{"cached_at":"2026-11-07T10:53:33.055437+00:00","cl_docket_id":"4885549","docket":{"resource_uri":"https://www.courtlistener.com/api/rest/v4/dockets/4885549/","id":4885549,"court":"https://www.courtlistener.com/api/rest/v4/courts/scd/","court_id":"scd","original_court_info":null,"idb_data":{"resource_uri":"https://www.courtlistener.com/api/rest/v4/fjc-integrated-database/22367036/","date_created":"2018-11-21T05:27:04.618103-08:00","date_modified":"2022-01-27T18:47:19.567815-08:00","dataset_source":9,"office":"6","docket_number":"0803186","origin":2,"date_filed":"2008-09-17","jurisdiction":3,"nature_of_suit":442,"title":"","section":"2003","subsection":"","diversity_of_residence":null,"class_action":null,"monetary_demand":0,"county_of_residence":45045,"arbitration_at_filing":"","arbitration_at_termination":"","multidistrict_litigation_docket_number":"","plaintiff":"RICHARDSON","defendant":"KC CONCEPTS LLC","date_transfer":null,"transfer_office":"","transfer_docket_number":"","transfer_origin":"","date_terminated":"2010-02-04","termination_class_action_status":null,"procedural_progress":4,"disposition":6,"nature_of_judgement":0,"amount_received":0,"judgment":2,"pro_se":0,"year_of_tape":2010,"nature_of_offense":"","version":null,"circuit":"https://www.courtlistener.com/api/rest/v4/courts/ca4/","district":"https://www.courtlistener.com/api/rest/v4/courts/scd/"},"clusters":[],"audio_files":[],"assigned_to":"https://www.courtlistener.com/api/rest/v4/people/1436/","referred_to":null,"bankruptcy_information":null,"absolute_url":"/docket/4885549/richardson-v-kc-concepts-llc/","date_created":"2017-04-20T03:41:07.141949-07:00","date_modified":"2022-02-04T14:37:51.819446-08:00","source":9,"appeal_from_str":"","assigned_to_str":"Henry M Herlong, Jr","referred_to_str":"","panel_str":"","date_last_index":"2021-11-05T17:01:09.560562-07:00","date_cert_granted":null,"date_cert_denied":null,"date_argued":null,"date_reargued":null,"date_reargument_denied":null,"date_filed":"2008-09-17","date_terminated":"2010-02-04","date_last_filing":"2010-07-13","case_name_short":"","case_name":"Richardson v. KC Concepts LLC","case_name_full":"","slug":"richardson-v-kc-concepts-llc","docket_number":"6:08-cv-03186","docket_number_core":"0803186","docket_number_raw":"6:08-cv-03186","docket_number_source":0,"federal_dn_office_code":"","federal_dn_case_type":"","federal_dn_judge_initials_assigned":"","federal_dn_judge_initials_referred":"","federal_defendant_number":null,"pacer_case_id":"161760","cause":"42:2003 Job Discrimination","nature_of_suit":"Civil Rights: Jobs","jury_demand":"","jurisdiction_type":"Federal question","appellate_fee_status":"","appellate_case_type_information":"","mdl_status":"","filepath_ia":"","filepath_ia_json":"","ia_upload_failure_count":null,"ia_needs_upload":true,"ia_date_first_change":"2018-09-30T00:00:00-07:00","date_blocked":null,"blocked":false,"appeal_from":null,"parent_docket":null,"tags":[],"panel":[]},"parties":[],"entries":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/16687950/","id":16687950,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4885549/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/17533429/","id":17533429,"tags":[],"absolute_url":"/docket/4885549/99/richardson-v-kc-concepts-llc/","date_created":"2017-04-20T04:59:15.799793-07:00","date_modified":"2018-07-10T22:57:02.834218-07:00","sha1":"8062aaffb6ac4b2687fc56c18da31bd26c76060f","page_count":14,"file_size":84320,"filepath_local":"recap/gov.uscourts.scd.161760/gov.uscourts.scd.161760.99.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.scd.161760/gov.uscourts.scd.161760.99.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"                         IN THE UNITED STATES DISTRICT COURT\n                         FOR THE DISTRICT OF SOUTH CAROLINA\n                                 GREENVILLE DIVISION\n\nBrian Richardson,                            )\n                                             )       C.A. No. 6:08-3186-HMH-BHH\n                        Plaintiff,           )\n                                             )          OPINION & ORDER\n                 vs.                         )\n                                             )\nK.C. Concepts, LLC,                          )\n                                             )\n                        Defendant.           )\n\n           This matter is before the court with the Amended Report and Recommendation1 of United\n\nStates Magistrate Judge Bruce Howe Hendricks, made in accordance with 28 U.S.C. \u00a7 636(b)\n\nand Local Civil Rule 73.02 of the District of South Carolina.2 Brian Richardson (\u201cRichardson\u201d)\n\nalleges causes of action for retaliatory discharge pursuant to S.C. Code Ann. \u00a7 41-1-80 and\n\nwrongful termination under the Americans with Disabilities Act (\u201cADA\u201d), 42 U.S.C. \u00a7 12101,\n\net seq.3 Defendant K.C. Concepts, LLC (\u201cKCC\u201d) filed a motion for summary judgment on\n\n\n       1\n         Magistrate Judge Hendricks filed an initial Report and Recommendation on\nDecember 3, 2009. However, on December 8, 2009, Defendant filed a motion for\nreconsideration which the magistrate judge granted in part and denied in part. As a result of\nMagistrate Judge Hendricks\u2019 ruling on the motion for reconsideration, an amended Report and\nRecommendation was filed on December 29, 2009.\n       2\n         The magistrate judge makes only a recommendation to this court. The recommendation\nhas no presumptive weight. The responsibility to make a final determination remains with this\ncourt. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making\na de novo determination of those portions of the Report and Recommendation to which specific\nobjection is made, and the court may accept, reject, or modify, in whole or in part, the\nrecommendation of the magistrate judge or recommit the matter with instructions. See 28\nU.S.C. \u00a7 636(b)(1)(2006).\n       3\n        Richardson also alleged a cause of action for interference with his Employment\nRetirement Income Security Program (\u201cERISA\u201d) rights under 29 U.S.C. \u00a7 1140. However,\nRichardson has conceded that \u201c[a]fter reviewing Defendant\u2019s Summary Judgment Brief and\n\n                                                 1\n\fApril 16, 2009. Magistrate Judge Hendricks recommends granting KCC\u2019s motion for summary\n\njudgment and dismissing all claims with prejudice. (Am. Report and Recommendation 15.)\n\nAfter review, the court adopts the magistrate judge\u2019s Amended Report and Recommendation and\n\ngrants KCC\u2019s motion for summary judgment.\n\n                           I. FACTUAL AND PROCEDURAL HISTORY\n\n       Richardson began working for Parker Carlisle (\u201cCarlisle\u201d) and Carlisle Construction in\n\nAugust 1997. (Pl. Mem. Opp\u2019n Summ. J. 2.) Carlisle Construction was the sole proprietorship\n\nof Carlisle. (Def. Mem. Supp. Summ. J. 2.) In 2004, while working for Carlisle, Richardson fell\n\nfrom a ladder causing injuries to his \u201cknee and back\u201d (\u201c2004 fall\u201d). (Pl. Mem. Opp\u2019n Summ. J.\n\n6.) Richardson filed a workers\u2019 compensation claim \u201cand the SC Workers\u2019 Compensation\n\nCommission (\u201cWCC\u201d) issued an interim order on July 26, 2006, and its final dispositive order on\n\nAugust 27, 2007.\u201d (Id.)\n\n       In April 2005, Carlisle Construction discontinued its operations and Carlisle entered into\n\nbusiness with Michael Kerley (\u201cKerley\u201d) forming KCC. (Def. Mem. Supp. Summ. J. 2.)\n\nRichardson continued to work for Carlisle and KCC. (Id. at 2-3.) KCC alleges that \u201cRichardson\n\nworked successfully for KCC until the spring of 2007, when his attendance, performance, and\n\nattitude deteriorated.\u201d (Id. at 3.) According to Richardson, in July 2007, he was assaulted by\n\nPaul Mitchell (\u201cMitchell\u201d), a KCC employee that Richardson supervised. (Pl. Mem. Opp\u2019n\n\nSumm. J. 6.) KCC alleges, however, that the altercation was mutual and \u201c[b]oth Richardson and\n\nMitchell were suspended as a result of that incident.\u201d (Def. Mem. Supp. Summ. J. 4.)\n\n\nevidence adduced during discovery, [he] has insufficient evidence to survive summary judgment\non his ERISA interference claim.\u201d (Pl. Mem. Opp\u2019n Summ. J. 1.) Therefore, the court grants\nKCC\u2019s motion for summary judgment on the ERISA cause of action.\n\n                                                2\n\fRichardson concedes that his suspension was \u201cwarranted for handling the situation in the wrong\n\nway.\u201d (Id. Ex. A (Richardson Dep. 175).) Richardson received injuries from the altercation and\n\nfiled a workers\u2019 compensation claim on the matter. (Pl. Mem. Opp\u2019n Summ. J. 6.) \u201cUltimately,\n\n. . . Richardson was never compensated for this injury . . . nor were his medical bills relating\n\nthereto paid.\u201d (Id.)\n\n        \u201cDuring the late spring or early summer of 2007, Carlisle and Kerley noticed a decline in\n\nRichardson\u2019s performance, culminating during August 2007, in numerous absences.\u201d (Def.\n\nMem. Supp. Summ. J. 4.) \u201cBased upon Richardson\u2019s substandard performance, his altercation\n\nwith Mitchell, and his poor attendance, Carlisle and Kerley decided to terminate Richardson\u2019s\n\nemployment . . . on September 14, 2007.\u201d (Id.) Richardson contends that he was terminated\n\nbecause of his disability and in retaliation for pursuing workers\u2019 compensation benefits.\n\n(Compl., generally.)\n\n                                   II. DISCUSSION OF THE LAW\n\n                                A. Summary Judgment Standard\n\n       Summary judgment is appropriate only \u201cif the pleadings, the discovery and disclosure\n\nmaterials on file, and any affidavits show that there is no genuine issue as to any material fact and\n\nthat the movant is entitled to a judgment as a matter of law.\u201d Fed. R. Civ. P. 56(c)(2). Rule 56(c)\n\nmandates entry of summary judgment \u201cagainst a party who fails to make a showing sufficient to\n\nestablish the existence of an element essential to that party\u2019s case.\u201d Celotex Corp. v. Catrett, 477\n\nU.S. 317, 322 (1986).\n\n       In deciding whether there is a genuine issue of material fact, the evidence of the\n\nnon-moving party is to be believed and all justifiable inferences must be drawn in the non-\n\n\n                                                  3\n\fmovant\u2019s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However,\n\n\u201c[o]nly disputes over facts that might affect the outcome of the suit under the governing law will\n\nproperly preclude the entry of summary judgment. Factual disputes that are irrelevant or\n\nunnecessary will not be counted.\u201d Id. at 248.\n\n       Moreover, \u201c[w]hen a motion for summary judgment is properly made and supported, an\n\nopposing party may not rely merely on allegations or denials in its own pleading; rather its\n\nresponse must \u2013 by affidavits or as otherwise provided in this rule \u2013 set out specific facts showing\n\na genuine issue for trial.\u201d Fed. R. Civ. P. 56(e)(2).\n\n                 B. Objections to the Amended Report and Recommendation\n\n       Both Richardson and KCC filed objections to the Amended Report and Recommendation.\n\nObjections to the Report and Recommendation must be specific. Failure to file specific\n\nobjections constitutes a waiver of a party\u2019s right to further judicial review, including appellate\n\nreview, if the recommendation is accepted by the district judge. See United States v. Schronce,\n\n727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the Report and\n\nRecommendation of the magistrate judge, this court is not required to give any explanation for\n\nadopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).\n\n                                   1. Richardson\u2019s Objections\n\n       Upon review, the court finds that many of Richardson\u2019s objections are non-specific,\n\nunrelated to the dispositive portions of the magistrate judge\u2019s Amended Report and\n\nRecommendation, or merely restate his claims. However, Richardson submits two specific\n\nobjections to the Amended Report and Recommendation. Richardson alleges that the magistrate\n\njudge erred in (1) concluding that the employee numerosity requirement under the ADA is\n\n\n                                                  4\n\fjurisdictional and that Richardson did not present a genuine issue of material fact regarding the\n\nnumber of workers employed by KCC and (2) her conclusions \u201cregarding the workers\u2019\n\ncompensation retaliation claim by . . . resolving factual disputes in Defendant\u2019s favor and\n\nerroneously making credibility determinations.\u201d (Richardson Objections, generally.)\n\n                       a. The ADA\u2019s Employee Numerosity Requirement\n\n        First, Richardson objects to the magistrate judge\u2019s conclusion that the numerical threshold\n\nfor employees under the ADA is a jurisdictional issue. (Id. at 2.) The magistrate judge explained\n\nthat it \u201cappears that the Fourth Circuit considers the question as to whether . . . an entity qualifies\n\nas an \u2018employer\u2019 to be a jurisdictional one. But the courts of appeals are split.\u201d (Am. Report and\n\nRecommendation 5 (internal citations omitted).) Richardson argues, however, that the numerical\n\nthreshold \u201cis an element of [his] claim for relief, not a jurisdictional issue.\u201d (Richardson\n\nObjections 2.)\n\n        The ADA states in pertinent part that \u201c[n]o covered entity shall discriminate against a\n\nqualified individual on the basis of disability in regard to . . . discharge of employees. . . .\u201d\n\n42 U.S.C. \u00a7 12112(a) (1990). An employer is a covered entity under the ADA. \u00a7 12111(2). The\n\nADA defines an employer as \u201ca person engaged in an industry affecting commerce who has 15 or\n\nmore employees for each working day in each of 20 or more calendar weeks in the current or\n\npreceding calendar year.\u201d \u00a7 12111(5)(A) (emphasis added).4 Richardson argues that the\n\ndetermination of whether KCC is an employer under the ADA is an element of his ADA claim\n\n\n\n       4\n         \u201cThe \u2018current\u2019 calendar year is the year in which the alleged discrimination occurred.\u201d\nBinns v. Primary Group, Inc., 23 F. Supp. 2d 1363, 1366 (M.D. Fla. 1998). In the instant case,\nthe current calendar year is 2007, the year of Richardson\u2019s termination, and the preceding year is\n2006. Thus, the relevant time period at issue in this case is 2006-2007 (\u201crelevant time period\u201d).\n\n                                                    5\n\fand he has \u201cclearly provided sufficient evidence to survive a [summary judgment] motion.\u201d\n\n(Richardson Objections 1.)\n\n       In Jones v. American Postal Workers Union, 192 F.3d 417, 423 (4th Cir. 1999), the\n\nUnited States Court of Appeals for the Fourth Circuit explained that \u201c[a] district court lacks\n\nsubject matter jurisdiction over an ADA claim lodged against a defendant that is [not] an\n\nemployer . . . as th[at] term[] [is] defined in the ADA.\u201d In support of this assertion, the Fourth\n\nCircuit cited and relied upon Title VII, 42 U.S.C. \u00a7\u00a7 2000e, et seq., case law holding that\n\nwhether an entity constitutes an \u201cemployer\u201d within Title VII is a question of subject matter\n\njurisdiction. Id.; see, e.g., Woodard v. Virginia Bd. of Bar Examiners, 598 F.2d 1345, 1346 (4th\n\nCir. 1979) (affirming dismissal of Title VII claim for lack of jurisdiction because Defendant was\n\nnot an employer within the meaning of Title VII). A district court must dismiss an action if at\n\nany time it determines that it lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).\n\nAccordingly, if the ADA\u2019s employee numerosity requirement is jurisdictional and KCC fails to\n\nmeet the requirement, the court must dismiss Richardson\u2019s ADA claim regardless of the\n\nremaining merits. By contrast, if the employee numerosity requirement is an element of an ADA\n\nclaim, Richardson may survive summary judgment on that issue by showing that there is a\n\ngenuine issue of material fact regarding the number of employees. See Fed. R. Civ. P. 56(c)(2).\n\n       In Arbaugh v. Y&H Corporation, 546 U.S. 500, 509 (2006), the United States Supreme\n\nCourt \u201cgranted certiorari . . . to resolve conflicting opinions in Courts of Appeals on the question\n\nwhether Title VII\u2019s employee-numerosity requirement . . . is jurisdictional or simply an element\n\nof a plaintiff\u2019s claim for relief.\u201d The United States Supreme Court held that \u201cthe threshold\n\n\n\n\n                                                  6\n\fnumber of employees for application of Title VII is an element of a plaintiff\u2019s claim for relief,\n\nnot a jurisdictional issue.\u201d Id. at 516.\n\n        Like the ADA, Title VII defines an employer as \u201ca person engaged in an industry\n\naffecting commerce who has fifteen or more employees for each working day in each of twenty\n\nor more calendar weeks in the current or preceding calendar year.\u201d 42 U.S.C. \u00a7 2000e(b) (1991).\n\n\u201cBecause the statutory framework of the ADA incorporates by reference many provisions of\n\nTitle VII and because courts have used Title VII case law as persuasive authority, the principles\n\ndeveloped in those cases are instructive on issues concerning the ADA.\u201d Binns, 23 F. Supp. 2d\n\nat 1365. \u201cTitle VII cases are thus persuasive precedent in ADA litigation.\u201d Ellis v. Mohenis\n\nServ., Inc., No. 96-6307, 1997 WL 364468, at *4 n.3 (E.D. Pa. June 18, 1997) (unpublished).\n\n        Other courts that have considered this issue post-Arbaugh have concluded that the ADA\u2019s\n\nemployee numerosity requirement is an element of the claim for relief. See, e.g., Powers v.\n\nAvondale Baptist Church, No. 3:06-363, 2007 WL 2310782, at *2 (M.D. Fla. Aug. 9, 2007)\n\n(unpublished) (citing Arbaugh for the proposition that the ADA\u2019s numerical employee threshold\n\nis not jurisdictional). The Fourth Circuit has yet to address the ADA\u2019s employee numerosity\n\nrequirement post-Arbaugh. However, as noted above, in Jones, the Fourth Circuit cited to Title\n\nVII case law in determining that the employee numerosity requirement is jurisdictional. 192 F.3d\n\nat 423. Based on the foregoing, the court finds that, in light of Arbaugh, the ADA\u2019s employee\n\n\n\n\n                                                 7\n\fnumerosity requirement is an element of an ADA claim. As such, the court will treat the\n\nemployee numerosity requirement as an element of Richardson\u2019s ADA claim.5\n\n           KCC alleges that it does not qualify as an employer under the ADA. (Def. Mem. Supp.\n\nSumm. J. 9.) Elaine Blackwell (\u201cBlackwell\u201d), KCC\u2019s office manager in charge of maintaining\n\nall personnel, payroll, and other office records, states that \u201cKCC did not have 15 or more\n\nemployees for each working day in each of 20 or more calendar weeks during the years 2006-\n\n2007.\u201d (Id. Ex. H (Blackwell Decl. \u00b6 4).) Richardson alleges that KCC employed \u201cmore than\n\n15-20 employees with all the undocumented workers.\u201d (Richardson Objections 19.) Richardson\n\nhas been unable, however, to provide any evidence that KCC employed fifteen or more\n\nemployees during the relevant time period. Richardson, for example, has not provided the court\n\nwith any statements from the alleged \u201cundocumented employees,\u201d stating that they worked for\n\nKCC during the relevant time period. In addition, Richardson has not provided any evidence to\n\nsuggest that Blackwell\u2019s statement regarding KCC\u2019s employment records is false. Instead,\n\nRichardson merely alleges that the \u201cundocumented workers, who [KCC] kept off the payroll,\n\nwere utilized in such a manner that [KCC] should be considered their employer for purposes of\n\nthe ADA.\u201d (Id. at 20.) However, \u201c[o]n summary judgment, . . . [Richardson] cannot rest on\n\nmere allegations.\u201d Jenkins v. Commonwealth Land Title Ins. Co., 95 F.3d 791, 796 (9th Cir.\n\n1996). Consequently, Richardson has not provided sufficient evidence to establish a genuine\n\nissue of material fact regarding the employee numerosity element of his ADA claim.\n\n\n\n       5\n          The court notes that even if the ADA\u2019s employee numerosity requirement is a\njurisdictional issue, Richardson\u2019s ADA claim still fails as he has not provided sufficient\nevidence to refute KCC\u2019s proof that it did not employ the requisite number of employees during\nthe relevant time period.\n\n                                                 8\n\fAccordingly, the court grants KCC\u2019s motion for summary judgment on Richardson\u2019s ADA\n\nclaim.\n\n           b. South Carolina Workers\u2019 Compensation Retaliatory Discharge Claim\n\n         Next, Richardson objects that the magistrate judge \u201cerred regarding the workers\u2019\n\ncompensation retaliation claim by apparently resolving factual disputes in Defendant\u2019s favor and\n\nerroneously making credibility determinations.\u201d (Richardson Objections 20.) The magistrate\n\njudge concluded that upon viewing all admissible factual allegations in the light most favorable\n\nto Richardson, his retaliatory discharge claim could not survive summary judgment because KCC\n\nprovided a statutory affirmative defense. (Am. Report and Recommendation 13-14.)\n\n         Richardson alleges that he was \u201cterminated in part because []he instituted or pursued a\n\nworkers\u2019 compensation matter\u201d in violation of S.C. Code Ann. \u00a7 41-1-80. (Compl. \u00b6 10.)\n\nSection 41-1-80 states that \u201c[n]o employer may discharge or demote any employee because the\n\nemployee has instituted or caused to be instituted, in good faith, any proceeding under the South\n\nCarolina Workers\u2019 Compensation Law.\u201d \u201cIn order to prove a claim under \u00a7 41-1-80, a plaintiff\n\nmust establish three elements: 1) institution of workers\u2019 compensation proceedings, 2) discharge\n\nor demotion, and 3) a causal connection between the first two elements.\u201d Hinton v. Designer\n\nEnsembles, Inc., 540 S.E.2d 94, 97 (S.C. 2000). Richardson must, therefore, \u201cestablish that he\n\nwould not have been discharged \u2018but for\u2019 the filing of the workers\u2019 compensation claim.\u201d Id.\n\nAdditionally, section 41-1-80 also provides, in pertinent part, that \u201c[a]ny employer shall have as\n\nan affirmative defense to this section the following: wilful or habitual tardiness or absence from\n\nwork . . . [or] failure to meet established employer work standards.\u201d \u201cWhile the employer has the\n\n\n\n\n                                                 9\n\fburden of proving its affirmative defenses, the employer does not have the burden of establishing\n\nthe affirmative defenses are causally related to the discharge.\u201d Hinton, 540 S.E.2d at 97.\n\n        The burden of persuasion never shifts and the employee bears the burden of\n        persuasion that the reason given for termination was pretextual . . . . The\n        employee may succeed in this, either directly by persuading the court that the\n        discharge was significantly motivated by retaliation for h[is] exercise of statutory\n        rights, or indirectly by showing that the employer\u2019s proffered explanation is\n        unworthy of credence.\n\nId. (quoting Wallace v. Milliken & Co., 406 S.E.2d 358, 360 (S.C. 1991)). \u201c[T]he ultimate\n\nburden is, throughout, upon the employee.\u201d Id. (quoting Wallace, 406 S.E.2d at 360).\n\n       Richardson timely filed a claim for workers\u2019 compensation for the 2004 fall. (Pl. Mem.\n\nOpp\u2019n Summ. J. 6.) The WCC \u201cissued an interim order on July 26, 2006, and its final\n\ndispositive order on August 27, 2007.\u201d Id. Richardson\u2019s employment with KCC was terminated\n\non September 14, 2007, approximately two weeks after the WCC\u2019s final order. (Id. at 8.)\n\nAccordingly, Richardson has presented the court with sufficient evidence to establish the\n\ninstitution of a workers\u2019 compensation claim and his discharge by KCC.\n\n       Richardson alleges that he has also presented an \u201coverwhelming\u201d amount of evidence to\n\nsatisfy the causation element. (Richardson Objections 21.) Richardson alleges that Carlisle\n\nmade \u201cnegative comments\u201d toward him regarding his injuries and work restrictions that resulted\n\nfrom the 2004 fall. (Id.) Richardson also alleges that in \u201cthe spring of 2005,\u201d Carlisle told\n\nMitchell \u201cthat [Richardson] would be terminated due to [his] back injury and workers\u2019\n\ncompensation claim.\u201d (Pl. Mem. Opp\u2019n Summ. J. Ex. N (Richardson Aff. \u00b6 7).) Mitchell,\n\nhowever, states that he never had any discussions with Carlisle regarding Richardson\u2019s health\n\nconditions or his workers\u2019 compensation claim. (Id. Ex. F. (Mitchell Dep. 19).)\n\n\n\n                                                 10\n\f             KCC alleges that Richardson\u2019s employment was terminated due to \u201cpoor attendance, poor\n\nperformance, and a confrontation with [Mitchell].\u201d (Def. Mem. Supp. Summ. J. 11.) Habitual\n\ntardiness or absence from work and failure to meet established employer work standards are\n\naffirmative defenses under section 41-1-80. Richardson concedes that in July 2007 his \u201cfeet\n\nstarted bothering [him], and [in] July and August [his] feet [problems combined] with [his] liver\n\nwas why [his] job [performance] was sub-par.\u201d (Id. Ex. A (Richardson Dep. 200).) According to\n\nRichardson, his problems with his feet made him either unable to perform his job or made it\n\nnecessary to leave work early or come in late. (Id. Ex. A (Richardson Dep. 207).) Richardson\n\nalso states that his attendance was a problem during August 2007. (Id. Ex. A (Richardson Dep.\n\n199).)\n\n             The purpose of statutes such as \u00a7 41-1-80 is to prohibit an employer from\n             discharging an employee because the employee has filed a claim for workers\u2019\n             compensation benefits where the employee is able\u2013notwithstanding his on-the-job\n             injury\u2013to perform all the duties of his job. Section 41-1-80 . . . do[es] not,\n             however, require an employer to retain an employee who can no longer perform\n             the duties of h[is] job simply because h[is] inability to perform the duties results\n             from an on-the-job injury.6\n\nHines v. United Parcel Service, Inc., 736 F. Supp. 675, 678 (D.S.C. 1990).\n\n             Richardson alleges that the close proximity of time between his termination and the\n\nsettlement of his workers\u2019 compensation claim as well as \u201cthe complete and total absence of any\n\ninvestigation or write-ups for nearly all bases for [his termination]\u201d presents evidence of pretext.\n\n(Pl. Mem. Opp\u2019n Summ. J. 20.) The court finds that Richardson has failed to establish that\n\nKCC\u2019s reasons for his termination are pretextual. First, Richardson admits that he does not know\n\n\n         6\n          Richardson states that the problems with his feet were not a result of the 2004 fall,\nrather they were related to his cirrhosis. (Def. Mem. Supp. Summ. J. Ex. A (Richardson Dep.\n207).)\n\n                                                     11\n\fwhether his workers\u2019 compensation claim was a factor in KCC\u2019s decision to terminate his\n\nemployment. (Def. Mem. Supp. Summ. J. Ex. A (Richardson Dep. 192).) Richardson also states\n\nthat he does not know whether anyone at KCC was aware of his workers\u2019 compensation\n\nsettlement on September 14, 2007. (Id. Ex. A. (Richardson Dep. 193-94).) Moreover, although\n\nthere is a short proximity of time between Richardson\u2019s workers\u2019 compensation settlement and\n\nhis date of termination, the court notes that Richardson instituted his workers\u2019 compensation\n\nclaim three years prior to being terminated. Section 41-1-80 protects employees from being\n\nretaliated against for instituting a proceeding under the South Carolina Workers\u2019 Compensation\n\nLaw. Based on the admissible evidence before the court, it does not appear that Richardson was\n\nretaliated against in 2007 for an act he instituted in 2004.\n\n       Additionally, Richardson concedes that in August 2007, he was frequently absent from\n\nwork, his work performance was substandard, and his health conditions prevented him from fully\n\nperforming his duties. (Id. Ex. A. (Richardson Dep. 199-207).) Richardson also does not contest\n\nthat he was involved in a physical altercation with Mitchell, his subordinate. (Pl. Mem. Opp\u2019n\n\nSumm. J. 6.) Consequently, Richardson has failed to raise any genuine issues of material fact\n\nthat KCC\u2019s reasons for terminating his employment are false. The only inference that can be\n\ndrawn from the evidence is that KCC terminated Richardson as a result of his poor performance,\n\nabsences, and earlier altercation with Mitchell. (Def. Mem. Supp. Summ. J. 11.) The court finds\n\nthat KCC has sufficiently raised and proven an affirmative defense to Richardson\u2019s retaliation\n\nclaim. Richardson has failed to prove pretext or that KCC\u2019s defense is unworthy of credence.\n\n       Richardson also objects that the magistrate judge resolved factual disputes and made\n\nerroneous credibility determinations in her discussion of his retaliation claim. (Richardson\n\n\n                                                  12\n\fObjections 20.) Upon review, the court finds that the magistrate judge appropriately discussed\n\nRichardson\u2019s allegations while noting the inconsistencies presented by the objective evidence in\n\nthe record. Accordingly, Richardson\u2019s objection is without merit. For the foregoing reasons, the\n\ncourt grants summary judgment to KCC on Richardson\u2019s retaliatory discharge claim.\n\n                                      2. KCC\u2019s Objections\n\n       KCC also filed objections to the magistrate judge\u2019s Amended Report and\n\nRecommendation. KCC submits two specific objections: the magistrate judge \u201cmistakenly\n\nconcluded\u201d (1) \u201cthat the Court should not resolve the substance of Richardson\u2019s workers\u2019\n\ncompensation retaliatory discharge claim\u201d and (2) that \u201csome issues of fact likely remain as to\n\nthe accusation of absenteeism based on [Richardson\u2019s] representation that essentially all of the\n\nalleged absences were excused.\u201d (KCC Objections 1-2.) The court finds that both of KCC\u2019s\n\nobjections are moot. As discussed above, the court finds that KCC has sufficiently established\n\ntwo affirmative defenses due to Richardson\u2019s frequent absences and failure to meet work\n\nperformance standards. Accordingly, the court has granted KCC\u2019s motion for summary\n\njudgment on Richardson\u2019s retaliation claim.\n\n       Therefore, after a thorough review of the magistrate judge\u2019s Amended Report and the\n\nrecord in this case, the court adopts Magistrate Judge Hendricks\u2019 Amended Report and\n\nRecommendation to the extent that it is consistent with this opinion and grants KCC\u2019s motion for\n\nsummary judgment.\n\n\n\n\n                                                13\n\f       Therefore, it is\n\n       ORDERED that KCC\u2019s motion for summary judgment, docket number 36, is granted,\n\nand all claims are dismissed with prejudice.\n\n       IT IS SO ORDERED.\n\n                                               s/Henry M. Herlong, Jr.\n                                               Senior United States District Judge\n\nGreenville, South Carolina\nFebruary 4, 2010\n\n\n\n\n                                                 14\n\f","ocr_status":2,"date_upload":null,"document_number":"99","attachment_number":null,"pacer_doc_id":"16303960369","is_available":true,"is_free_on_pacer":true,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2017-04-20T04:59:15.795120-07:00","date_modified":"2017-05-10T23:14:06.189042-07:00","date_filed":"2010-02-04","time_filed":null,"entry_number":99,"recap_sequence_number":"2010-02-04.001","pacer_sequence_number":null,"description":" OPINION and ORDER RULING ON REPORT AND RECOMMENDATIONS for  90  Report and Recommendations;  36  Motion for Summary Judgment, filed by KC Concepts LLC, is GRANTED, and all claims are dismissed with prejudice.  Signed by Honorable Henry M Herlong, Jr on 2/4/10. (sfla)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/16676415/","id":16676415,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4885549/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/17521893/","id":17521893,"tags":[],"absolute_url":"/docket/4885549/90/richardson-v-kc-concepts-llc/","date_created":"2017-04-20T04:20:39.097500-07:00","date_modified":"2018-07-10T22:42:47.621893-07:00","sha1":"29faefb6540720dd4adb774bf4690eba3103db76","page_count":15,"file_size":95392,"filepath_local":"recap/gov.uscourts.scd.161760/gov.uscourts.scd.161760.90.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.scd.161760/gov.uscourts.scd.161760.90.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"                  IN THE DISTRICT COURT OF THE UNITED STATES\n                      FOR THE DISTRICT OF SOUTH CAROLINA\n                              GREENVILLE DIVISION\n\n\nBrian Richardson,                         )\n                                          )      Civil Action No. 6:08-3186-HMH-BHH\n                           Plaintiff,     )\n                                          )\n            vs.                           )       AMENDED REPORT AND\n                                          )       RECOMMENDATION OF\n                                          )        MAGISTRATE JUDGE\n                                          )\nK.C. Concepts, LLC,                       )\n                                          )\n                           Defendant.     )\n                                          )\n\n\n       This matter is before the Court on the defendant\u2019s motion for summary judgment\n\npursuant to Federal Rule of Civil Procedure 56. The plaintiff has pled causes of action for\n\ninterference with Employee Retirement Income Security Act (\u201cERISA\u201d) rights; discriminatory\n\ndischarge under the Americans with Disabilities Act (\u201cADA\u201d); and retaliatory discharge under\n\nSouth Carolina Code Section 41-1-80 for filing a workers\u2019 compensation claim. The plaintiff,\n\nhowever, has expressly abandoned his claim pursuant to ERISA, which will, therefore, not\n\nbe considered. (Pl. Resp. at 1.)\n\n       In light of the defendant\u2019s motion for reconsideration [Doc. 83], filed December 8,\n\n2009, which the Court has granted, in part, and denied, in part, the undersigned files this\n\namended Report and Recommendation. The revised filing alters the Court\u2019s prior ruling in\n\nregards to the plaintiff\u2019s Workers\u2019 Compensation claim and now recommends dismissal of\n\nthe same.\n\n       Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and\n\nLocal Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases\n\nare referred to a United States Magistrate Judge for consideration.\n\f                                    FACTS PRESENTED\n\n       In approximately 1997, the plaintiff began working as a carpenter for Carlisle\n\nConstruction, a residential framing and remodeling contractor. (Pl. Dep. at 121.) Carlisle\n\nConstruction was the sole proprietorship of Parker Carlisle. (Carlisle Dep. at 6.) While\n\nworking for Carlisle Construction in 2004, the plaintiff fell off of a ladder, injuring his\n\nknee and back. (Pl. Dep. at 129-132). The plaintiff filed a workers\u2019 compensation claim\n\nwhile still working for Carlisle Construction, as a result of those injuries. (Pl. Dep. at 132,\n\n134.) Carlisle Construction\u2019s workers\u2019 compensation insurance carrier was The South\n\nCarolina Home Builders\u2019 Self Insured Fund (\u201cSCHBSIF\u201d). (Carlisle Dep. at 33; Pl. Dep. at\n\n228-229.)\n\n       In April 2005, Carlisle Construction discontinued its operations. Carlisle decided\n\nto go into business with a Michael Kerley. They formed the defendant entity, K.C Concepts,\n\nLLC. (Carlisle Dep. at 6-7.) The defendant is also in the residential framing and remodeling\n\nbusiness. (Carlisle Tr. 7).\n\n       The defendant contends that the plaintiff worked successfully until the spring of\n\n2007, when his attendance, performance, and attitude deteriorated. (Kerley Dep. at 4, 18-\n\n19, 27-28; Carlisle Dep. at 73-75, 107; Pl. Dep. at 195-196, 203-05.) Additionally, in July\n\n2007, the plaintiff was involved in an altercation with Paul Mitchell, a KCC employee he\n\nsupervised. (Pl. Dep. at 154-155; Carlisle Dep. at 40-42, 67-68.)           The plaintiff filed a\n\nsecond workers\u2019 compensation claim as to this matter as well. (Pl. Ex. K.)\n\n       Based upon the plaintiff\u2019s alleged substandard performance, his altercation with\n\nMitchell, and his poor attendance, Carlisle and Kerley decided to terminate the plaintiff\u2019s\n\nemployment. (Carlisle Dep. at 38, 78-79; Kerley Dep. at 4.) The plaintiff\u2019s employment was\n\nterminated on September 14, 2007. (Pl. Dep. at 300.)\n\n\n\n\n                                               2\n\f       The plaintiff contends that his termination was actually in retaliation to his having filed\n\nfor workers\u2019 compensation and the effect those payments would have on the insurance\n\npremiums of the defendant.\n\n                                     APPLICABLE LAW\n\n              Federal Rule of Civil Procedure 56(c) states, as to a party who has moved for\n\nsummary judgment:\n\n              The judgment sought shall be rendered forthwith if the\n              pleadings, depositions, answers to interrogatories, and\n              admissions on file, together with the affidavits, if any, show that\n              there is no genuine issue as to any material fact and that the\n              moving party is entitled to judgment as a matter of law.\n\nAccordingly, to prevail on a motion for summary judgment, the movant must demonstrate\n\nthat: (1) there is no genuine issue as to any material fact; and (2) that he is entitled to\n\njudgment as a matter of law. As to the first of these determinations, a fact is deemed\n\n\u201cmaterial\u201d if proof of its existence or non-existence would affect disposition of the case\n\nunder applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue\n\nof material fact is \u201cgenuine\u201d if the evidence offered is such that a reasonable jury might\n\nreturn a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has\n\nbeen raised, the court must construe all inferences and ambiguities against the movant and\n\nin favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).\n\n       The party seeking summary judgment shoulders the initial burden of demonstrating\n\nto the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett,\n\n477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the\n\nnon-moving party, to survive the motion for summary judgment, may not rest on the\n\nallegations averred in his pleadings. Rather, the non-moving party must demonstrate that\n\nspecific, material facts exist which give rise to a genuine issue. Id. at 324. Under this\n\nstandard, the existence of a mere scintilla of evidence in support of the plaintiff\u2019s position\n\n\n\n                                                3\n\fis insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252.\n\nLikewise, conclusory allegations or denials, without more, are insufficient to preclude the\n\ngranting of the summary judgment motion. Ross v. Communications Satellite Corp., 759\n\nF.2d 355, 365 (4th Cir. 1985). \u201cOnly disputes over facts that might affect the outcome of\n\nthe suit under the governing law will properly preclude the entry of summary judgment.\n\nFactual disputes that are irrelevant or unnecessary will not be counted.\u201d Anderson, 477\n\nU.S. at 248. Furthermore, Rule 56(e) provides in pertinent part:\n\n              When a motion for summary judgment is made and supported\n              as provided in this rule, an adverse party may not rest upon the\n              mere allegations or denials of the adverse party\u2019s pleadings,\n              but the adverse party\u2019s response, by affidavits or as otherwise\n              provided in this rule, must set forth specific facts showing that\n              there is a genuine issue for trial. If the adverse party does not\n              so respond, summary judgment, if appropriate, shall be entered\n              against the adverse party.\n\nFed.R.Civ.P. 56(e). Accordingly, when Rule 56(e) has shifted the burden of proof to the\n\nnon-movant, he must produce existence of every element essential to his action that he\n\nbears the burden of adducing at a trial on the merits.\n\n                                         ANALYSIS\n\nI.     ADA CLAIM\n\n       Under the ADA, \u201c[n]o covered entity shall discriminate against a qualified individual\n\nwith a disability because of the disability of such individual in regard to job application\n\nprocedures, the hiring, advancement, or discharge of employees, employee compensation,\n\njob training, and other terms, conditions, and privileges of employment.\u201d 42 U.S.C. \u00a7\n\n12112(a). At summary judgment, the defendant\u2019s exclusive objection to the plaintiff\u2019s ADA\n\nclaim is that it does not qualify as a \u201ccovered entity.\u201d Id. A \u201c[c]overed entity\u201d includes \u201can\n\nemployer, employment agency, labor organization, or joint-management committee.\u201d 42\n\nU.S.C. \u00a7 12111(2); see also Jones v. American Postal Workers Union, 192 F.3d 417, 423\n\n(4th Cir. 1999). The ADA defines \u201cemployer\u201d as \u201ca person engaged in an industry affecting\n\n                                              4\n\fcommerce who has 15 or more employees for each working day in each of 20 or more\n\ncalendar weeks in the current or preceding calendar year . . . .\u201d 42 U.S.C. \u00a7 12111(5)(A)\n\n(emphasis added). The \u201ccurrent\u201d calendar year is the year in which the alleged\n\ndiscrimination occurred, in this case 2007. See Binns v. The Primary Group, Inc., 23 F.\n\nSupp.2d 1363, 1366 (M.D. Fl. 1998); Vick v. Foote, Inc., 898 F. Supp. 330, 332 (E.D.\n\nVa.1995). It appears that the Fourth Circuit considers the question as to whether or not an\n\nentity qualifies as an \u201cemployer\u201d to be a jurisdictional one. Jones, 192 F.3d at 423. But the\n\ncourts of appeals are split. See Sharpe v. Jefferson Distributing Co., 148 F.3d 676, 677-78\n\n(7th Cir.1998) (holding that question of whether employer has more than fifteen employees\n\nso as to be subject to Title VII is not jurisdictional, but merits related).\n\n       The defendant has put forward evidence that it never employed 15 or more\n\nemployees for each work day in a calendar week during 2006-2007. (Blackwell Decl. \u00b6\u00b6\n\n1-5, Ex. H.) The plaintiff essentially concedes that the defendant employs no more than 13\n\nregular employees. (Pl. Resp. at 17.) The plaintiff argues, however, that the defendant\n\nshould be considered as having employed between 15 to 20 individuals in light of the\n\ndefendant\u2019s use of undocumented workers. In other words, the plaintiff contends that any\n\ncontracted illegal aliens should also be counted for purposes of \u201ccovered entity\u201d status.\n\n       In support, the plaintiff has put forward certain legal authorities of questionable\n\nrelevance to the inquiry, over which both parties spend some time debating.1 (See Pl.\n\n       1\n           As the plaintiff admits, none of his cited authorities actually consider whether\nundocumented workers should be counted when determining the 15 employee threshold.\nInstead, they concern the joint employer or integrated enterprise doctrines, which seem\nlargely inapposite here. (See Pl. Resp. at 15.) The Court itself has researched the issue\nindependently without success. The Court does not think that the argument advanced by\nthe plaintiff is unpersuasive on its face. It seems possible that this or other courts might find\nas the plaintiff proposes. If it truly is a matter of first impression (which the Court doubts but\ncannot determine), then the undersigned would not be bashful about resolving it. It seems,\nhowever, as will be discussed infra, that the issue is not squarely implicated because the\nplaintiff has not otherwise put forward evidence that 15 employees were employed for 20\ncalendar weeks, even if the documented workers could be rightly counted. The Court is,\ntherefore, reticent, as it always is, to reach out and resolve a matter, especially one so\napparently undeveloped, if unnecessary. For these same reasons, it is equally impractical\n\n                                                5\n\fResp. at 15-16.) The plaintiff has also made an effort to create issues of fact as to the\n\nusage of such undocumented workers. (Richardson Aff. \u00b6 13; Pl. Dep. at 234, 255-56, 284-\n\n85; Atwood Aff. \u00b6 4, 5.)    Again, the parties have expended significant energy both at\n\nsummary judgment and in opposing memorandum over a motion to strike the plaintiff\u2019s\n\naffidavit disputing the propriety of such evidence. [See Docs. 50, 65, 69.]\n\n       Notwithstanding the parties\u2019 disagreement, the Court believes these matters need\n\nnot be precisely resolved. As the defendant emphasizes, even conceding the presence of\n\nsome evidence that undocumented workers were employed by the defendant, and, further,\n\nthat the law would credit those individuals as \u201cemployees\u201d of the defendant for purposes of\n\nreaching the 15 employee threshold, the plaintiff has still not satisfied his burden at\n\nsummary judgment. Specifically, and as already discussed, to qualify as a covered entity\n\nthe defendant must have employed \u201c15 or more employees for each working day in each\n\nof 20 or more calendar weeks in the current or preceding calendar year . . . .\u201d 42 U.S.C. \u00a7\n\n12111(5)(A) (emphasis added). As to this requirement, the plaintiff has offered absolutely\n\nno evidence. At best, the plaintiff\u2019s evidence suggests that at some moment or moments\n\nduring the relevant time period, undocumented workers, in sufficient numbers, may have\n\nbeen used such that a total of 15 individuals or more were employed on that day or those\n\ndays. As the defendant characterizes it, at best, the plaintiff has offered a \u201csnapshot\u201d of\n\ntime. He has made no attempt to establish any degree of frequency much less the\n\nfrequency necessary to make his ADA claim viable. The plaintiff has offered no evidence\n\nthat would suggest that such relationship, in such numbers, existed for 20 or more calendar\n\nweeks in 2007. Even as the defendant raises this point in reply, the plaintiff sought no\n\nleave to sur-reply to it. It is the plaintiff\u2019s burden to so demonstrate. See Association of\n\n\nto consider whether certain loosely identified undocumented workers should be considered\nemployees as opposed to independent contractors of the defendant. Even conceding that\nthey are, the Court will address below the plaintiff\u2019s failure to establish the relevant time\nthreshold of 20 calendar weeks for these individuals.\n\n                                             6\n\fBusiness and Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (holding that to survive a motion\n\nfor summary judgment, a plaintiff bringing an ADA claim must carry his burden by a\n\npreponderance of the evidence). Other courts have dismissed ADA claims, where the\n\nplaintiff fails to carry that burden as to the defendant\u2019s total employees. See Binns, 23\n\nF.Supp.2d 1363.\n\n       The Court so recommends here.\n\nII.    Workers\u2019 Compensation Retaliatory Discharge Claim\n\n       South Carolina prohibits an employer from discharging or demoting an employee\n\nbecause the employee has instituted or caused to be instituted in good faith any proceeding\n\nunder South Carolina\u2019s Workers\u2019 Compensation Law. See S.C. Code \u00a741-1-80. The\n\nemployee carries the burden of proving that his discharge or demotion occurred because\n\nhe instituted proceedings under the South Carolina Workers\u2019 Compensation Law. S.C.\n\nCode \u00a7 41-1-80. To prove his claim, the plaintiff must show that (1) he instituted a workers\u2019\n\ncompensation claim, (2) he was discharged or demoted, and (3) a causal connection exists\n\nbetween the two events. Hinton v. Designer Ensembles, Inc., 540 S.E.2d 94, 97 (S.C.\n\n2000). The appropriate test for causation is the \u201cdeterminative factor\u201d test. Id. The\n\ndeterminative factor test requires the employee establish that he would not have been\n\ndischarged \u201cbut for\u201d the filing of his workers\u2019 compensation claim. Id. \u201cThe ultimate burden\n\nof persuading the trier of fact that the employer retaliatorily discharged the employee for\n\nexercising statutory rights under the Act remain at all times with the employee.\u201d Id. (omitting\n\nquotations).\n\n       As stated, the plaintiff suffered an on-the-job injury in July 2004. (Pl. Ex. A at\n\n000184, 00087-97.) He timely filed a workers\u2019 compensation claim, and the SC Workers\u2019\n\nCompensation Commission (\u201cWCC\u201d) issued an interim order on July 26, 2006, and its final\n\ndispositive order on August 27, 2007). (Pl. Ex. A at 000184, 87-97, 227-231.) This first\n\nWorkers\u2019 Compensation claim was finally resolved less than one week before the\n\n                                              7\n\ftermination decision was made. (Pl. Ex. A at 227-231; Pl. Ex B.) During the interim,\n\npending resolution of his claim, the plaintiff had been placed on light duty for lifting\n\nrestrictions, and he continued to work for the defendant. (Pl. Ex. A, at 000184, 87-97,\n\n227-231.)\n\n       In July 2007, the plaintiff was assaulted by a fellow employee and suffered another\n\nwork-related injury. (Pl. Ex. N; Plf. Aff. \u00b6 9; Pl. Ex. K.) The plaintiff filed a workers\u2019\n\ncompensation claim as to this matter as well. (Pl. Ex. K.) The plaintiff contends that he was\n\nnever granted worker\u2019s compensation for these injuries, in spite of the defendant\u2019s promise\n\nthat it would. (Pl. Dep. at 178; Pl. Aff. \u00b6 9.)\n\n       The plaintiff contends that the following evidence creates issues of fact from which\n\na factfinder could conclude that the institution of his worker\u2019s compensation claim was\n\nultimately the determinative factor in the decision of the defendant to terminate his\n\nemployment. First, the plaintiff contends that Parker Carlisle, the plaintiff\u2019s supervisor,\n\nmade negative comments regarding the plaintiff\u2019s back and knee restrictions. (Pl. Aff. \u00b6 4;\n\nPl. Dep. at 216, 239, 243, 251, 285.) The plaintiff also contends that on several instances\n\nCarlisle suggested that the plaintiff was faking the severity of his injuries. Id. Moreover, the\n\nplaintiff claims that there were several instances when Carlisle required him to violate the\n\nrestrictions and pick up excessive weight and/or bend excessively. (See Ex. N, Aff. Pl. at\n\n\u00b6 4; Pl. Dep. at 243,251.)\n\n       Even were the Court to credit these statements as permissible testimony for\n\nconsideration by the ultimate factfinder, which the defendant partially disputes, they do not\n\ncreate issues of fact as to whether the plaintiff\u2019s initiation of a worker\u2019s compensation claim\n\nresulted in his termination. These allegations may relate to the plaintiff\u2019s ADA claim that\n\nhe was discriminated against on account of some disability, which the Court has already\n\nconsidered and rejected, but they do not relate to, or say anything specifically about,\n\n\n\n                                                  8\n\fwhether the defendant was motivated by the plaintiff\u2019s actual filing of a worker\u2019s\n\ncompensation claim.\n\n       The plaintiff also contends that Carlisle specifically told him that the defendant might\n\nterminate the plaintiff due to increased premiums, his back injury, and his compensation\n\nclaim. (Pl. Aff. \u00b6 7; Pl. Dep. at 188-91; 225, 227, 228, 285.) Such statements would\n\ncertainly create issues of fact as to the causation element of the plaintiff\u2019s retaliation claim\n\nif established by admissible evidence. The evidence is somewhat confusing. First, the\n\nplaintiff contends that Carlisle made such statements to a Paul Mitchell at a job promotion\n\nlunch in 2007. Id. Second, the plaintiff contends that, in either the spring of 2005 (Pl. Aff.\n\n\u00b6 7) or late 2006/early 2007 (Pl. Dep. 188-90), Carlisle told him directly that he was causing\n\nthe defendant\u2019s premiums to go higher and that the insurance company wanted the plaintiff\n\nterminated. The Court will consider each in turn.\n\n       The plaintiff contends that Carlisle and Michael Kerley took Mitchell out to lunch to\n\noffer him the plaintiff\u2019s position. (Pl. Aff. \u00b6 7.) The plaintiff alleges that at the lunch Mitchell\n\nwas informed of the defendant\u2019s intent to terminate the plaintiff due to his workers\u2019\n\ncompensation claim. Id.        Shortly thereafter, Mitchell relayed those statements to the\n\nplaintiff. Mitchell\u2019s statements, however, are inadmissible hearsay. Fed. R. Evid. 801 (c),\n\n802. The statements do not qualify as the admission of a party-opponent, see Fed. R. Evid.\n\n801, because there is no evidence that they were made concerning \u201ca matter within the\n\nscope\u201d of his employment. Id. In other words, the decision to, and the reasons for the\n\nplaintiff\u2019s termination were not matters about which Mitchell had authority to speak on behalf\n\nof the defendant. See U.S. v. Portsmouth Paving Corp., 694 F.2d 312, 321-22 (4th Cir.\n\n1982). Importantly, the statement itself cannot be evidence that the matter is within the\n\npurview of his agency or employment with the defendant. Id. at 321 n.12. There is no\n\nevidence that Mitchell was asked to relay the statements or that it was otherwise in his job\n\nresponsibilities to do so. See id. at 321-22. Critically, the plaintiff himself does not contend\n\n                                                 9\n\fthat Mitchell\u2019s comments are admissible as an admission of a party opponent. [Doc. 65 at\n\n7-8.]\n\n        Instead the plaintiff contends that the statements (1) are being offered to show their\n\neffect on the listener, in this case the plaintiff, and (2) have independent legal significance\n\nin that they \u201cbear directly on a substantive issue in this lawsuit \u2013 why Defendant terminated\n\nPlaintiff.\u201d [Doc. 65 at 7, 8.] These arguments hardly merit consideration and frankly strain\n\nthe limits of permissible advocacy and candor to the Court. While it is true that hearsay\n\nstatements are admissible when offered for reasons other than their truthfulness, including\n\nthe reasons cited above, the plaintiff cannot reasonably believe such are the purposes here.\n\nThe plaintiff offers these statements precisely for their purported truthfulness \u2013 that the\n\nplaintiff\u2019s employment was indeed terminated for having filed for worker\u2019s compensation.\n\n\u201cIf any third party statement could be admitted merely because it was heard (and\n\n\u2018perceived\u2019) by the witness, the entirety of hearsay jurisprudence would be nullified.\u201d Hall\n\nv. C.I.A., 538 F. Supp. 2d 64, 69 (D.D.C. 2008) (rejecting arguments similar to the plaintiff\u2019s\n\nbut based on Fed. R. Evid. 701). The Court will not consider the statements of Mitchell\n\nbecause they would not be admissible at trial. See Fed. R. Civ. P. 56(e)(1).\n\n        Moreover, Mitchell has since sworn under oath that he never had any such\n\nconversations about the plaintiff\u2019s worker\u2019s compensation claim or health condition.\n\n(Mitchell Dep. at 19.)\n\n        The plaintiff, however, also contends that Carlisle made similar statements directly\n\nto the plaintiff and to a similar effect \u2013 that the plaintiff\u2019s workers\u2019 compensation claim was\n\nincreasing premiums and that the insurance company wanted him terminated. (Pl. Dep. at\n\n188-90.) Besides some apparent confusion over the date such statements were made\n\n(Compare id. with Pl. Aff. \u00b6 7), the statements were not otherwise witnessed and seem\n\ndubious in context. Why the insurance company, rather than the defendant, might want the\n\nplaintiff terminated, when it was the defendant\u2019s premiums which were ostensibly affected,\n\n                                              10\n\fis not clear. Moreover, the defendant has offered evidence that the insurance company at\n\nissue never actually provided workers\u2019 compensation coverage for the defendant.2\n\n(Hincapie Decl. \u00b6\u00b6 4-9; Carlisle Dep. at 36.) Of course these are considerations which go\n\nto the weight of the plaintiff\u2019s testimony; the Court may not resolve it at summary judgment.\n\n       Accordingly, the plaintiff has two pieces of evidence which would seem to create\n\nmaterial issues of fact. First, he has the temporal proximity of one week between the\n\nsettlement of his workers\u2019 compensation claim and his termination. (Pl. Ex. A at 227-231;\n\nPl. Ex B.) That proximity alone would not be enough in the face of a legitimate, non-\n\nretaliatory rationale for the termination of the plaintiff\u2019s employment, such as substandard\n\nperformance, as offered here. Hinton, 540 S.E.2d at 97; cf. Johnson v. J.P. Stevens & Co.,\n\nInc., 417 S.E.2d 527, 529 (S.C. 1992) (\u201cIn light of the conceded legitimate, nonretaliatory\n\nmotives for the termination, [the] proximity in time does not meet the employee's burden of\n\nproof.\u201d); Marr v. City of Columbia, 416 S.E.2d 615 (S.C. 1992) (rejecting retaliatory\n\ndischarge claim where only evidence suggesting retaliatory motive for discharge was\n\ntemporal proximity of claim to discharge) with Horn v. Davis Electrical Constructors, Inc.,\n\n416 S.E.2d 634, 636 (S.C. 1992) (finding that where temporal proximity of injury and\n\ndischarge existed, \u201cin addition to other retaliatory evidence in the record as well as\n\n[employer's] admission that evidence of retaliation existed,\u201d plaintiff established termination\n\nin violation of statute).\n\n       The plaintiff, however, has his own testimony, no matter how self-serving, which if\n\nbelieved might lead the ultimate factfinder3 to conclude that Carlisle, indeed, indicated that\n\n\n       2\n         KCC secured workers\u2019 compensation insurance from the Accident Fund Insurance\nCompany of America (\u201cAccident Fund\u201d), through its agent, Sullivan Company LLC\n(\u201cSullivan\u201d). (Hincapie Decl. \u00b6\u00b6 4-9; Carlisle Dep. at 33.)\n       3\n         It appears that a claim brought pursuant to Section 41-1-80 should be tried\nnonjury. See Johnson v. J.P. Stevens & Co., Inc., 417 S.E.2d 527, 529 (S.C. 1992).\nAccordingly, the ultimate factfinder in this case would be the district court rather than a jury.\nThe undersigned, however, does not believe that this fact alters the standard on summary\n\n                                               11\n\fthe defendant would terminate his employment for having filed a successful workers\u2019\n\ncompensation claim. Of course, depending on which testimony of the plaintiff is to be\n\nbelieved, such statements were made conceivably two years prior to the plaintiff\u2019s\n\ntermination. (See Pl. Aff. \u00b6 7.) A factfinder, however, might determine that the comment\n\nis still relevant insofar as the threat, made at a much earlier time, was realized only once\n\nthe plaintiff successfully secured payment on his claim. The defendant rejects that it had\n\nany knowledge that the plaintiff had settled his workers\u2019 compensation claim at the time his\n\nemployment was terminated (Summ J. at 13; Pl. Dep. at 193-94) but the plaintiff has\n\ntestified that he believes they did, id. The Court would cautiously suggest that the sheer\n\nproximity of one week would at least be circumstantial evidence from which the factfinder\n\nmight conclude that the defendant knew of the workers\u2019 compensation settlement and acted\n\nupon its earlier and alleged threat.\n\n       The Court is not compelled by the evidence. By its nature it is thin and of a self-\n\ndealing kind. But, the Court seems constrained to concede that, once on the stand, a\n\nfactfinder might credit a persuasive display by the plaintiff over all of the other\n\nconsiderations that make the story less than plausible on paper.\n\n       Notwithstanding these issues of fact, it seems that the plaintiff\u2019s Workers\u2019\n\nCompensation claim must still fail. As a final consideration, the defendant argues that the\n\nplaintiff has conceded that the defendant\u2019s professed legitimate and non-retaliatory motive\n\n\n\njudgment, under the circumstances. Although the Fourth Circuit has not precisely\naddressed the issue of whether a distinct nonjury, summary judgment standard exists, it has\nconcluded that where the credibility of witnesses remains at issue, as here, the matter\nshould not be resolved on summary judgment, even when the matter is to be tried nonjury.\nSee Hamilton v. Prudential Ins. Co. of America, 1990 WL 101366, at *3 (4th Cir. July 13,\n1990); cf. James v. City of Houston Texas, 48 Fed. Appx. 916 n.2 (5th Cir. 2002)\n(recognizing that Fifth Circuit precedent conflicts on whether the court may apply a different\nstandard at summary judgment in a nonjury case.) Issues of credibility should not be\nresolved \u201cwithout the benefit of live testimony.\u201d Hamilton, 1990 WL 101366, at *4. Because\nthe plaintiff\u2019s case largely turns on the credibility of his own testimony as to Carlisle\u2019s\nalleged comments, it seems that summary judgment would not be the proper posture at\nwhich to weigh that evidence.\n\n                                             12\n\ffor termination was true. Specifically, the defendant terminated the plaintiff\u2019s employment\n\nfor substandard performance, a physical altercation with Mitchell, and poor attendance.\n\n(Carlisle Dep. at 38, 78-79; Kerley Dep. at 4.)\n\n       The Court would agree that the plaintiff essentially confessed to substandard\n\nperformance and some absenteeism, although maybe not as effectively as the defendant\n\nwould recommend. (Pl. Dep. at 199-200, 205, 290-99.) The plaintiff responds that he did\n\nnot admit to any unexcused absences and only admitted to substandard performance to\n\nthe extent non-job related, emergent health issues - - swollen feet - - impacted his ability\n\nto stand. (Pl. Dep. at 290-99.)\n\n       Unfortunately for the plaintiff, such a qualification is not effective. \u201c[W]illful or habitual\n\ntardiness or absence\u201d and \u201cfailure to meet established work standards\u201d are not merely\n\nlegitimate, non-discriminatory reasons; they are affirmative defenses supplied expressly by\n\nthe statute. S.C. Code Ann. \u00a7 41-1-80 (\u201cAny employer shall have as an affirmative defense\n\nto this section the following: willful or habitual tardiness or absence from work; being\n\ndisorderly or intoxicated while at work; destruction of any of the employer's property; failure\n\nto meet established employer work standards; malingering; embezzlement or larceny of the\n\nemployer's property; violating specific written company policy for which the action is a stated\n\nremedy of the violation.\u201d). Accordingly, if the defendant establishes either affirmative\n\ndefense by a preponderance of the evidence, the plaintiff\u2019s claim is defeated. Affirmative\n\ndefenses, by their nature, \u201care complete defenses that, once proven by the defendant,\n\nnegate liability,\u201d notwithstanding the plaintiff\u2019s ability otherwise to prove all elements of his\n\nclaim. U.S. v. Davenport, 519 F.3d 940, 945 (9th Cir. 2008) (criminal case); Horn, 395\n\nS.E.2d at 727 (\u201cAn employer may prove as an affirmative defense that an employee failed\n\nto meet established work standards because he could not perform the physical\n\nrequirements of the job.\u201d) Discharge for failure to meet work standards may be established\n\n\n\n                                                13\n\fas a bona fide defense if an employee is so disabled as not to be able to carry out the\n\nduties of the job.\u201d)\n\n       Some issues of fact likely remain as to the accusation of absenteeism based on the\n\nplaintiff\u2019s representation that essentially all of the alleged absences were excused, such that\n\nthe Court cannot not resolve the defendant\u2019s establishment of the defense. (See Pl. Dep.\n\nat 298.) As to his alleged subpar performance, however, his qualified admission seems\n\nfatal. (See Pl. Dep. at 199-200.) The plaintiff expressly referred to his performance as\n\n\u201csub-par\u201d (Pl. Dep. at 200) and admitted that the \u201cperformance of [his] job was down\n\nbecause of [his] feet.\u201d (Pl. Dep. at 290 (emphasis added).) The fact that the plaintiff may\n\nhave had some good reason, specifically his health-related foot issues, is of no moment.\n\nThe plaintiff\u2019s foot issues were not job-related and, therefore, unassociated with his workers\u2019\n\ncompensation claims. (Pl. Resp. at 8; Pl. Dep. at 196-99); cf. Horn, 395 S.E.2d at 727-28\n\nmodified in relevant part by Horn v. Davis Elec. Constructors, Inc., 416 S.E.2d 634 (S.C.\n\n1992) (involving attempted application of the affirmative defense where the injury that\n\ncaused poor performance was the same as the one which formed the basis for the workers\u2019\n\ncompensation claim). The defendant has also submitted its own evidence of the plaintiff\u2019s\n\nsubstandard performance during this time. (See Carlisle Dep. at 73-75; Sadler Decl. Ex.\n\n\u00b6\u00b6 1-10; Bailey Decl. G \u00b6\u00b6 1-12.) Additionally, the plaintiff\u2019s own acknowledgment that he\n\nwas not performing to expectations seems to suggest that the standard for his work was\n\nestablished at least sufficiently to permit him to know when he had failed it. See Horn, 395\n\nS.E.2d at 727-28. Accordingly, it seems that no issues of fact remain as to the plaintiff\u2019s\n\nperformance and that the defendant has established at least one of its two affirmative\n\ndefenses absolutely such that the plaintiff\u2019s claim is defeated. See Hinton, 540 S.E.2d at\n\n99 (proof of affirmative defense by employee admission dispenses of retaliatory motive\n\nclaim even when discharge is seven days after filing of workers\u2019 compensation claim);\n\nJohnson, 417 S.E.2d at 529.\n\n                                              14\n\fIII.   Alternative Recommendation\n\n       If the district court adopts the recommendation as to the plaintiff\u2019s federal claims but\n\nrejects the recommendation as to the state law claim, it is within the district court\u2019s\n\ndiscretion to decline to exercise jurisdiction over the plaintiff\u2019s state law claim for retaliation.\n\nSee 28 U.S.C. \u00a7 1367(c); Tripp v. Charlie Falk's Auto Wholesale Inc., 290 Fed. Appx. 622,\n\n632 (4th Cir. 2008); see, e.g., Patterson v. City of Columbia, 2003 WL 23901761, at *5\n\n(D.S.C. Dec 29, 2003) (\u201cPatterson has raised various state law claims against all\n\nDefendants. Because the federal claims must be dismissed, the court declines to exercise\n\njurisdiction over the remaining state law claims.\u201d) If the district court so chooses, the\n\ndismissal would be without prejudice to any refiling in state court of that claim. It does not\n\nappear that removal and jurisdiction in this Court was based on a diversity of citizenship of\n\nthe parties. [See Doc. 1.]\n\n                  AMENDED CONCLUSION AND RECOMMENDATION\n\n       Wherefore, based upon the foregoing, the Court recommends that the defendant\u2019s\n\nmotion for summary judgment [Doc. 36] be GRANTED and all claims dismissed with\n\nprejudice.\n\n               IT IS SO RECOMMENDED.\n\n\n                                                        s/Bruce H. Hendricks\n                                                        United States Magistrate Judge\nDecember 29, 2009\nGreenville, South Carolina\n\n\n\n\n                                                15\n\f","ocr_status":2,"date_upload":null,"document_number":"90","attachment_number":null,"pacer_doc_id":"16303886963","is_available":true,"is_free_on_pacer":true,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2017-04-20T04:20:39.086240-07:00","date_modified":"2017-05-10T21:06:28.424798-07:00","date_filed":"2009-12-29","time_filed":null,"entry_number":90,"recap_sequence_number":"2009-12-29.001","pacer_sequence_number":null,"description":" AMENDED REPORT AND RECOMMENDATIONS re  36  MOTION for Summary Judgment filed by KC Concepts LLC. The Court recommends that the defendantsmotion for summary judgment [Doc. 36] be GRANTED and all claims dismissed withprejudice.  Objections to R&R due by 1/15/2010.  Signed by Magistrate Judge Bruce Howe Hendricks on 12/29/09. (jtho, )","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/16665080/","id":16665080,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4885549/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/17510549/","id":17510549,"tags":[],"absolute_url":"/docket/4885549/82/richardson-v-kc-concepts-llc/","date_created":"2017-04-20T03:41:07.157376-07:00","date_modified":"2018-07-10T22:27:31.016074-07:00","sha1":"87a0a05694434366ff93a17f85f7a6ed29ae6c60","page_count":13,"file_size":85911,"filepath_local":"recap/gov.uscourts.scd.161760/gov.uscourts.scd.161760.82.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.scd.161760/gov.uscourts.scd.161760.82.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"                  IN THE DISTRICT COURT OF THE UNITED STATES\n                      FOR THE DISTRICT OF SOUTH CAROLINA\n                              GREENVILLE DIVISION\n\n\nBrian Richardson,                           )\n                                            )      Civil Action No. 6:08-3186-HMH-BHH\n                             Plaintiff,     )\n                                            )\n           vs.                              )    REPORT OF MAGISTRATE JUDGE\n                                            )\nK.C. Concepts, LLC,                         )\n                                            )\n                             Defendant.     )\n                                            )\n\n\n       This matter is before the Court on the defendant\u2019s motion for summary judgment\n\npursuant to Federal Rule of Civil Procedure 56. The plaintiff has pled causes of action for\n\ninterference with Employee Retirement Income Security Act (\u201cERISA\u201d) rights; discriminatory\n\ndischarge under the Americans with Disabilities Act (\u201cADA\u201d); and retaliatory discharge under\n\nSouth Carolina Code Section 41-1-80 for filing a workers\u2019 compensation claim. The plaintiff,\n\nhowever, has expressly abandoned his claim pursuant to ERISA, which will, therefore, not\n\nbe considered. (Pl. Resp. at 1.)\n\n       Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and\n\nLocal Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases\n\nare referred to a United States Magistrate Judge for consideration.\n\n                                     FACTS PRESENTED\n\n       In approximately 1997, the plaintiff began working as a carpenter for Carlisle\n\nConstruction, a residential framing and remodeling contractor. (Pl. Dep. at 121.) Carlisle\n\nConstruction was the sole proprietorship of Parker Carlisle. (Carlisle Dep. at 6.) While\n\nworking for Carlisle Construction in 2004, the plaintiff fell off of a ladder, injuring his\n\nknee and back. (Pl. Dep. at 129-132). The plaintiff filed a workers\u2019 compensation claim\n\nwhile still working for Carlisle Construction, as a result of those injuries. (Pl. Dep. at 132,\n\f134.) Carlisle Construction\u2019s workers\u2019 compensation insurance carrier was The South\n\nCarolina Home Builders\u2019 Self Insured Fund (\u201cSCHBSIF\u201d). (Carlisle Dep. at 33; Pl. Dep. at\n\n228-229.)\n\n       In April 2005, Carlisle Construction discontinued its operations. Carlisle decided\n\nto go into business with a Michael Kerley. They formed the defendant entity, K.C Concepts,\n\nLLC. (Carlisle Dep. at 6-7.) The defendant is also in the residential framing and remodeling\n\nbusiness. (Carlisle Tr. 7).\n\n       The defendant contends that the plaintiff worked successfully until the spring of\n\n2007, when his attendance, performance, and attitude deteriorated. (Kerley Dep. at 4, 18-\n\n19, 27-28; Carlisle Dep. at 73-75, 107; Pl. Dep. at 195-196, 203-05.) Additionally, in July\n\n2007, the plaintiff was involved in an altercation with Paul Mitchell, a KCC employee he\n\nsupervised. (Pl. Dep. at 154-155; Carlisle Dep. at 40-42, 67-68.)           The plaintiff filed a\n\nsecond workers\u2019 compensation claim as to this matter as well. (Pl. Ex. K.)\n\n       Based upon the plaintiff\u2019s alleged substandard performance, his altercation with\n\nMitchell, and his poor attendance, Carlisle and Kerley decided to terminate the plaintiff\u2019s\n\nemployment. (Carlisle Dep. at 38, 78-79; Kerley Dep. at 4.) The plaintiff\u2019s employment was\n\nterminated on September 14, 2007. (Pl. Dep. at 300.)\n\n       The plaintiff contends that his termination was actually in retaliation to his having filed\n\nfor workers\u2019 compensation and the effect those payments would have on the insurance\n\npremiums of the defendant.\n\n                                     APPLICABLE LAW\n\n              Federal Rule of Civil Procedure 56(c) states, as to a party who has moved for\n\nsummary judgment:\n\n              The judgment sought shall be rendered forthwith if the\n              pleadings, depositions, answers to interrogatories, and\n              admissions on file, together with the affidavits, if any, show that\n              there is no genuine issue as to any material fact and that the\n              moving party is entitled to judgment as a matter of law.\n\n                                                2\n\fAccordingly, to prevail on a motion for summary judgment, the movant must demonstrate\n\nthat: (1) there is no genuine issue as to any material fact; and (2) that he is entitled to\n\njudgment as a matter of law. As to the first of these determinations, a fact is deemed\n\n\u201cmaterial\u201d if proof of its existence or non-existence would affect disposition of the case\n\nunder applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue\n\nof material fact is \u201cgenuine\u201d if the evidence offered is such that a reasonable jury might\n\nreturn a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has\n\nbeen raised, the court must construe all inferences and ambiguities against the movant and\n\nin favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).\n\n       The party seeking summary judgment shoulders the initial burden of demonstrating\n\nto the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett,\n\n477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the\n\nnon-moving party, to survive the motion for summary judgment, may not rest on the\n\nallegations averred in his pleadings. Rather, the non-moving party must demonstrate that\n\nspecific, material facts exist which give rise to a genuine issue. Id. at 324. Under this\n\nstandard, the existence of a mere scintilla of evidence in support of the plaintiff\u2019s position\n\nis insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252.\n\nLikewise, conclusory allegations or denials, without more, are insufficient to preclude the\n\ngranting of the summary judgment motion. Ross v. Communications Satellite Corp., 759\n\nF.2d 355, 365 (4th Cir. 1985). \u201cOnly disputes over facts that might affect the outcome of\n\nthe suit under the governing law will properly preclude the entry of summary judgment.\n\nFactual disputes that are irrelevant or unnecessary will not be counted.\u201d Anderson, 477\n\nU.S. at 248. Furthermore, Rule 56(e) provides in pertinent part:\n\n              When a motion for summary judgment is made and supported\n              as provided in this rule, an adverse party may not rest upon the\n              mere allegations or denials of the adverse party\u2019s pleadings,\n              but the adverse party\u2019s response, by affidavits or as otherwise\n              provided in this rule, must set forth specific facts showing that\n\n                                               3\n\f              there is a genuine issue for trial. If the adverse party does not\n              so respond, summary judgment, if appropriate, shall be entered\n              against the adverse party.\n\nFed.R.Civ.P. 56(e). Accordingly, when Rule 56(e) has shifted the burden of proof to the\n\nnon-movant, he must produce existence of every element essential to his action that he\n\nbears the burden of adducing at a trial on the merits.\n\n                                          ANALYSIS\n\nI.     ADA CLAIM\n\n       Under the ADA, \u201c[n]o covered entity shall discriminate against a qualified individual\n\nwith a disability because of the disability of such individual in regard to job application\n\nprocedures, the hiring, advancement, or discharge of employees, employee compensation,\n\njob training, and other terms, conditions, and privileges of employment.\u201d 42 U.S.C. \u00a7\n\n12112(a). At summary judgment, the defendant\u2019s exclusive objection to the plaintiff\u2019s ADA\n\nclaim is that it does not qualified as a \u201ccovered entity.\u201d Id. A \u201c[c]overed entity\u201d includes \u201can\n\nemployer, employment agency, labor organization, or joint-management committee.\u201d 42\n\nU.S.C. \u00a7 12111(2); see also Jones v. American Postal Workers Union, 192 F.3d 417, 423\n\n(4th Cir. 1999). The ADA defines \u201cemployer\u201d as \u201ca person engaged in an industry affecting\n\ncommerce who has 15 or more employees for each working day in each of 20 or more\n\ncalendar weeks in the current or preceding calendar year . . . .\u201d 42 U.S.C. \u00a7 12111(5)(A)\n\n(emphasis added). The \u201ccurrent\u201d calendar year is the year in which the alleged\n\ndiscrimination occurred, in this case 2007. See Binns v. The Primary Group, Inc., 23 F.\n\nSupp.2d 1363, 1366 (M.D. Fl. 1998); Vick v. Foote, Inc., 898 F. Supp. 330, 332 (E.D.\n\nVa.1995). It appears that the Fourth Circuit considers the question as to whether or not an\n\nentity qualifies as an \u201cemployer\u201d to be a jurisdictional one. Jones, 192 F.3d at 423. But the\n\ncourts of appeals are split. See Sharpe v. Jefferson Distributing Co., 148 F.3d 676, 677-78\n\n(7th Cir.1998) (holding that question of whether employer has more than fifteen employees\n\nso as to be subject to Title VII is not jurisdictional, but merits related).\n\n                                                4\n\f       The defendant has put forward evidence that it never employed 15 or more\n\nemployees for each work day in a calendar week during 2006-2007. (Blackwell Decl. \u00b6\u00b6\n\n1-5, Ex. H.) The plaintiff essentially concedes that the defendant employs no more than 13\n\nregular employees. (Pl. Resp. at 17.) The plaintiff argues, however, that the defendant\n\nshould be considered as having employed between 15 to 20 individuals in light of the\n\ndefendant\u2019s use of undocumented workers. In other words, the plaintiff contends that any\n\ncontracted illegal aliens should also be counted for purposes of \u201ccovered entity\u201d status.\n\n       In support, the plaintiff has put forward certain legal authorities of questionable\n\nrelevance to the inquiry, over which both parties spend some time debating.1 (See Pl.\n\nResp. at 15-16.) The plaintiff has also made an effort to create issues of fact as to the\n\nusage of such undocumented workers. (Richardson Aff. \u00b6 13; Pl. Dep. at 234, 255-56, 284-\n\n85; Atwood Aff. \u00b6 4, 5.)      Again, the parties have expended significant energy both at\n\nsummary judgment and in opposing memorandum over a motion to strike the plaintiff\u2019s\n\naffidavit disputing the propriety of such evidence. [See Docs. 50, 65, 69.]\n\n       Notwithstanding the parties\u2019 disagreement, the Court believes these matters need\n\nnot be precisely resolved. As the defendant emphasizes, even conceding the presence of\n\nsome evidence that undocumented workers were employed by the defendant, and, further,\n\n\n       1\n           As the plaintiff admits, none of his cited authorities actually consider whether\nundocumented workers should be counted when determining the 15 employee threshold.\nInstead, they concern the joint employer or integrated enterprise doctrines, which seem\nlargely inapposite here. (See Pl. Resp. at 15.) The Court itself has researched the issue\nindependently without success. The Court does not think that the argument advanced by\nthe plaintiff is unpersuasive on its face. It seems possible that this or other courts might find\nas the plaintiff proposes. If it truly is a matter of first impression (which the Court doubts but\ncannot determine), then the undersigned would not be bashful about resolving it. It seems,\nhowever, as will be discussed infra, that the issue is not squarely implicated because the\nplaintiff has not otherwise put forward evidence that 15 employees were employed for 20\ncalendar weeks, even if the documented workers could be rightly counted. The Court is,\ntherefore, reticent, as it always is, to reach out and resolve a matter, especially one so\napparently undeveloped, if unnecessary. For these same reasons, it is equally impractical\nto consider whether certain loosely identified undocumented workers should be considered\nemployees as opposed to independent contractors of the defendant. Even conceding that\nthey are, the Court will address below the plaintiff\u2019s failure to establish the relevant time\nthreshold of 20 calendar weeks for these individuals.\n\n                                                5\n\fthat the law would credit those individuals as \u201cemployees\u201d of the defendant for purposes of\n\nreaching the 15 employee threshold, the plaintiff has still not satisfied his burden at\n\nsummary judgment. Specifically, and as already discussed, to qualify as a covered entity\n\nthe defendant must have employed \u201c15 or more employees for each working day in each\n\nof 20 or more calendar weeks in the current or preceding calendar year . . . .\u201d 42 U.S.C. \u00a7\n\n12111(5)(A) (emphasis added). As to this requirement, the plaintiff has offered absolutely\n\nno evidence. At best, the plaintiff\u2019s evidence suggests that at some moment or moments\n\nduring the relevant time period, undocumented workers, in sufficient numbers, may have\n\nbeen used such that a total of 15 individuals or more were employed on that day or those\n\ndays. As the defendant characterizes it, at best, the plaintiff has offered a \u201csnapshot\u201d of\n\ntime. He has made no attempt to establish any degree of frequency much less the\n\nfrequency necessary to make his ADA claim viable. The plaintiff has offered no evidence\n\nthat would suggest that such relationship, in such numbers, existed for 20 or more calendar\n\nweeks in 2007. Even as the defendant raises this point in reply, the plaintiff sought no\n\nleave to sur-reply to it. It is the plaintiff\u2019s burden to so demonstrate. See Association of\n\nBusiness and Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (holding that to survive a motion\n\nfor summary judgment, a plaintiff bringing an ADA claim must carry his burden by a\n\npreponderance of the evidence). Other courts have dismissed ADA claims, where the\n\nplaintiff fails to carry that burden as to the defendant\u2019s total employees. See Binns, 23\n\nF.Supp.2d 1363.\n\n       The Court so recommends here.\n\nII.    Workers\u2019 Compensation Retaliatory Discharge Claim\n\n       South Carolina prohibits an employer from discharging or demoting an employee\n\nbecause the employee has instituted or caused to be instituted in good faith any proceeding\n\nunder South Carolina\u2019s Workers\u2019 Compensation Law. See S.C. Code \u00a741-1-80. The\n\nemployee carries the burden of proving that his discharge or demotion occurred because\n\n                                             6\n\fhe instituted proceedings under the South Carolina Workers\u2019 Compensation Law. S.C.\n\nCode \u00a7 41-1-80. To prove his claim, the plaintiff must show that (1) he instituted a workers\u2019\n\ncompensation claim, (2) he was discharged or demoted, and (3) a causal connection exists\n\nbetween the two events. Hinton v. Designer Ensembles, Inc., 540 S.E.2d 94, 97 (S.C.\n\n2000). The appropriate test for causation is the \u201cdeterminative factor\u201d test. Id. The\n\ndeterminative factor test requires the employee establish that he would not have been\n\ndischarged \u201cbut for\u201d the filing of his workers\u2019 compensation claim. Id. \u201cThe ultimate burden\n\nof persuading the trier of fact that the employer retaliatorily discharged the employee for\n\nexercising statutory rights under the Act remain at all times with the employee.\u201d Id. (omitting\n\nquotations).\n\n       As stated, the plaintiff suffered an on-the-job injury in July 2004. (Pl. Ex. A at\n\n000184, 00087-97.) He timely filed a workers\u2019 compensation claim, and the SC Workers\u2019\n\nCompensation Commission (\u201cWCC\u201d) issued an interim order on July 26, 2006, and its final\n\ndispositive order on August 27, 2007). (Pl. Ex. A at 000184, 87-97, 227-231.) This first\n\nWorkers\u2019 Compensation claim was finally resolved less than one week before the\n\ntermination decision was made. (Pl. Ex. A at 227-231; Pl. Ex B.) During the interim,\n\npending resolution of his claim, the plaintiff had been placed on light duty for lifting\n\nrestrictions, and he continued to work for the defendant. (Pl. Ex. A, at 000184, 87-97,\n\n227-231.)\n\n       In July 2007, the plaintiff was assaulted by a fellow employee and suffered another\n\nwork-related injury. (Pl. Ex. N; Plf. Aff. \u00b6 9; Pl. Ex. K.) The plaintiff filed a workers\u2019\n\ncompensation claim as to this matter as well. (Pl. Ex. K.) The plaintiff contends that he was\n\nnever granted worker\u2019s compensation for these injuries, in spite of the defendant\u2019s promise\n\nthat it would. (Pl. Dep. at 178; Pl. Aff. \u00b6 9.)\n\n       The plaintiff contends that the following evidence creates issues of fact from which\n\na jury could find that the institution of his worker\u2019s compensation was ultimately the\n\n                                                  7\n\fdeterminative factor in the decision of the defendant to terminate his employment. First,\n\nthe plaintiff contends that Parker Carlisle, the plaintiff\u2019s supervisor, made negative\n\ncomments regarding the plaintiff\u2019s back and knee restrictions. (Pl. Aff. \u00b6 4; Pl. Dep. at 216,\n\n239, 243, 251, 285.)      The plaintiff also contends that on several instances Carlisle\n\nsuggested that the plaintiff was faking the severity of his injuries. Id. Moreover, the plaintiff\n\nclaims that there were several instances when Carlisle required him to violate the\n\nrestrictions and pick up excessive weight and/or bend excessively. (See Ex. N, Aff. Pl. at\n\n\u00b6 4; Pl. Dep. at 243,251.)\n\n       Even were the Court to credit these statements as permissible testimony for\n\nconsideration by the jury, which the defendant partially disputes, they do not create issues\n\nof fact as to whether the plaintiff\u2019s initiation of a worker\u2019s compensation claim resulted in his\n\ntermination.   These allegations may relate to the plaintiff\u2019s ADA claim that he was\n\ndiscriminated against on account of some disability, which the Court has already considered\n\nand rejected, but they do not relate to, or say anything specifically about, whether the\n\ndefendant was motivated by the plaintiff\u2019s actual filing of a worker\u2019s compensation claim.\n\n       The plaintiff also contends that Carlisle specifically told him that the defendant might\n\nterminate the plaintiff due to increased premiums, his back injury, and his compensation\n\nclaim. (Pl. Aff. \u00b6 7; Pl. Dep. at 188-91; 225, 227, 228, 285.) Such statements would\n\ncertainly create issues of fact as to the causation element of the plaintiff\u2019s retaliation claim\n\nif established by admissible evidence. The evidence is somewhat confusing. First, the\n\nplaintiff contends that Carlisle made such statements to a Paul Mitchell at a job promotion\n\nlunch in 2007. Id. Second, the plaintiff contends that, in either the spring of 2005 (Pl. Aff.\n\n\u00b6 7) or late 2006/early 2007 (Pl. Dep. 188-90), Carlisle told him directly that he was causing\n\nthe defendant\u2019s premiums to go higher and that the insurance company wanted the plaintiff\n\nterminated. The Court will consider each in turn.\n\n\n\n                                               8\n\f        The plaintiff contends that Carlisle and Michael Kerley took Mitchell out to lunch to\n\noffer him the plaintiff\u2019s position. (Pl. Aff. \u00b6 7.) The plaintiff alleges that at the lunch Mitchell\n\nwas informed of the defendant\u2019s intent to terminate the plaintiff due to his workers\u2019\n\ncompensation claim. Id.        Shortly thereafter, Mitchell relayed those statements to the\n\nplaintiff. Mitchell\u2019s statements, however, are inadmissible hearsay. Fed. R. Evid. 801 (c),\n\n802. The statements do not qualify as the admission of a party-opponent, see Fed. R. Evid.\n\n801, because there is no evidence that they were made concerning \u201ca matter within the\n\nscope\u201d of his employment. Id. In other words, the decision to, and the reasons for the\n\nplaintiff\u2019s termination were not matters about which Mitchell had authority to speak on behalf\n\nof the defendant. See U.S. v. Portsmouth Paving Corp., 694 F.2d 312, 321-22 (4th Cir.\n\n1982). Importantly, the statement itself cannot be evidence that the matter is within the\n\npurview of his agency or employment with the defendant. Id. at 321 n.12. There is no\n\nevidence that Mitchell was asked to relay the statements or that it was otherwise in his job\n\nresponsibilities to do so. See id. at 321-22. Critically, the plaintiff himself does not contend\n\nthat Mitchell\u2019s comments are admissible as an admission of a party opponent. [Doc. 65 at\n\n7-8.]\n\n        Instead the plaintiff contends that the statements (1) are being offered to show their\n\neffect on the listener, in this case the plaintiff, and (2) have independent legal significance\n\nin that they \u201cbear directly on a substantive issue in this lawsuit \u2013 why Defendant terminated\n\nPlaintiff.\u201d [Doc. 65 at 7, 8.] These arguments hardly merit consideration and frankly strain\n\nthe limits of permissible advocacy and candor to the Court. While it is true that hearsay\n\nstatements are admissible when offered for reasons other than their truthfulness, including\n\nthe reasons cited above, the plaintiff cannot reasonably believe such are the purposes here.\n\nThe plaintiff offers these statements precisely for their purported truthfulness \u2013 that the\n\nplaintiff\u2019s employment was indeed terminated for having filed for worker\u2019s compensation.\n\n\u201cIf any third party statement could be admitted merely because it was heard (and\n\n                                                 9\n\f\u2018perceived\u2019) by the witness, the entirety of hearsay jurisprudence would be nullified.\u201d Hall\n\nv. C.I.A., 538 F. Supp. 2d 64, 69 (D.D.C. 2008) (rejecting arguments similar to the plaintiff\u2019s\n\nbut based on Fed. R. Evid. 701). The Court will not consider the statements of Mitchell\n\nbecause they would not be admissible at trial. See Fed. R. Civ. P. 56(e)(1).\n\n       Moreover, Mitchell has since sworn under oath that he never had any such\n\nconversations about the plaintiff\u2019s worker\u2019s compensation claim or health condition.\n\n(Mitchell Dep. at 19.)\n\n       The plaintiff, however, also contends that Carlisle made similar statements directly\n\nto the plaintiff and to a similar effect \u2013 that the plaintiff\u2019s workers\u2019 compensation claim was\n\nincreasing premiums and that the insurance company wanted him terminated. (Pl. Dep. at\n\n188-90.) Besides some apparent confusion over the date such statements were made\n\n(Compare id. with Pl. Aff. \u00b6 7), the statements were not otherwise witnessed and seem\n\ndubious in context. Why the insurance company, rather than the defendant, might want the\n\nplaintiff terminated, when it was the defendant\u2019s premiums which were ostensibly affected,\n\nis not clear. Moreover, the defendant has offered evidence that the insurance company at\n\nissue never actually provided workers\u2019 compensation coverage for the defendant.2\n\n(Hincapie Decl. \u00b6\u00b6 4-9; Carlisle Dep. at 36.) Of course these are considerations which go\n\nto the weight of the plaintiff\u2019s testimony; the Court may not resolve it at summary judgment.\n\n       Accordingly, the plaintiff has two pieces of evidence which would seem to save his\n\nworkers\u2019 compensation claim. First, he has the temporal proximity of one week between\n\nthe settlement of his workers\u2019 compensation claim and his termination. (Pl. Ex. A at\n\n227-231; Pl. Ex B.) That proximity alone would not be enough in the face of a legitimate,\n\nnon-retaliatory rationale for the termination of the plaintiff\u2019s employment, such as\n\n\n\n       2\n         KCC secured workers\u2019 compensation insurance from the Accident Fund Insurance\nCompany of America (\u201cAccident Fund\u201d), through its agent, Sullivan Company LLC\n(\u201cSullivan\u201d). (Hincapie Decl. \u00b6\u00b6 4-9; Carlisle Dep. at 33.)\n\n                                              10\n\fsubstandard performance, as offered here. Hinton, 540 S.E.2d at 97; cf. Johnson v. J.P.\n\nStevens & Co., Inc., 417 S.E.2d 527, 529 (S.C. 1992) (\u201cIn light of the conceded legitimate,\n\nnonretaliatory motives for the termination, [the] proximity in time does not meet the\n\nemployee's burden of proof.\u201d); Marr v. City of Columbia, 416 S.E.2d 615 (S.C. 1992)\n\n(rejecting retaliatory discharge claim where only evidence suggesting retaliatory motive for\n\ndischarge was temporal proximity of claim to discharge) with Horn v. Davis Electrical\n\nConstructors, Inc., 416 S.E.2d 634, 636 (S.C. 1992) (finding that where temporal proximity\n\nof injury and discharge existed, \u201cin addition to other retaliatory evidence in the record as\n\nwell as [employer's] admission that evidence of retaliation existed,\u201d plaintiff established\n\ntermination in violation of statute).\n\n       The plaintiff, however, has his own testimony, no matter how self-serving, which if\n\nbelieved might lead a jury to believe that Carlisle, in fact, indicated that the defendant would\n\nterminate his employment for having filed a successful workers\u2019 compensation claim. Of\n\ncourse, depending on which testimony of the plaintiff is to be believed, such statements\n\nwere made conceivably two years prior to the plaintiff\u2019s termination. (See Pl. Aff. \u00b6 7.) A\n\njury, however, might contend that the comment is still relevant insofar as the threat, made\n\nat a much earlier time, was realized only once the plaintiff successfully secured payment\n\non his claim. The defendant rejects that it had any knowledge that the plaintiff had settled\n\nhis workers\u2019 compensation claim at the time his employment was terminated (Summ J. at\n\n13; Pl. Dep. at 193-94) but the plaintiff has testified that he believes they did, id. The Court\n\nwould cautiously suggest that the sheer proximity of one week would at least be\n\ncircumstantial evidence from which a jury might conclude that the defendant knew of the\n\nworkers\u2019 compensation settlement and acted upon its earlier and alleged threat.\n\n       The Court is not compelled by the evidence. By its nature it is thin and of a self-\n\ndealing kind. But, the Court seems constrained to concede that, once on the stand, a\n\n\n\n                                              11\n\freasonable jury might credit a persuasive display by the plaintiff over all of the other\n\nconsiderations that make the story less than plausible on paper.\n\n       As a final consideration, the defendant argues that the plaintiff\u2019s claim must fail\n\nbecause he has conceded that the defendant\u2019s professed legitimate and non-retaliatory\n\nmotive for termination was true. Specifically, the defendant terminated the plaintiff\u2019s\n\nemployment for substandard performance, a physical altercation with Mitchell, and poor\n\nattendance. (Carlisle Dep. at 38, 78-79; Kerley Dep. at 4.) The Court would agree that the\n\nplaintiff essentially confessed to substandard performance and some absenteeism,\n\nalthough maybe not as effectively as the defendant would recommend. (Pl. Dep. at 199-\n\n200, 205.) The problem, however, is that the determinative factor test for causation does\n\nnot require proof that the improper and retaliatory reason was the sole one. See Wallace\n\nv. Milliken & Co., 406 S.E.2d 358, 360 (S.C. 1991). So while the plaintiff may have been\n\nfired in part because of performance related issues, if he would not have been terminated\n\n\u201cbut for\u201d his workers\u2019 compensation claim, he has satisfied the proof requirement. See id.\n\nAccordingly, evidence of the plaintiff\u2019s agreement with certain performance related\n\naccusations cannot be dispositive of the matter in light of his evidence that the workers\u2019\n\ncompensation claim was the real and motivating factor, without which his termination would\n\nnot have occurred. To the Court, the call is close. It seems proper, as a matter of law, that\n\na jury make it.\n\nIII.   Alternative Recommendation\n\n       Having recommended dismissal of the plaintiff\u2019s federal claims against the defendant\n\npursuant to ERISA and the ADA, it is within the district court\u2019s discretion to decline to\n\nexercise jurisdiction over the plaintiff\u2019s state law claim for retaliation.   See 28 U.S.C. \u00a7\n\n1367(c); Tripp v. Charlie Falk's Auto Wholesale Inc., 290 Fed. Appx. 622, 632 (4th Cir.\n\n2008); see, e.g., Patterson v. City of Columbia, 2003 WL 23901761, at *5 (D.S.C. Dec 29,\n\n2003) (\u201cPatterson has raised various state law claims against all Defendants. Because the\n\n                                              12\n\ffederal claims must be dismissed, the court declines to exercise jurisdiction over the\n\nremaining state law claims.\u201d) If the district court so chooses, the dismissal would be without\n\nprejudice to any refiling in state court of that claim. It does not appear that removal and\n\njurisdiction in this Court was based on a diversity of citizenship of the parties. [See Doc. 1.]\n\n                        CONCLUSION AND RECOMMENDATION\n\n       Wherefore, based upon the foregoing, the Court recommends that the defendants\u2019\n\nmotion for summary judgment be GRANTED as to the plaintiff\u2019s ADA and ERISA claims.\n\nThe Court, however, recommends that the defendants\u2019 motion for summary judgment be\n\nDENIED as to the plaintiff\u2019s workers\u2019 compensation claim. In the alternative, if the district\n\ncourt adopts the recommendation as to the ADA and ERISA claims, then it may also be\n\ninclined to dismiss, without prejudice, the plaintiff\u2019s state law workers\u2019 compensation claim.\n\n              IT IS SO RECOMMENDED.\n\n\n                                                      s/Bruce H. Hendricks\n                                                      United States Magistrate Judge\nDecember 3, 2009\nGreenville, South Carolina\n\n\n\n\n                                              13\n\f","ocr_status":2,"date_upload":null,"document_number":"82","attachment_number":null,"pacer_doc_id":"16303839189","is_available":true,"is_free_on_pacer":true,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2017-04-20T03:41:07.150959-07:00","date_modified":"2017-05-10T17:49:41.674619-07:00","date_filed":"2009-12-03","time_filed":null,"entry_number":82,"recap_sequence_number":"2009-12-03.001","pacer_sequence_number":null,"description":" REPORT AND RECOMMENDATIONS that  36  MOTION for Summary Judgment filed by KC Concepts LLC be granted as to the plaintiff's ADA and ERISA claims. The Court, however, recommends that the defendants' motion for summary judgment be denied as to the plaintiff's workers' compensation claim. Objections to R&R due by 12/21/2009.  Signed by Magistrate Judge Bruce Howe Hendricks on 12/3/09. (jtho, )","tags":[]}],"entries_total":"https://www.courtlistener.com/api/rest/v4/docket-entries/?count=on&docket=4885549&page_size=40"}