United States District Court, E.D. Virginia, Norfolk Division
DANNETTA G. SPELLMAN, Plaintiff,
THE SCHOOL BOARD OF THE CITY OF CHESAPEAKE, VIRGINIA, Defendant.
MEMORANDUM FINAL ORDER
REBECCA BEACH SMITH SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the court on Defendant's Motion for
Summary Judgment ("Motion"), and accompanying Brief
in Support, filed on April 23, 2019. ECF Nos. 40,
41.Plaintiff filed a Brief in Opposition on
May 8, 2019, ECF No. 42.Defendant filed a Reply on May 16, 2019.
ECF No. 49.
17, 2019, this court referred the Motion to United States
Magistrate Judge Lawrence R. Leonard, pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule
of Civil Procedure 72(b), to conduct hearings, including
evidentiary hearings, if necessary, and to submit to the
undersigned district judge proposed findings of fact, if
applicable, and recommendations for the disposition of the
Motion. ECF No. 52. The Magistrate Judge held a hearing on
the Motion on August 15, 2019. ECF No. 57. The Magistrate
Judge then ordered Plaintiff and Defendant to submit
additional evidence, ECF No. 58, which they did on August 23,
2019, and August 30, 2019, respectively. ECF Nos. 59, 60.
Magistrate Judge filed the Report and Recommendation
("R&R") on October 15, 2019. ECF No. 61. The
Magistrate Judge recommended that Defendant's Motion be
granted and Plaintiff's Complaint be dismissed with
prejudice. R&R at 1. By copy of the R&R, the parties
were advised of their right to file written objections to the
findings and recommendations made by the Magistrate Judge.
See id. at 30-31. On October 29, 2019, Plaintiff
filed Objections to the R&R, ECF No. 62, and Defendant
filed a Response on November 12, 2019, ECF No. 64. Plaintiff
requested a hearing on her Objections. ECF No. 63.
to Rule 72 (b) of the Federal Rules of Civil Procedure, the
court, having reviewed the record in its entirety, shall make
a de novo determination of those portions of the
R&R to which a party has "properly objected."
Fed.R.Civ.P. 72(b)(3). The court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter to him with
instructions. 28 U.S.C. § 636(b)(1).
however, "must be made with sufficient specificity so as
reasonably to alert the district court of the true ground of
the objection." Scott v. Virginia Port Auth.,
No. 2:17CV176, 2018 WL 1508592 at *2 (E.D. Va. Mar. 27, 2018)
(Jackson, J.) (citation omitted). "General or conclusory
objections are the equivalent of a waiver." Id.
Thus, absent a specific, proper objection, the court only
reviews for clear error. See Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982); see also, e.g.,
United States Underwriters Ins. Co. v. ITG Dev. Grp.,
LLC, 294 F.Supp.3d 18, 23 (E.D.N.Y. 2018) ("The
clear error standard also applies when a party makes only
conclusory or general objections."). The court is not
required to hold a hearing on the Motion. See
Fed.R.Civ.P. 78(b); E.D. Va. Civ. R. 7 (J) .
makes three specific objections to the R&R. The court
addresses each in turn.
Hoik, Ward, and Hahn Affidavits
argues that the R&R wrongly excluded affidavits from
Glenn Hoik, Patricia Ward, and Theresa Hahn. Objs. at 3. The
Magistrate Judge, however, correctly held that the Hoik,
Ward, and Hahn affidavits are inadmissible under Federal Rule
of Civil Procedure 56. See R&R at 6 n.3. Rule 56
requires that an affidavit be made "on personal
knowledge [and] set out facts that would be admissible in
evidence." Fed.R.Civ.P. 56(c) (4). The affidavits do not
meet either requirement. While the affidavits state that the
affiants were treated differently than Plaintiff, they do not
contain any basis for their assertions that this treatment
was because of discrimination. Instead, the affidavits simply
claim, without any support, that Plaintiff was treated
differently because of her race and age. See, e.g.,
Hoik Aff. ¶ 4, ECF No. 45-3 ("Spellman and I were
subject to the identical policies and procedures as
colleagues, but Pinello discriminated against Spellman by
applying those policies and procedures in a harsh and
discriminatory manner against Spellman without just cause or
good reason."); id. ¶ 8 ("I have no
doubt in my mind that Pinello treated Spellman differently
than she treated us as Spellman's Caucasian co-coworkers
because of Pinello's discriminatory bias against
Spellman."). As such, they are inadmissible. See,
e.g., Crouse v. Wal-Mart Stores E., Inc., No.
1:01CV00079, 2002 WL 1046714 at *4 (W.D. Va. May 23, 2002)
("Under Rule 56, affidavits based merely upon personal
belief are inadmissible.").
even if admissible, the unsupported allegations of
differential treatment do not create a genuine issue of
material fact that precludes summary judgment. See Felty v.
Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.
1987) ("Unsupported speculation is not sufficient to
defeat a summary judgment motion."); Ahmed v.
Schnatter, No. CIV. S 00-2160, 2001 WL 1924523 at *2 (D.
Md. Feb. 8, 2001), aff'd, 8 Fed.Appx. 229 (4th Cir. 2001)
("All that plaintiff brings forward are his subjective
beliefs, and those of members of his family, that he was
discriminated against . . . but he has failed to submit any
opposing material sufficient to generate a triable issue
under applicable case law . . . . ") . Accordingly, the
objection based on the affidavits is
Arlene Lee's Belief of Discrimination
objects to the R&R's conclusion that Arlene Lee's
statements regarding whether Plaintiff experienced
discrimination are inadmissible and irrelevant. Objs. at 6;
see R&R at 6 n.5. Plaintiff and Defendant
dispute whether Ms. Lee believed that Plaintiff was subject
to discrimination. See Am. Br. in Opp. at 25, ECF
No. 45. But whether or not Ms. Lee, a lay witness, believed
that Defendant discriminated against ...