Johnson v. Builders FirstSource Se. Grp., CIVIL 3:21-cv-02612-SAL

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtSherri A. Lydon United States District Judge
PartiesFrank L. Johnson, Plaintiff, v. Builders FirstSource Southeast Group, LLC, Defendant.
Docket NumberCIVIL 3:21-cv-02612-SAL
Decision Date09 January 2023

Frank L. Johnson, Plaintiff,

Builders FirstSource Southeast Group, LLC, Defendant.

CIVIL No. 3:21-cv-02612-SAL

United States District Court, D. South Carolina, Columbia Division

January 9, 2023


Sherri A. Lydon United States District Judge

This matter is before the court for review of the Report and Recommendation of the United States Magistrate Judge Paige J. Gossett, made in accordance with 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). [ECF No. 45.] As detailed below, the court adopts the Report as modified and grants Defendant's summary judgment motion.



Defendant Builders FirstSource builds and delivers roof trusses from its facility in Sumter, South Carolina. [ECF No. 29-1, at 2.] Plaintiff Frank Johnson started working at Builders' facility in Colorado in 2000 and transferred to the Sumter facility in 2003. [ECF No. 1-1, ¶ 6.] Johnson worked at the Sumter facility until his termination in 2020 and most recently served as the Supervisor Dispatcher for about eight years. Id. ¶ 7. In this role, Johnson made sure all the loads ready for delivery made it out of the facility by assigning drivers trucks and their associated routes; he also ensured the drivers complied with DOT regulations. [ECF No. 41-1, Johnson Depo., 26:15- 20, 31:3-16.]

Toward the start of the Covid-19 pandemic on May 25, 2020, Calvin Fulmore-one of Johnson's subordinate drivers-told Johnson his wife had tested positive for Covid, and Johnson directed him to quarantine at home pending his own test results. [ECF No. 1-1, ¶¶ 9, 10.] About a week later, Fulmore told Johnson that his test results came back positive. Id. ¶ 12. In accordance with company policy, Johnson alerted his supervisor, Terminal Manager Jerry McCabe, that Fulmore had tested positive for Covid and remained quarantined at home. Id. ¶ 13. Johnson claims he told no other employee of Fulmore's sickness. Id. ¶ 14.

Yet the next day Fulmore emailed Sharlene Herbert, the Sumter facility Office Manager, complaining that the news he tested positive for Covid had reached the other drivers without his permission. [ECF No. 29-2, at 2, 10.] Within minutes of receiving Fulmore's email, Herbert responded and asked him to call her. Id. About forty minutes after Herbert's response, and presumptively after a phone call, Fulmore sent another email conveying that his wife had contacted


a lawyer who wanted to investigate but he understood Herbert was “already working on it[.]” Id. Following an investigation conducted on the same day as Fulmore's complaint, Builders determined Johnson shared Fulmore's health information and Builders gave Johnson a written disciplinary warning. Id. at 3, 12.

After returning to work following his quarantine, Fulmore was assigned a different, older truck and a new route by either Johnson or Richard Holtz, another dispatcher. [ECF No. 41-3, Daugherty Depo., p. 29:5-7.] After a week of driving this new route, Fulmore submitted his resignation to Herbert, claiming Johnson had retaliated against him by taking away his new truck and assigning him an old truck and giving him a worse route. [ECF No. 41-9, at 2.] Fulmore claimed he could not “work in peace around” Johnson and that Johnson's actions spurred his resignation. Id. Again, Builders investigated Fulmore's complaint and concluded Johnson had, in fact, retaliated against Fulmore. [ECF No. 48-1, at 4-5.] Johnson met with other management personnel on July 1, 2020, to discuss his actions toward Fulmore. [ECF No. 41-1, Johnson Depo., p. 125:2-14.] The next day, McCabe fired Johnson, citing the alleged retaliation against Fulmore. [ECF No. 41-10, at 2.]

Following his termination, Johnson sued in the Court of Common Pleas of Sumter County, South Carolina alleging two causes of action: race discrimination in violation of Title VII and defamation in violation of South Carolina state common law. [ECF No. 1-1 ¶¶ 29-45.] Builders timely removed the action on August 13, 2020, asserting federal question and supplemental jurisdictional bases. [ECF No. 1.] After full discovery, Builders moved for summary judgment on both of Johnson's claims. [ECF No. 29.] Johnson filed his reply, abandoned his Title VII claim, and asked the court to remand the defamation claim to state court. [ECF No. 41.] Builders filed a Reply, asking the court to retain jurisdiction over the defamation claim and reaffirming its request that the court enter judgment on both claims. [ECF No. 43.]


United States Magistrate Judge Paige J. Gossett filed her Report and Recommendation on July 14, 2022, recommending the court retain jurisdiction over the defamation claim and enter judgment for Builders on both of Johnson's claims. [ECF No. 45.] Johnson filed objections to the recommendation, ECF No. 47, and Builders replied in opposition, ECF No. 49. Thus, the matter is ripe for resolution.


The magistrate judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of only those portions of the Report that have been specifically objected to, and the court may accept, reject, or modify the Report, in whole or in part. 28 U.S.C. § 636(b)(1). Without any objections, the court need not explain its reason for adopting the Report and must “only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (citing Fed.R.Civ.P. 72 advisory committee's note).

“An objection is specific if it ‘enables the district judge to focus attention on those issues- factual and legal-that are at the heart of the parties' dispute.'” Dunlap v. TM Trucking of the Carolinas, LLC, No. 0:15-cv-04009, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec. 12, 2017) (citation omitted). A specific objection “requires more than a reassertion of arguments from the [pleading] or a mere citation to legal authorities.” Sims v. Lewis, No. 6:17-cv-3344, 2019 WL 1365298, at *2 (D.S.C. Mar. 26, 2019). It must “direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Thus, “[i]n


the absence of specific objections . . . this court is not required to give any explanation for adopting the recommendation.” Fieldv. McMaster, 663 F.Supp.2d 449, 451-52 (4th Cir. 2009).


Although initially styled as an employment action, that is no longer the case. In response to Builders' summary judgment motion, Johnson stipulated to the dismissal of his Title VII claim. [ECF No. 41, at 8.] In fact, Johnson explicitly conveyed he “does not object to the Magistrates [sic] Report and Recommendation as to his race discrimination claim” in which the magistrate judge recommended that this court should grant summary judgment because Johnson conceded the claim. [ECF No. 47, at 1 n.2.] Because Johnson does not object to that recommendation, and the court finds no clear error in that recommendation, the court adopts the Report's recommendation and grants summary judgment for Builders on Johnson's Title VII claim. See Diamond, 416 F.3d at 315 (applying a clear error standard to a recommendation...

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