Diamond v. Colonial Life & Acc. Ins. Co.

• Decision Date: 25 July 2005
• Docket Number: No. 04-2093.,04-2093.
• Parties: Rovilma DIAMOND, Plaintiff-Appellant, v. COLONIAL LIFE & ACCIDENT INSURANCE COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 310

416 F.3d 310

Rovilma DIAMOND, Plaintiff-Appellant, v. COLONIAL LIFE & ACCIDENT INSURANCE COMPANY, Defendant-Appellee.

No. 04-2093.

United States Court of Appeals, Fourth Circuit.

Argued May 24, 2005.

Decided July 25, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: Chalmers Carey Johnson, Charleston, South Carolina, for Appellant. Katherine Dudley Helms, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Columbia, South Carolina, for Appellee.

BRIEF: William L. Duda, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Columbia, South Carolina, for Appellee.

Before WIDENER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge WIDENER and Senior Judge HAMILTON joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge.

Rovilma Diamond sued her former employer, Colonial Life & Accident Insurance Company, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act and 42 U.S.C.A. § 1981 (West 2003). For the reasons that follow we affirm the order of the district court granting Colonial summary judgment on both claims.

I.

A.

Shortly after graduating from Hampton University in 1992 with a degree in merchandising, Diamond, an African-American woman, began working at Colonial as a customer service specialist. In 1995, Colonial promoted Diamond to the position of disability claims specialist. While working at Colonial, and with help from its academic assistance program, Diamond pursued a master's degree in public administration, which she earned in 1998. Subsequently, Colonial promoted Diamond to the position of senior customer care specialist. In that role she reported to Randy Stober, a white man, who reported to Mike Glover, an African-American man and the assistant vice president of the claims department.

In the summer of 2000, three claims specialists — two African-American women (including Dee Goodman) and one white woman — applied to telecommute, i.e., work from home. Stober refused Goodman's request to telecommute, but granted the white woman's request even though she, unlike Goodman, had been disciplined a few months earlier. Following the denial of her request, Goodman "made an internal report of discrimination ... and listed Diamond as a supporting witness." Brief of Appellant at 6.¹

In August 2000, Glover posted an opening for a position as accident and health manager. Diamond and two white women asked to be considered for the position. Due to budget concerns, however, Glover did not fill the position at that time. In January 2001, Diamond began searching for other employment.

In February 2001, Glover again posted the opening for accident and health manager. Glover informed Debbie Hamrick, a white woman and the director of accident and health and life claims, that Diamond and the two white women who had previously expressed interest in the position should be considered. In addition, Cindy Scott, a white woman, and four white men applied for the position. The stated qualifications for the position were: (1) "[p]rior management experience preferred," (2) "[c]ollege degree preferred, but will consider equivalent claims experience," and (3) "[u]nderstanding of Colonial Products, Services, Markets, etc." In addition, Colonial generally required an employee to have 18 months of work experience at Colonial in order to be eligible for a promotion, although this requirement could be waived if the employee was seeking a promotion within the same department.

Hamrick and Blanche Chisholm, an African-American woman who was an accident and health manager, interviewed six of the eight applicants, including Diamond and Scott. Following each interview, Hamrick and Chisholm rated the applicant on the basis of nine characteristics, such as "operations knowledge, business sense, decision making, communication skills, high degree of initiative, flexibility/openness, leadership skills, hands-on manager, and interpersonal skills." Hamrick and Chisholm agreed that, based on their rating system, Diamond ranked fourth among the applicants while Scott ranked first. The contemporaneous notes of Hamrick and Chisholm indicate that they believed Diamond had strong communication skills and technical knowledge, but that she needed to develop "interpersonal skills, initiative, coaching/counseling." Although Scott lacked a college degree and had not worked for Colonial for eighteen months, Hamrick and Chisholm rated her higher than Diamond in all nine categories, noting her particular strength in "decision making, leadership, interpersonal skills, communication." After the interviews, Hamrick spoke with the managers of each of the top four applicants to discuss the applicants' ratings; none of the managers disagreed with the rankings. Hamrick also discussed the rankings with Glover, who agreed with them. In March 2001, Colonial awarded the position to Scott.

Shortly thereafter, Diamond lodged internal complaints of race discrimination and retaliation. In April 2001, unsatisfied with Colonial's response, she filed a charge of discrimination with the South Carolina Human Affairs Commission. In response to that charge, Diamond claims, she "began to experience negative changes at work," including complaints about her work, being left unprepared for meetings, having her phone calls monitored and certain emails deleted, heightened surveillance, and negative performance reviews. Brief of Appellant at 10-12. On May 29, 2002, Diamond resigned from Colonial and accepted a job with the South Carolina Budget and Control Board.

B.

On April 23, 2002, a month before resigning, Diamond filed a complaint in state court alleging wrongful denial of a promotion and retaliation in violation of Title VII and 42 U.S.C.A. § 1981. Colonial removed the case to federal court and moved for summary judgment.

On October 21, 2003, the magistrate judge issued a report and recommendation in which he recommended granting Colonial's motion for summary judgment on both the failure to promote and retaliation claims. Diamond timely filed an objection to the magistrate judge's report, specifically objecting to his disposition of both claims. Diamond also argued in her objection that the Supreme Court's recent decision in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), rendered the "shifting burden test ... no longer ... applicable" in Title VII cases at the "[s]ummary [j]udgment stage."

The district court ordered the magistrate judge to "take a fresh look" at Diamond's suit "in light of Desert Palace." The court also directed the magistrate to order further briefing and issue a "new" report and recommendation. The magistrate promptly ordered the parties to file supplemental briefs. In Diamond's brief, she specifically addressed the impact of Desert Palace on her race discrimination claim. As to her retaliation claim, she stated that she "request[ed] de novo consideration of the arguments set forth in the opposing memoranda and objection and response currently on file."

On June 10, 2004, the magistrate judge issued his second report and recommendation, in which he again recommended granting summary judgment to Colonial on Diamond's failure to promote claim. Regarding the retaliation claim, the magistrate judge erroneously said: "Although Diamond asks that summary judgment be reconsidered for both her claims (failure to promote and retaliation) in her objections to the [report and recommendation], she argues only that her failure to promote claim survive [sic] summary judgment in her most recent memorandum." For this (incorrect) reason, the magistrate judge concluded that "only Diamond's failure to promote claim will be addressed." Diamond timely objected to the magistrate's recommendation as to her failure to promote claim, but did not file an objection to the report's treatment of her retaliation claim.

The district court, after conducting a de novo review of Diamond's failure to promote claim, granted Colonial summary judgment on that claim. The court also granted Colonial summary judgment on Diamond's retaliation claim, but did not review the claim de novo review because the court concluded that Diamond had not preserved an objection to the magistrate judge's resolution of that claim. The court explained:

[I]n the June 10, 2004 [report and recommendation], the Magistrate Judge observed that although Diamond asked in her objections to the initial October 1, 2003 [report and recommendation] that summary judgment be reconsidered for both the discrimination and retaliation claims, in her most recent memorandum she argues only that her failure to promote claim survives summary judgment. This court notes that Diamond did not dispute that Magistrate Judge's observation in her response to the June 10, 2004 [report and recommendation] and thus this court adopts the reasoning contained in the initial [report and recommendation] and grants Colonial Life's Motion for Summary Judgment on the retaliation claim.

II.

Initially, Diamond argues that we should remand her case to the district court so it can "reconsider" her retaliation claim. Brief of Appellant at 18. Because Diamond failed to object to the magistrate judge's disposition of her retaliation claim in his second report, the district court had no obligation to conduct a de novo review of the retaliation claim and Diamond waived her right to appellate review of that claim. See Wells v. Shriners Hosp., 109 F.3d 198, 201 (4th Cir.1997).

The Federal Magistrates Act requires a district court to "make a de novo determination of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C.A. § 636(b)(1) (West 1993 & Supp.2005) (emphasis added); accord Fed.R.Civ.P. 72(b) ("The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, ...