Roach v. Gates

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1569
DEBRA ROACH,
Plaintiff - Appellant,
v.
ROBERT M. GATES, Dr., Secretary of Defense,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Margaret B. Seymour, District
Judge. (2:07-cv-00136-MBS; 2:07-cv-01574-MBS)
Submitted: January 14, 2011 Decided: March 17, 2011
Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Debra Roach, Appellant Pro Se. Terri Hearn Bailey, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Debra Roach appeals from the district courts’ orders
accepting the reports and recommendations of the magistrate
judge and granting summary judgment to the Defendant on Roach’s
employment discrimination and retaliation suit. On appeal,
Roach raises numerous claims challenging the rulings in two
district court orders: (1) the March 10, 2009, order granting
summary judgment on all claims except Roach’s claim that she was
retaliated against due to her union activities and (2) the
district court’s final order granting summary judgment on
Roach’s union retaliation claim for failure to exhaust. We
affirm in part and vacate and remand in part.
First, we find that Roach’s failure to object to the
magistrate judge’s initial report waived the right to appeal the
claims resolved by the March 10 order. The Federal Magistrate’s
Act provides that “[w]ithin ten days[ ] after being served with
a copy, any party may serve and file written objections to [the]
proposed findings and recommendations [of a magistrate judge] as
provided by rules of court.” 28 U.S.C. § 636(b)(1) (2006); see
Fed. R. Civ. P. 72(b)(2). * The district court is required to
review de novo only those portions of the report to which
*
On December 1, 2009, the ten-day period became fourteen
days. Rule 72(b)(2) also changed to fourteen days.
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specific and timely objections have been made. See Orpiano v.
Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982). Where no
objections are filed, the court need not explain its reasons for
adopting the report. See Camby v. Davis, 718 F.2d 198, 200 (4th
Cir. 1983). Further, “[i]f written objections to a magistrate
judge’s recommendations are not filed with the district court
within ten days, a party waives its right to an appeal.”
Wells v. Shriners Hosp., 109 F.3d 198, 201 (4th Cir. 1997).
Roach did not file objections to the magistrate
judge’s initial report and recommendation. Moreover, at that
time and during most of the district court proceedings, Roach
was represented by counsel. In addition, Roach does not assert
that she failed to receive the report and recommendation or any
other excuse regarding her failure to file objections.
Thus, we conclude that Roach has waived appellate
review of the district court’s March 10 order by failing to file
any objections to the magistrate judge’s report and has
abandoned any assertion to the contrary. Accordingly, Roach has
waived all her appellate arguments arising from the district
court’s grant of summary judgment on most of her claims. Thus,
the only appellate claims not waived are those concerning her
union retaliations claims, which were the only claims left open
by the March 10 order. Thus, we affirm the portion of the
court’s judgment resolving the remainder of Roach’s claims.
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With regard to her union retaliation claims, Roach
asserts that, following the March 10 order, the district court
improperly limited her to two claims: (1) that she was prevented
from coming to the workplace to participate in union activities
and (2) that she was not allowed to submit statements and
witnesses on her behalf. In a second report and recommendation
following entry of the March 10 order, the magistrate judge
concluded that his first report and recommendation (which was
not objected to) clearly stated this limitation. We disagree.
In the magistrate judge’s first report, the magistrate
judge noted that Roach “asserts numerous allegations relating to
her Union activities, including that she was denied rights to
which she was entitled under the collective bargaining
agreement, as well as that she was retaliated against for
engaging in union activity.” After noting that Roach’s
allegations were “numerous” and included claims that she was
denied rights under the collective bargaining agreement (“CBA”)
as well as retaliated against for engaging in union activity,
the magistrate judge noted three specific claims, those
discussed above as well as Roach’s claim that she was denied
representation, which the magistrate judge found was barred for
lack of jurisdiction. The magistrate judge did not say that
these three claims were the ONLY claims raised by Roach, and it
is questionable whether three claims would have properly been
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termed “numerous.” The magistrate judge then went on to request
that the Agency determine what claims were remaining and proceed
accordingly, a process that appears inapposite if the report and
recommendation had actually intended to limit the union claims
to the three discussed (and two remaining).
When Roach pointed out this alleged error in her
objections to the second magistrate judge’s report and
recommendation, the magistrate judge responded that Roach could
not change her arguments so late in the proceedings. However,
as Roach noted, she had consistently argued throughout the
proceedings that she was fired, at least in part, due to her
participation in union activities. She claimed that the three
assertions noted by the magistrate judge, as well as others,
were actually factual support for her ultimate claim that she
was improperly terminated. The Defendant’s initial summary
judgment motion supports Roach’s interpretation, as it addressed
Roach’s claim that she was wrongfully terminated for
participating in union activities. In her response to the
Defendant’s motion, Roach clearly contended that she was
terminated in retaliation for her protected union activities and
in violation of the CBA.
Because, contrary to the magistrate judge’s conclusion
in his second report and recommendation, the initial magistrate
judge’s recommendation did not clearly limit Roach to pursuing
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the listed union claims, her failure to object did not result in
such a limitation. While the magistrate judge may have intended
such a limitation, the language of the report was ambiguous, at
best. Instead, the magistrate judge’s first report stated that
it denied summary judgment as to Roach’s union retaliation
claims and instructed the parties to determine and brief the
remaining claims, if any.
Accordingly, the district court erred in finding that
Roach was barred from pursuing other union claims. As such, we
vacate the portion of the district court’s order dismissing
Roach’s claim that she was improperly terminated in retaliation
for her participation in union activities and in violation of
the CBA and remand for a determination of whether this claim was
properly exhausted. We note that Roach conceded, in her
objections and her informal brief, that her assertions that she
was denied access to the workplace and not permitted to submit
evidence on her behalf are not freestanding substantive claims
for relief, and, if they were, were not properly exhausted.
Accordingly, we affirm the district court’s orders
with regard to all of Roach’s claims except her assertion that
she was improperly terminated in retaliation for her protected
union activities and in violation of the CBA. As to this claim,
we vacate and remand for further proceedings. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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