United States District Court, E.D. Virginia, Norfolk Division
CHERYL A. FLYNN, Plaintiff,
MID-ATLANTIC MARITIME ACADEMY, LLC, Defendant.
MEMORANDUM FINAL ORDER
REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the court on the Motion for Summary
Judgment filed by Defendant Mid-Atlantic Maritime Academy,
LLC ("MAMA") on March 5, 2019, and accompanying
Memorandum in Support. ECF Nos. 15, 16. Plaintiff, Cheryl A.
Flynn, filed a Memorandum in Opposition on March 26, 2019.
ECF No. 33. MAMA filed a Reply on April 1, 2019. ECF No. 37.
April 5, 2019, this court referred the Motion for Summary
Judgment 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 for Summary Judgment. ECF
Magistrate Judge filed the Report and Recommendation
("R&R") on July 30, 2019. ECF No. 56. The
Magistrate Judge recommended that MAMA's Motion for
Summary Judgment 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 42. On August
27, 2019, Plaintiff filed Objections to the R&R, ECF No.
60, and MAMA filed a Response, ECF No. 61.
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.) (quoting United States
v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007)).
"General or conclusory objections are the equivalent of
a waiver." Id.; see also Tyler v.
Wates, 84 Fed.Appx. 289, 2 90 (4th Cir. 2003)
(unpublished) ("A general objection to the entirety of
the magistrate judge's report is tantamount to a failure
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
first objection is that the R&R incorrectly held a
statement that Mrs. Lee Goldman made regarding post-traumatic
stress disorder ("PTSD") to be inadmissible
hearsay. Objs. at 2, 17-19; R&R at 6 n.4. Plaintiff
testified at her deposition that the statement is as follows:
"[Mrs. Goldman] made a derogatory comment that people
with PTSD are unstable and can't be trusted and we have
to be leery of what they're carrying around." Flynn
Dep. 231:1-3, ECF No. 33-4.
is correct that this statement is not hearsay. Hearsay is
"a statement that (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party
offers in evidence to prove the truth of the matter asserted
in the statement." Fed.R.Evid. 801(c). Plaintiff,
however, does not offer the statement to prove the truth of
the matter asserted. "Flynn did not proffer Mrs.
Goldman's statement to prove persons with PTSD are
unstable or cannot be trusted. She proffered it to prove Mrs.
Goldman's bias against persons with PTSD . . . ."
Objs. at 18. Because Plaintiff does not offer the statement
to prove that people with PTSD are unstable or cannot be
trusted, it is not hearsay. See, e.g., United
States v. Mitre, 132 Fed.Appx. 495, 497 (4th Cir. 2005)
(unpublished) ("Because we conclude the testimony was
not admitted to prove the truth of the matter asserted, we
conclude it was not hearsay."). MAMA does not offer any
persuasive argument to the contrary, other than claiming
without support that the comment is "classic hearsay,
for which there is no exception." Resp. at 12.
Accordingly, the court GRANTS
Plaintiff's objection to the extent she objects to the
ruling that the statement is inadmissible hearsay.
the court disagrees with Plaintiff's conclusion that this
statement is evidence of direct discrimination or sufficient
evidence to establish discrimination at the third step of the
McDonnell Douglas framework. "Derogatory
remarks" do not constitute direct evidence "unless
[they] were related to the employment decision in
question." Brinkley v. Harbour Recreation Club,
180 F.3d 598, 608 (4th Cir. 1999) (citation omitted),
overruled on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90, 101-02 (2003) . Furthermore,
"in the absence of a clear nexus with the employment
decision in question, the materiality of stray or isolated
remarks is substantially reduced." Merritt v. Old
Dominion Freight Line, Inc., 601 F.3d 289, 300 (4th Cir.
Plaintiff has not demonstrated a connection between Mrs.
Goldman's isolated statement and the decision to
terminate her employment. Mrs. Goldman is the wife of Mr.
Arthur Goldman, MAMA'S CEO. Goldman Dep. 6:5-11, 46:4-8,
ECF No. 16-3. But she is not a MAMA employee. Nanartowich
Dep. 77:6-8, ECF No. 33-3. And Plaintiff offers no evidence,
other than her own speculation, that Mrs. Goldman influenced
the termination decision or that this statement was in any
way connected to the termination decision. Plaintiff's
contention that Mrs. Goldman ''exercise[d] de facto
control and influence[d] company affairs", Objs. at 3,
is unsupported and not evidence that Mrs. Goldman influenced
Plaintiff's termination decision. Accordingly, Mrs.
Goldman's statement is not evidence of direct
discrimination. See, e.g., Matias v. Elon
Univ., 780 Fed.Appx. 28, 30 (4th Cir. 2019) (holding
that a comment "though objectionable, was the type of
isolated statement that does not amount to direct evidence of
comment is also not enough to meet Plaintiff's burden of
producing sufficient evidence to show at the third step of
the McDonnell Douglas burden shifting framework that
MAMA intentionally discriminated against her. See Ennis
v. Nat'1 Ass'n of Bus. & Educ. Radio,
Inc., 53 F.3d 55, 58 (4th Cir. 1995) ("If the
defendant meets this burden of production, the presumption
created by the prima facie case Mrops out of the
picture,' and the plaintiff bears the ultimate burden of
proving that she has been the victim of intentional
discrimination." (quoting St. Mary's Honor Ctr.
v. Hicks, 509 U.S. 502, 511 (1993))). Again, there is no
evidence that Mrs. Goldman's statement affected the
termination decision, and Mrs. Goldman is not a MAMA
employee. Because Plaintiff has failed to demonstrate a
connection between the statement and her termination, the
statement is not sufficient to show that MAMA discriminated
against her due to her disability. Accordingly, the court
OVERRULES Plaintiff's objection to the
extent it argues that Mrs. Goldman's statement is
sufficient to show direct discrimination or meet the third
step of the McDonnell Douglas framework.
second objection is to the R&R's ultimate conclusion
that Plaintiff failed "to demonstrate she has been the
victim of intentional discrimination" and the
recommendation that MAMA's Motion for Summary Judgment be
dismissed. Objs. at 2 (quoting R&R at 41-42). As
discussed above, objections to the R&R must be specific.
Supra Part I. Unspecific objections are the
"equivalent of a waiver." Scott, 2018 WL
1508592 at *2. However, the court will construe the arguments
that Plaintiff makes in the ...