all circumstances. If that were the case, an FMLA-bound employee could never be terminated, even for a perfectly legitimate reason.
Several courts have to read a temporal causation element into this type of interference claim. See, e.g., Phillips v. Great Dane, LLC, No. 18401, 2019 WL 2448320, at *3 (M.D. Pa. June 12, 2019) (denying summary judgment where employee was terminated “within a short time” of notifying employer of medical issues and “before he could use FMLA leave”) (emphasis added); Detwiler v. Clark Metal Prods. Co., No. 08-1099, 2010 WL 1491325, at *17 (W.D. Pa. Mar. 19, 2010) (denying summary judgment where employee was terminated “within days” of notifying employer of need to take additional FMLA leave) (emphasis added). Even then, however, employers could still face liability for engaging in legitimate employment actions.
We join our colleague's opinion in DeCicco in concluding that without clear guidance from the Third Circuit on the contours of a termination-based interference claim, we should be hesitant to dismiss an interference claim on summary judgment where a plaintiff's termination “resulted in benefits being withheld.” See 275 F.Supp.3d at 564. Nevertheless, we still must decide whether Plaintiff's termination
prevented her from availing herself of FMLA benefits to which she was entitled. Based on the record, we conclude that it did.Beird v. Lincoln Univ. of Commw. System of Higher Education, 487 F.Supp.3d, 270, 280-81 (E.D. Pa. 2020).
We find this caselaw persuasive. In the instant case, Witmer asserts that he applied for intermittent FMLA leave in mid-July of 2019, and that this leave was ultimately approved. Thus, “giving [Witmer] the benefit of all reasonable inferences, one could conclude that [he] would have taken additional time off under the FMLA after [his July 29, 2019] termination.” Id. at 281. Accordingly, to the extent the plaintiff is asserting a termination-based interference claim, we recommend that the court deny summary judgment as to this claim. Id.; DeCicco, 275 F.supp.3d at 564.
Because we have concluded that these factual disputes that we have identified should preclude summary judgment on the plaintiff's claims, we do not find it necessary to address the plaintiff's contention that Lear's attendance policy violates the FMLA.
V. Recommendation
For the foregoing reasons, IT IS RECOMMENDED THAT the defendant's motion for summary judgment (Doc. 28) be DENIED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.