IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON DIVISION

Transcription

1 Bautista v. Clemson University Doc. 79 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON DIVISION Gloria Bautista, ) ) Civil Action No. 8: HMH-WMC Plaintiff, ) ) REPORT OF MAGISTRATE JUDGE vs. ) ) Clemson University, ) ) Defendant. ) ) This matter is before e court on e defendant s motion for summary judgment. Pursuant to e provisions of Title 28, United States Code, Section 636(b)(1)(A), 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. FACTS PRESENTED In her complaint, e plaintiff alleges at e defendant discriminated against her on e basis of her race and national origin in violation of Title VII of e Civil Rights Act of 1964, as amended. Upon is court s recommendation, on October 2, 2007, e Honorable Henry M. Herlong, Jr., United States District Judge, dismissed e plaintiff s harassment claims. On March 7, 2008, e defendant filed a motion for summary judgment on e plaintiff s remaining claims. On March 26, 2008, e plaintiff filed her opposition to e motion, and on April 7, 2008, e defendant filed a reply brief. The plaintiff en filed a motion to supplement her opposition to e motion for summary judgment, which was granted by is court. The plaintiff filed her supplemental brief on May 22, 2008, and e defendant filed its reply on June 2, Dockets.Justia.com

2 The plaintiff was hired as an Assistant Professor of Spanish in Clemson University s Languages Department in She was promoted to Associate Professor in 1993, given tenure in 1994, and promoted to full Professor in It is undisputed at in December 2005 e plaintiff was absent from e university for e last week of classes and e week of exams. The plaintiff presented a scholarly paper to an international conference at RMIT University in Melbourne, Australia, on Wednesday and Thursday, December 7 and 8, The final examinations in her courses were scheduled for Monday, December 12, Prior to leaving for e conference, she had arranged for substitute instructors to meet e final class sessions to give details about e final examination and to administer e finals. The plaintiff admits at e substitutes were unknown to e department and at eir qualifications were not verified by e University (pl. dep ). The plaintiff mentioned verbally to e Spanish Coordinator, Dr. Sandy King, and to members of e Peer Evaluation Committee in an dated November 23, 2005, at she would be at a conference e first week of December. The plaintiff did not complete e Auorization for Official Foreign Travel form or e departmental Request for Leave of Absence form, and she admits at such was a violation of e University s policies and procedures (pl. dep , 76). The plaintiff admits at she did not notify her students, her college dean, or her department chair of her trip to Australia (pl. dep ). While e plaintiff was gone, e faer of one of e substitutes died suddenly, and his daughter, e planned substitute, left immediately for her home country. Accordingly, e planned substitute was unable to administer e final examination in two of e courses. The substitute for e oer final exam performed as planned. The plaintiff was in transit on e flight to Australia when e substitute failed to show, and she could not respond to her student s ed questions until her arrival. Upon learning of e situation, e plaintiff s first response was to her students a takehome examination. When it became apparent at some of e students had not received e s, she offered to eier give em eir class average as e final grade or to administer a final examination to any who wished to take it upon her return. The plaintiff admits at is was a violation of e final examination policy in e University s 2

3 Undergraduate Announcements (pl. dep. 78). The plaintiff did not attempt to communicate wi her administrative supervisors (pl. dep , 86). On Tuesday, December 13, e day after e scheduled final examinations, Judy Melton, Senior Associate Dean for Academic Affairs of e College of Architecture, Arts and Humanities (which included e Department of Languages), received an from Debbie Jackson, e Associate Provost for Academic Affairs (Melton dep. 23). The included a copy of an sent by one of e plaintiff s students wherein e student complained at e plaintiff had missed around 10 classes during e semester, at e plaintiff had not been seen for two weeks, at e plaintiff had ed her students on December 8 saying at she was in Australia and would not be back for e final exam, and at e plaintiff had not lectured on ree of e five pieces of literature required for e final. According to e student, e plaintiff s December 8 said at she would send em a final exam on Tuesday to be finished by Friday, even ough e course s exam was scheduled for Monday (def. m.s.j., ex. 2). Dean Melton contacted Dr. Constancio Nakuma, en e Chair of e Department of Languages, and sent him e student s (Melton dep. 23; Nakuma dep. 8-21). She also notified Jan Schach, Dean of e College of Architecture, Arts and Humanities, of e situation (Melton dep ; Schach dep. 8). After trying unsuccessfully to contact e plaintiff by telephone and , Dr. Nakuma had an sent to e plaintiff s students on December 14, 2005, asking e students to come talk to him about any concerns ey might have (Nakuma dep. 9-10, 14). On December 15, 2005, Dr. Nakuma sent an to Deans Schach and Melton summarizing information he obtained from six of e plaintiff s students (def. m.s.j., ex. 3). The six students told Dr. Nakuma e following: The plaintiff did not show up for class on Tuesday, December 6, and on Thursday, December 8. The plaintiff missed many classes during e semester. Students were used as substitute teachers during e plaintiff s absences, even ough some of ese students were currently enrolled in e class as students. 3

4 Students waited in vain for e plaintiff on Tuesday, December 6, and Thursday, December 8, but e plaintiff did not send a substitute teacher. Students in two of e plaintiff s classes received an from e plaintiff stating at she was in Australia. In e same , e plaintiff claimed at she had sent em two questions for eir final exam, but ere was no attachment. The plaintiff s requested at e students write eight questions and answers covering material since eir last test and send e questions to her by Monday. She would en extract five questions from e list to to em on Tuesday as a take home final exam due to her by Friday. One student stated, Dr. Bautista announced very high performance expectations at e beginning of e course but ended up not living up to ose expectations herself. That was confusing. Our entire course grade will be based on a 40% attendance and two test grades wor 20% each. The plaintiff wrote to some students in Spanish 311, but not e entire class, telling em at e final exam would not be given and at eir course grade would be eir grade up to at point. (Def. m.s.j., ex. 3). On Friday, December 16, Dean Schach submitted a request for e plaintiff s dismissal to President James F. Barker rough e Provost, Doris R. Helms (def. m.s.j., ex. 4). In is document, Dean Schach requested e plaintiff s dismissal based on abandonment of her job duties. Dean Schach stated as follows in e memorandum: Dr. Bautista has been absent from campus since December 6, 2005, in addition to missing ten additional class days from her course.... Dr. Bautista has neier requested nor received approved leave for ese time periods. Documented evidence also substantiates Dr. Bautista s demonstrated and repeated pattern of dereliction of duties of a tenured faculty member extending back more an a decade. Her continued neglect of her job duties has brought irreparable harm to her students and e Department of Languages at Clemson University. (Def. m.s.j., ex. 4). In making her recommendation, Dr. Schach also noted several oer instances in e alleged pattern of unprofessional conduct including: A 2001 incident wherein Interim Chair Jose Caban reprimanded e plaintiff for posting flyers at indicated students could easily improve eir grade point ratio by taking her Spanish film course. 4

5 Two occasions in e late 1990s when e plaintiff was reprimanded by en Department Chair Sandy King for departing from Clemson significantly prior to e end of e semester and e final examination. A reprimand by Department Chair Jose Caban for suggesting to students in her Spanish 202 class at she would guarantee em a grade of A if ey enrolled in her Maymester class. 1 A 1994 reprimand by en Department Chair Judy Melton for hiring a substitute to teach e final two weeks of her summer school class and to grade e final examination and determine final grades for e class (see def. m.s.j., ex. 5). A 1991 reprimand from en Department Chair Judy Melton for missing a week of classes and not filling out e necessary leave forms (see def. m.s.j., ex. 7). The plaintiff s removal of reprimand documentation from her personnel file. The plaintiff s abandonment of her responsibility to e Department of Languages Peer Evaluation Committee. (Def. m.s.j., ex. 4). The Provost and e President approved Dean Schach s request for e plaintiff s dismissal on December 20, 2005 (def. m.s.j., ex. 8). By letter dated December 22, 2005, e plaintiff was notified at she was being dismissed from her position as Professor of Spanish on e grounds she abandoned her job in breach of University procedures (def. m.s.j., ex. 9). The plaintiff filed an internal grievance against Dean Schach, Dean Melton, and Dr. Nakuma. Following a hearing, e Faculty Senate Advisory Committee unanimously upheld e decision of e administration and recommended e plaintiff s dismissal on April 27, 2006 (def. m.s.j., ex. 11). The Provost, e President, and e Board 1 Alough Dean Schach s memorandum (def. m.s.j., ex. 4) indicates at is incident took place in 1994, e written reprimand (def. m.s.j., ex. 5) shows at e reprimand actually occurred on July 25, The reprimand shows at e plaintiff had left e country before e end of summer school wiout notifying her students, wiout notifying e department of her plans or of what arrangements had been made for her class, and wiout filling out e required leave form. The reprimand also indicates at e plaintiff had a substitute for e class for at least seven or eight sessions, at she did not give a final exam in her two summer school classes, and at she gave responsibility for e final disposition of grades to a young woman who had just finished her Spanish degree e semester before and who was not a Clemson University faculty member. According to e plaintiff s written response to e reprimand (def. m.s.j., ex. 6), she apologized to e new Department Chair, Sandy King, and assured him at is situation will not happen again. 5

6 of Trustees upheld e plaintiff s dismissal, and e plaintiff s employment was terminated effective November 7, The plaintiff disputes several of e instances noted in Dr. Schach s memorandum requesting her dismissal. Specifically, wi regard to e 1991 reprimand for missing class wiout filling out travel forms, e plaintiff notes at e travel forms are required for travel outside e United States and its territories. Melton had written such a reprimand, but rew it out after e plaintiff pointed out at her trip had been to Puerto Rico, a United States possession. The plaintiff claims at later, wiout her knowledge, at memo was returned to her file (pl. dep ). The plaintiff also disputes at she abandoned her responsibility to e Department s Peer Evaluation Committee, noting at her September 2005 evaluation (pl. resp. m.s.j., ex. B) had commended her for service on at Committee and e fact at she had served on e Committee for several years (pl. dep ). The plaintiff also disputes at she was reprimanded by former Department Chair Jose Caban for guaranteeing students an A in a Maymester class and disputes e two reprimands from former Department Chair Sandy King. The plaintiff claims at while she may have had discussions wi ese former Chairs about certain subjects, she was not reprimanded. As Provost Helms testified, her office must be involved in deciding wheer a reprimand can be placed in someone s file (Helms dep. 8). The plaintiff claims at did not happen in her case. Lastly, e plaintiff notes at e Grievance Committee found at e allegation at she removed a disciplinary action from her file was not supported (def. m.s.j., ex. 11). The plaintiff claims at [g]iven e history of conflict between Gloria Bautista and Judy Melton, a history at in Bautista s view was fueled by Melton s dislike of Hispanics, ese overstatements and false representations are evidence of discrimination (pl. resp. m.s.j. 10) (internal citation omitted). In her deposition, e plaintiff testified at she felt Melton displayed total disregard for Hispanics and she felt Melton zeroed in on making [her] life miserable (pl. dep. 82). 6

7 summary judgment: APPLICABLE LAW AND ANALYSIS Federal Rule of Civil Procedure 56 states, as to a party who has moved for The judgment sought shall be rendered forwi if e pleadings, depositions, answers to interrogatories, and admissions on file, togeer wi e affidavits, if any, show at ere is no genuine issue as to any material fact and at e moving party is entitled to judgment as a matter of law. Accordingly, to prevail on a motion for summary judgment, e movant must demonstrate at: (1) ere is no genuine issue as to any material fact; and (2) at he is entitled to summary judgment as a matter of law. As to e first of ese determinations, a fact is deemed material if proof of its existence or nonexistence would affect e disposition of e case under e applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if e evidence offered is such at a reasonable jury might return a verdict for e non-movant. Id. at 257. In determining wheer a genuine issue has been raised, e court must construe all inferences and ambiguities against e movant and in favor of e non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The party seeking summary judgment shoulders e initial burden of demonstrating to e district court at ere is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once e movant has made is reshold demonstration, e non-moving party, to survive e motion for summary judgment, may not rest on e allegations averred in his pleadings; raer, he must demonstrate at specific, material facts exist which give rise to a genuine issue. Id. at 324. Under is standard, e existence of a mere scintilla of evidence in support of e plaintiff s position is insufficient to wistand e summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, wiout more, are insufficient to preclude e granting of e summary judgment motion. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 7

8 (4 Cir. 1985), overruled on oer grounds, 490 U.S. 228 (1989). Only disputes over facts at might affect e outcome of e suit under e governing law will properly preclude e entry of summary judgment. Factual disputes at are irrelevant or unnecessary will not be counted. Anderson, 477 U.S. at 248. Accordingly, when Rule 56(e) has shifted e burden of proof to e non-movant, he must provide existence of every element essential to his action which he bears e burden of adducing at a trial on e merits. The plaintiff alleges discrimination based on her race (Hispanic) and/or national origin (Colombian) in violation of Title VII. Under e mixed-motive meod of proving discrimination under Title VII, a plaintiff must present sufficient evidence, direct or circumstantial, at, despite e existence of legitimate, nondiscriminatory reasons for e adverse employment action, an illegal factor was a motivating factor in e decision. Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, (4 Cir.2004). As e plaintiff lacks sufficient evidence to proceed under mixed-motive analysis, e plaintiff may proceed under e McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) framework. Under e burden-shifting framework set for in McDonnell Douglas, 411 U.S. at , e allocation of proof is as follows: (1) e plaintiff-employee must first establish a prima facie case of discrimination; (2) if e plaintiff succeeds in proving e prima facie case, e burden shifts to e defendant-employer to articulate a legitimate non-discriminatory reason for its actions; and (3) if e defendant carries is burden, e plaintiff must en establish by a preponderance of e evidence at e reason articulated by e employer is a pretext to mask unlawful discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, (1981) (quoting McDonnell Douglas, 411 U.S. at ). In Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), e Supreme Court reiterated at evidence of pretext, combined wi e plaintiff's prima facie case, does not compel judgment for e plaintiff, because [i]t is not enough... to disbelieve e employer; e factfinder must believe e plaintiff's explanation of intentional discrimination. Id. at 147 (quoting St. Mary's Honor Ctr., 509 U.S. at 519) (emphasis in 8

9 original). However, e Court also stated at, under e appropriate circumstances, "a plaintiff's prima facie case, combined wi sufficient evidence to find at e employer's asserted justification is false, may permit e trier of fact to conclude at e employer unlawfully discriminated." Id. It is e plaintiff s burden to create an inference at e defendant s proffered reason is a pretext for intentional discrimination. See id. at Pretext analysis does not convert Title VII into a vehicle for challenging unfair but nondiscriminatory employment decisions. Holder v. City of Raleigh, 867 F.2d 823, 828 (4 Cir. 1989). Conclusory allegations, wiout more, are insufficient to preclude e granting of e defendant s summary judgment motion. Ross, 759 F.2d at 365. To establish a prima facie case of discrimination under Title VII, e plaintiff must show at: (1) she is a member of a protected class; (2) she was qualified for her job and her job performance was satisfactory; (3) she was fired; and (4) oer employees who are not members of e protected class were retained under apparently similar circumstances. See Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 133 (4 Cir. 2002). The defendant argues at e plaintiff cannot establish prongs two or four and erefore cannot establish a prima facie case of discrimination. The defendant argues at, while e plaintiff was qualified for her position, she has not shown at her job performance was satisfactory. This court agrees. There is no dispute at e plaintiff left e country during e last week of classes and e week of finals; at she did not notify her students or e administration at she was leaving; at she did not fill out e required travel/leave forms; at she hired substitutes, who were unknown to and whose credentials were unverified by e University, to teach her classes and administer exams; at she did not contact e administration when she found out at one of e substitutes would not be able to cover two of her classes as planned; and at she attempted to reschedule and ultimately cancelled e final examinations. The evidence also shows at e plaintiff had been reprimanded for a similar situation in 1995 and at, 9

10 at at time, she had assured e Department Chair at is situation will not happen again (def. m.s.j., ex. 5, 6). Even assuming at e plaintiff could establish at her job performance was satisfactory, e plaintiff cannot show at oer members who are not members of e protected class were retained under apparently similar circumstances. In order to satisfy is prong, [P]laintiff must establish at oer employees were similarly situated in all relevant respects; at ey dealt wi e same supervisor, [were] subject to e same standards and... engaged in e same conduct wiout such mitigating circumstances at would distinguish eir conduct or e employer's treatment of em for it. See Ward v. City of Nor Myrtle Beach, 457 F. Supp.2d 625, 643 (D.S.C.2006) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577 (6 Cir.1992)). The plaintiff argues at anoer faculty member in e Languages Department, Russell Willingham, repeatedly missed classes and failed to administer final examinations (pl. dep ; Melton dep ). Willingham was disciplined, but he was given ree years to improve his performance before he was terminated as e result of an unsatisfactory post tenure review. The plaintiff argues at e contrast between is reeyear period of leniency and e haste to terminate Plaintiff is striking and its defeats any claim at e unfortunate events at disrupted e December 2005 examinations were cause for discharge (pl. resp. m.s.j. 12). However, as argued by e defendant, e plaintiff has not produced sufficient proof at Willingham engaged in e same conduct as she did or at ere were no mitigating circumstances to distinguish his conduct from e plaintiff s or e University s treatment of em for it. The plaintiff admitted in her deposition at she did not know wheer Willingham was auorized to miss classes or wheer or not he violated university policy (pl. dep ). The plaintiff also contends at Joni Hurley, anoer professor in her department, also missed classes or cancelled exams and was not discharged. However, e only evidence regarding Hurley is submitted by way of an list from e plaintiff to 10

11 her attorney (pl. resp. m.s.j., ex. L). In her deposition, e plaintiff could not give dates at Hurley allegedly missed classes, and she admitted at she did not know wheer Hurley had permission to miss classes or if she went rough proper procedures to be out of class (pl. dep ). Accordingly, e plaintiff has not presented admissible evidence at Hurley engaged in e same conduct as she did wiout such mitigating circumstances to distinguish her conduct or e University s treatment of em for it. The plaintiff argues at e Department of Languages has had a relaxed attitude toward oers who failed to fill out foreign travel documents (pl. resp. m.s.j ). In support of her position, e plaintiff submitted an sent to faculty members traveling during e summer of The faculty members were told to submit Auorization for Foreign Travel forms if ey were planning to be out of e country for e summer. The faculty was told if ey had already left e country, ey could send e information via (pl. resp. m.s.j., ex. I). Furer, Department Chair Constancio Nakuma stated in his deposition at he was not sure what e rules were about e form (Nakuma dep. 31). The plaintiff also names two oer professors in her response to e motion for summary judgment and argues at e defendant tolerated conduct at was much more of a fundamental violation of professional behavior when it was engaged in by non- Hispanics (pl. resp. m.s.j. 14). However, as argued by e defendant, e conduct allegedly engaged in by ese two professors, an affair wi a student and an arrest for assault and battery, is clearly not e same as at engaged in by e plaintiff, and us ese professors are not valid comparisons. In her supplemental response to e motion for summary judgment, e plaintiff submitted a travel form at Clemson President Barker did not complete until five days after returning from a trip to Europe (pl. supp. resp. to m.s.j., ex. C; Troutman dep ). As argued by e defendant, President Barker was in no way similarly situated to e plaintiff. The President s main responsibility was not to teach classes, and ere is no evidence he missed any classes or disrupted exams. Furer, e plaintiff s failure to fill out 11

12 e forms was only one of several reasons for her dismissal, and e plaintiff had previously been warned about similar conduct. Also, e appropriate personnel had knowledge of e President s travel plans and had his contact information. The plaintiff also submitted evidence regarding e University s discipline of two non-hispanic track coaches (C. Eugene Troutman, III dep ; pl. supp. resp. to m.s.j., ex. D, E, F). Again, ese employees were in no way similarly situated to e plaintiff. They are not professors, ey reported to a different supervisor an e plaintiff, and ey did not engage in e same conduct as e plaintiff. Even assuming e plaintiff could establish a prima facie case, e defendant has come forward wi a legitimate, non-discriminatory reason for her dismissal. This is merely a burden of production, not of persuasion. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). Accordingly, e plaintiff must en establish by a preponderance of e evidence at e reason articulated by e employer is a pretext to mask unlawful discrimination. The plaintiff has failed to meet is burden. The plaintiff argues in her opposition to e motion for summary judgment at [g]iven e history of conflict between Gloria Bautista and Judy Melton, a history at in Bautista s view was fueled by Melton s dislike of Hispanics, ese overstatements and false representations [in Dean Schach s memorandum requesting e plaintiff s dismissal] are evidence of discrimination (pl. resp. m.s.j. 10) (internal citation omitted). The plaintiff, however, presented absolutely no evidence supporting her claim of animus against Hispanics in e Languages Department and, particularly, against herself. judgment: The plaintiff argues as follows in response to e motion for summary Defendant s motion is based entirely on its contention at e termination of Plaintiff s employment as a tenured full professor is justified by e events surrounding final examinations in two of her classes in December Plaintiff, of course, contends at ose events do not rise to e level of cause for termination, at oer, non-hispanic professors have not been terminated for similar conduct (and for conduct at presents a more compelling case for termination) and at Defendant s 12

13 (Pl. resp. m.s.j. 1-2). motive for terminating her was unlawful discrimination. Defendant does not contest any oer aspect of Plaintiff s claim. As a result, in considering is motion it must be assumed at Plaintiff will prove all oer aspects of her case and would be entitled to a judgment if Defendant s proof on e one aspect of e case fails. Of course, Plaintiff recognizes at e filing of is motion on such a limited argument does not relieve her of e obligation of proving all aspects of her case at trial. Plaintiff has pled facts, which if found to be true, would support a factual finding at discriminatory intent existed in e Languages department of Clemson University where Plaintiff was employed. This response presents, in summary fashion when possible, a brief statement of at evidence. However, ose allegations are not contested in is motion and e Court must evaluate Defendant s claims as if discriminatory intent has been proven. Under Federal Rule of Civil Procedure 56(c), summary judgment should be rendered if e pleadings, e discovery and disclosure materials on file, and any affidavits show at ere is no genuine issue as to any material fact and at e movant is entitled to judgment as a matter of law. Furer, [w]hen a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; raer, its response must by affidavits or as oerwise provided in is rule set out specific facts showing a genuine issue for trial. If e opposing party does not so respond, summary judgment should, if appropriate, be entered against at party. Fed.R.Civ.P. 56(c), (e)(2). Regardless of e type of evidence offered by a plaintiff as support for her discrimination claim (direct, circumstantial, or evidence of pretext), or wheer she proceeds under a mixed-motive or single-motive eory, [t]he ultimate question in every employment discrimination case involving a claim of disparate treatment is wheer e plaintiff was e victim of intentional discrimination. " Hill v. Lockheed Martin Logistics Management, Inc., 13

14 354 F.3d 277, 286 (4 Cir. 2004) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000)). Here, e defendant has come forward wi evidence in support of its motion for summary judgment showing at ere is no genuine issue of material fact and at it is entitled to judgment as a matter of law. The defendant argues and has presented evidence at e plaintiff cannot meet two of e elements of her prima facie case. The defendant has come forward wi a legitimate non-discriminatory reason for e plaintiff s dismissal, and us e plaintiff has e burden of showing e reason was a pretext to mask unlawful discrimination. The plaintiff has failed to present evidence at she was e victim of intentional discrimination. Conclusory allegations, wiout more, are insufficient to preclude e granting of e defendant s summary judgment motion. Ross, 759 F.2d at 365. CONCLUSION AND RECOMMENDATION Wherefore, based upon e foregoing, is court recommends at e defendant s motion for summary judgment be granted. September 19, 2008 Greenville, Sou Carolina s/william M. Catoe United States Magistrate Judge 14