Opinion
C. A. 22-2836-SAL-SVH
10-27-2023
Andris Wright, Plaintiff, v. FedEx Ground Package System, Inc., Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE
In this case, an employee sues his former employer, alleging defamation and negligent supervision, after his employment was terminated following an investigation into a claim against him for sexual harassment. FedEx Ground Package System, Inc. (“Defendant”) asks the court to dismiss the claims against it.
Andris Wright (“Plaintiff”), now proceeding pro se, originally filed this case in the York County Court of Common Pleas, and Defendant removed the case to this court on August 25, 2022. [ECF No. 1]. Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), the 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. 22]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the applicable procedures and the possible consequences if he failed to respond adequately to Defendant's motion. [ECF No. 32]. Defendant's motion having been fully briefed [ECF Nos. 34, 35], the motion is ripe for disposition.
On May 8, 2023, Plaintiff's attorney filed a motion to withdraw as Plaintiff's attorney. [ECF No. 15]. The court granted the motion prior to Plaintiff's filing a response to the instant motion for summary judgment. [ECF No. 23].
Having carefully considered the parties' submissions and the record, the undersigned recommends the district judge grant Defendant's motion.
I. Factual and Procedural Background
Plaintiff began his employment with Defendant in 2013 as a Package Handler in its Fort Mill, South Carolina facility. [ECF No. 1-2 ¶ 5, ECF No. 22-2 ¶ 4]. Plaintiff was later promoted to Package Handler Trainer in 2019. [ECF No. 1-2 ¶ 7, ECF No. 22-2 ¶ 4].
On October 22, 2020, a female employee at the FedEx Ground Fort Mill facility complained to Defendant's human resources department that Plaintiff had engaged in alleged sexual harassment in September 2020. [ECF No. 22-3 at ¶ 5, id. at 6]. Aquisha Jordan (“Jordan”), District Human Resources Manager, was assigned as the case manager for the complaint and assigned Jason Watts (“Watts”), Senior Human Resources Business Partner, to investigate the complaint. [ECF No. 22-3 ¶ 6]. Watts was responsible for reviewing the employee's allegations, interviewing the employee and all witnesses, taking notes, and documenting his investigation. Id. At the conclusion of his investigation, Watts was to recommend a solution. Id.
In its filings, Defendant has redacted the names of the complaining employee and witnesses who participated in the investigation. [See ECF No. 22-1 at 2 n.1].
Defendant represents that Watts died on or about August 28, 2022. [ECF No. 22-3 ¶ 14].
Watts interviewed the employee who filed the complaint on October 22, 2020. [ECF No. 22-3 ¶ 8, id. at 7-10]. On October 28, 2020, Jordan Trantham (“Trantham”), Sort Manager, instructed Todd Wyatt (“Wyatt”), Area Manager, to call Plaintiff and inform him that he was suspended pending an investigation. [ECF No. 1-2 ¶ 11, ECF No. 22-2 ¶ 5, ECF No. 22-4 at 70:2171:-8]. Trantham did not tell Wyatt about the complaint against Plaintiff or provide any details about the allegations against him. [ECF No. 22-2 ¶ 5]. Wyatt called Plaintiff as instructed and told Plaintiff him he was being suspended with pay pending an investigation. [ECF No. 22-2 ¶ 5, ECF No. 22-4 at 71:1-8]. Wyatt did not give Plaintiff any details about the complaint. [ECF No. 22-4 at 72:17-19].
Defendant represents that Trantham was employed with Defendant until December 17, 2020, and, upon information and belief, died after his employment ended and prior to the instant lawsuit being filed. [ECF No. 22-3 ¶ 14, see also ECF No. 22-4 at 111:1-4].
Watts conducted witness interviews of three other employees identified by the complaining employee on November 12, 2020 and November 16, 2020. See id. He then interviewed Plaintiff on November 13, 2020. [ECF No. 22-3 ¶ 8, id. at 10, ECF No. 22-4 at 81:13-82:25]. After conducting these interviews, Watts concluded that the employee's allegations in her complaint were substantiated based on witnesses confirming the complaining employee's allegations as well as offering additional examples of Plaintiff making inappropriate or sexually suggestive comments to them. [ECF No. 22-3 ¶ 9, id. at 11].
Based on his investigation, Watts concluded that Plaintiff should be terminated for violation of Defendant's POLICY-010 Acceptable Conduct and POLICY-020 Anti-Harassment and Retaliation. See id. After Watts completed his investigation and made his recommendation for termination, Jordan reviewed the entire investigation, witness statements, assessment, and Watts' recommendation and agreed with Watts' conclusion. [ECF No. 223 ¶ 11]. Jordan approved Watts' recommended action and then instructed Watts to move forward with the termination. Id. Plaintiff was contacted by telephone on November 19, 2020, and notified that he was terminated. [ECF No. 1-2 ¶ 19, ECF No. 22-4 at 66:7-17, ECF No. 22-3 ¶12, see also ECF No. 22-2 ¶ 7].
Plaintiff testified that while he was suspended, he received calls and texts about “rumors of coworkers” that he had been terminated for sexual harassment. [ECF No. 22-4 at 69:2-70:4]. Plaintiff states he was told that two members of management, Johsua Massey (“Massey”) and Brandon Grunder (“Grunder”), told other employees that he had been terminated for sexual harassment prior to his termination. Id. at 77:15-78:23.
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. for City of Baltimore, 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. Defamation Claim
The tort of defamation allows a plaintiff to recover for injury to his reputation as the result of the defendant's communications to others of a false message about the plaintiff. Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998). Under South Carolina law, “[t]o prove defamation, a plaintiff must show ‘(1) a false and defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.'” Banks v. St. Matthew Baptist Church, 750 S.E.2d 605, 607 (S.C. 2013) (citing Erickson v. Jones St. Publishers, LLC, 629 S.E.2d 653, 664 (S.C. 2006)).
In his amended complaint, Plaintiff alleges the defamatory statements are that he was “falsely [accused] of sexual harassment, assault of a female employee, and other false claims impugning [his] personal character and professional capabilities.” [ECF No. 1-2 ¶ 23]. However, the only evidence in record concerning a potential defamatory statement is Plaintiff's testimony stating that he was informed by one or more coworkers, including Rick Jackson (“Jackson”), that there were rumors spread by Massey and Grunder around the workplace that Plaintiff had been terminated for sexual harassment prior to his termination. [See ECF No. 22-4 at 77:3-20].
Plaintiff has failed to submit evidence in support of his defamation claim sufficient to survive summary judgment, particularly where he has failed to identify with specificity when, where, or to whom Massey and Grunder allegedly spread the rumor that Plaintiff had been terminated for sexual harassment. As stated by this court, in addressing a similar situation:
When asked if any managers talked about the kind of defamatory “things” he testified about, Dickerson identifies Assistant Center Manager Brando Butler (“Butler”). He does not identify which defamatory statement Butler said nor the context, place, or audience of such a statement. Instead, Plaintiff asks the court to read Dickerson's general admission that “in or around March and April 2019” basically all employees (including Butler) were spreading rumors . . . as a specific statement attributable to Butler. A claim for defamation requires more specificity. See English Boiler & Tube, Inc. v. W.C. Rouse & Son, Inc., No. 97-cv-2397, 1999 WL 89125, 172 F.3d 862 (Table) (4th Cir. 1999) (“[I]n order to plead defamation, a plaintiff should allege specific defamatory comments [including] ‘the time, place, content, speaker, and listener of the alleged defamatory matter.'” (citing Caudle v. Thomason, 942 F.Supp. 635, 638 (D.D.C. 1996))); Colleton v. Charleston Water Sys., 225 F.Supp.3d 362, 369 (D.S.C. 2016) (“Defendants cannot be expected to defend against an allegation that [they] defamed [the plaintiff] by making a statement heard by unknown persons at an unknown place at an unknown time.”). Without evidence of who made the allegedly defamatory statement and what the speaker said, Plaintiff's defamation claims concerning other employees cannot survive summary judgment.Young v. CSL Plasma Inc., C/A No. 3:21-1208-SAL, 2022 WL 2872789, at *6 (D.S.C. July 21, 2022) (record citations omitted)).
Additionally, Plaintiff relies on Jackson's hearsay statements that allegedly informed Plaintiff of Massey and Grunder's hearsay statements. See Rule 801(c), SCRE (“‘Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). Plaintiff testified that he never heard any member of management state that he was terminated for sexual harassment and is relying solely on the word of others who have not provided any testimony in this matter. [ECF No. 22-4 at 95:21-96:3, 104:3-11]. Plaintiff makes no attempt to offer any exception to the prohibition on hearsay or other admissible evidence as to the publication of the alleged defamatory statements to third parties.
In his response, Plaintiff references text messages and affidavits, but failed to produce them or any other documents. [See ECF No. 34 at 5].
As explained by this court:
Plaintiff's argument fails to account for the fact that all of the statements she relies on are hearsay within hearsay (also known as double hearsay). Plaintiff is attempting to introduce evidence of Kennedy's out of court statements through the out of court statements of various third parties .... To be admissible, both statements must constitute a hearsay exception or exclusion. F.R.E. 805. Any defamatory statements made by Kennedy may hold independent legal significance or alternatively qualify as statements by a party opponent. However, Plaintiff has offered no explanation for the admissibility of any subsequent statements which would relay Kennedy's initial words made by various third parties.Cain v. Providence Hosp., LLC, C/A No. 3:18-2120-JFA-SVH, 2020 WL 1149724, at *9-10 (D.S.C. Mar. 10, 2020) (collecting cases); Greensboro Prof. Fire Fighters Ass'n v. Greensboro, 64 F.3d 962, 967 (4th Cir. 1995) (inadmissible hearsay “is neither admissible at trial nor supportive of an opposition to a motion for summary judgment”).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's defamation claim.
Given the recommendation above, it is unnecessary to address Defendant's argument that summary judgment also is warranted because truth is an affirmative defense. [See, e.g., ECF No. 22-1 at 7-8].
2. Negligent Supervision Claim
Although Plaintiff has brought a claim for “negligent supervision” against Defendant, his amended complaint indicates he is arguing that Defendant was negligent in how it handled the relevant investigations. Plaintiff alleges that Defendant owed him “a clear duty” to “fully and completely conduct an investigation” into his concerns raised before his termination. [ECF No. 1-2 ¶ 40]. Plaintiff also alleges that Defendant breached its duty by “failing to hear [his] grievances, failing to investigate, and taking action to address Grunder and Massey allegedly discussing the employee complaint against him.” Id. ¶ 41.
As instructed by the South Carolina Supreme Court:
In any negligence cause of action, it is of course essential the plaintiff establish that a legal duty of care was owed to the plaintiff by the defendant. See Bass v. Gopal, Inc., 395 S.C. 129, 134, 716 S.E.2d 910, 913 (2011) (“In any negligence action, the
threshold issue is whether the defendant owed a duty to the plaintiff.”); Bishop v. S.C. Dep't of Mental Health, 331 S.C. 79, 86, 502 S.E.2d 78, 81 (1998) (“An essential element in a cause of action for negligence is the existence of a legal duty of care owed by the defendant to the plaintiff. Without a duty, there is no actionable negligence.” (citing Rogers v. S.C. Dep't of Parole & Cmty. Corr., 320 S.C. 253, 464 S.E.2d 330 (1995))).Denson v. Natl Cas. Co., 886 S.E.2d 228, 231-32 (S.C. 2023) (emphasis in original).
Here, Plaintiff has failed to identify a legal duty of care owed to him by Defendant. As has been repeatedly held by this court, “[i]n South Carolina, employers do not owe any duty of care when terminating an at-will employee.” Armstrong v. Argos USA LLC, C/A No. 2:23-00478-RMG, 2023 WL 3306502, at *4 (D.S.C. May 5, 2023) (citing Gause v. Doe, 451 S.E.2d 408, 409 (S.C. Ct. App. 1994) (affirming dismissal of negligence claim because employee failed “to meet the first element of a negligence claim because his complaint does not allege he was anything other than an at-will employee who could be terminated at any time, for any reason, or for no reason at all, irrespective of any inadequate investigations, false assumptions, or failures to reevaluate on the part of the employer.”)).
Any limited exception to South Carolina's at-will employment doctrine is inapplicable here. See, e.g., Hamilton v. Charleston Cty. Sheriff's Dep't, 731 S.E.2d 727, 728 (S.C. Ct. App. 2012) (“An employer can be liable for negligent supervision of an employee when an ‘employee intentionally harms another' on the employer's premises and ‘[the employer] (i) knows or has reason to know that he has the ability to control his [employee], and (ii) knows or should know of the necessity and opportunity for exercising such control.'” (quoting Degenhart v. Knights of Columbus, 420 S.E.2d 495, 496 (S.C. 1992)); James v. Kelly Trucking Co., 661 S.E.2d 329, 330 (S.C. 2008) (“In circumstances where an employer knew or should have known that its employment of a specific person created an undue risk of harm to the public, a plaintiff may claim that the employer was itself negligent in hiring, supervising, or training the employee, or that the employer acted negligently in entrusting its employee with a tool that created an unreasonable risk of harm to the public.”).
Notwithstanding, Plaintiff argues in support of his negligence-based claim that he was never provided with a written complaint, that Defendant's investigation started 32 days after the alleged incident, that Defendant failed to keep the investigation confidential, and that Defendant violated the Occupational Safety and Health Act (“OSHA”), as well as procedures applicable to public employees. [ECF No. 34 at 7-8].
First, Plaintiff claims that he did not receive a written complaint, which he claims is a violation of “title 8 public office and employee chapter 17 state or local employee grievance procedure section 8-17-330.” Id. at 7. However, this section of the South Carolina Code, entitled “Agency employee grievance plans; procedures; appeals” found under “State Employee Grievance Procedure,” is inapplicable here where Plaintiff is not a “covered employee” and Defendant is not an “agency,” as defined by the relevant statute. See, e.g., SC Code Ann. § 8-17-320 (definitions).
Likewise, OSHA regulations are not applicable here nor does Plaintiff's reference to the South Carolina State Ethics Commission (“Commission”) assist him. [See ECF No. 34 at 7]. The Commission is “the state agency responsible for the enforcement of the Ethics Act, . . . investigates alleged violations of the statute, and after an administrative hearing may either impose a civil penalty or refer the matter to the State Attorney General for appropriate action.” S.C. Citizens for Life, Inc. v. Krawcheck, 301 Fed.Appx. 218, 219 (4th Cir. 2008).
Additionally, although Plaintiff argues a delay in investigation shows negligence, the record shows that Defendant received the relevant complaint on October 22, 2020, and began investigation the same day. [See ECF No. 223 at 6]. Although Plaintiff appears to argue delay occurred because some of the allegations contained in the complaint occurred in September 2020, he has failed to present evidence indicating that Defendant delayed the investigation or breached any duty owed to him.
Finally, and as already addressed above, Plaintiff has failed to present any admissible evidence that Defendant disclosed any information to anyone who was not involved in the investigative process. To the extent Plaintiff relies on Jackson's hearsay statements concerning Massey and Grunder's hearsay statements to support this claim, these statements are inadmissible for the same reasons as stated above concerning Plaintiff's defamation claim.
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's negligence-based claim.
3. Motion to Amend
In his response to Defendant's motion for summary judgment, Plaintiff states he would like to amend his complaint to assert an age-discrimination claim, presumably in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634. [See ECF No. 34 at 8]. Plaintiff has also included the following sentence: “Also, on Federal Rule of Civil Procedure 15 that the Plaintiff be allowed to amend his complaint to pretext discrimination of wrongful termination.” Id. at 7. The court construes this request as one to assert a claim for wrongful termination in violation of Title VII the Civil Rights Act of 1965 (“Title VII”), 42 U.S.C. § 2000e et seq.
Leave to amend should be freely granted under Fed.R.Civ.P. 15(a), and amendments are generally accepted absent futility, undue prejudice, or bad faith. See Foman v. Davis, 371 U.S. 178, 182 (1962); Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009). When a party wishes to amend after the deadline set in the scheduling order, the party must, under Fed.R.Civ.P. 16, show good cause to modify the scheduling order deadlines before also satisfying the Rule 15(a) standard for amendment. Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008). “Rule 16(b)'s good cause standard focuses on the reason for [the amendment's] tardy submission; the primary consideration is the diligence of the moving party.” Montgomery v. Anne Arundel County, MD, 182 Fed App'x 156, 162 (4th Cir. 2006) (citation omitted).
Here, Plaintiff has failed to show good cause to modify the scheduling order to allow amendments to his complaint to include ADEA and Title VII claims roughly one year after the deadline. [See ECF No. 6 (setting November 16, 2022 as deadline to amend the pleadings)]. Indeed, Plaintiff has offered no reason why these claims could not have been asserted much earlier in this litigation.
Turning to the Fed.R.Civ.P. 15(a)'s standard, Plaintiff's proposed amendments would be prejudicial, appear to have been brought in bad faith, and are futile. First, asserting an ADEA or Title VII claim is prejudicial to Defendant in that they “raise a new legal theory that would require the gathering and analysis of facts not already considered by the opposing party . . . .” and have been asserted at this late stage in the litigation. See Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir. 1986). Second, it appears that Plaintiff's proposed amendments may have been brought in bad faith where “it appears that the plaintiff is using Rule 15 to make the complaint a moving target, to salvage a lost case by untimely suggestion of new theories of recovery, [and] to present theories seriatim in an effort to avoid dismissal[.]” Minter v. Prime Equip., 451 F.3d 1196, 1206 (10th Cir. 2006) (citations omitted).
Finally, Plaintiff's proposed amendments are futile. As to the ADEA claim, before filing suit under the ADEA, a plaintiff must exhaust his administrative remedies by filing a charge with the EEOC. “It is well settled that before filing suit under . . . the ADEA, a plaintiff must exhaust her administrative remedies by bringing a charge with the EEOC.” Walton v. Harker, No. 21-1041, 2022 WL 1257128, at *4 (4th Cir. Apr. 28, 2022) (citing 29 U.S.C. § 633a(d)). The allegations contained in the administrative charge of discrimination generally limit the scope of any subsequent judicial complaint. King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976) (stating that a subsequent civil suit “may encompass only the ‘discrimination stated in the [EEOC] charge itself or developed in the course of a reasonable investigation of that charge'”) (citing Equal Emp. Opportunity Comm'n v. Gen. Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976)); see also Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000) (“A plaintiff's EEOC charge defines the scope of her subsequent right to institute a civil suit.”).
One of the primary purposes behind the exhaustion of administrative remedies requirement is to give notice to an employer of the plaintiff's allegations. As stated by the Fourth Circuit:
Congress intended the exhaustion requirement to serve the primary purpose of notice and conciliation. First, an administrative charge notifies the employer of the alleged discrimination. This notice gives the employer an initial opportunity to voluntarily and independently investigate and resolve the alleged discriminatory action. It also prevents the employer from later complaining of prejudice, since it has known of the allegations from the very beginning. Second, the exhaustion requirement initiates agency-monitored settlement, the primary way that claims of discrimination are resolved.Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005) (internal citations omitted); see also id. at 509 (holding that if a discrimination claim “exceed[s] the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred.”) (citations omitted)).
Here, although Plaintiff filed a charge of discrimination prior to filing the instant lawsuit, he did not include any allegation of age discrimination. [See ECF No. 35-1]. Instead, he only alleged discrimination and wrongful termination based on sex in violation of Title VII. See id. Therefore, Plaintiff failed to exhaust his administrative remedies concerning any ADEA claim [ECF No. 35-1], the time to do so has expired [ECF No. 35-2], and his attempts to now assert such a claim are futile.
As to a Title VII wrongful discharge claim, to establish such a claim, and absent evidence of direct discrimination, a plaintiff may use the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove his claims of 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. Constellation Energy Projects & Servs. Grp., Inc., 629 Fed.Appx. 466, 468 (4th Cir. 2015).
If a plaintiff establishes a prima facie case, the burden shifts to the 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 the 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 the plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced is not the true reason but was pretext for discrimination. Id. Throughout the burden-shifting scheme set forth in McDonnell Douglas, the ultimate burden of proving the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.
Here, even if Plaintiff could establish a prima facie case, he has not alleged facts nor submitted evidence that Defendant's legitimate, nondiscriminatory reason for his termination-the result of the sexual harassment investigation-is pretext for discrimination, even where Plaintiff argues he did not engage in sexual harassment. See, e.g., DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (“[I]t is not our province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's [adverse employment action].”) (citations omitted)).
Accordingly, the undersigned recommends the district judge deny Plaintiff's request to amend his instant complaint to include an ADEA discrimination claim and a Title VII wrongful termination claim.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment. [ECF No. 22].
IT IS SO 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).