                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-1626



TOMMY A. ALLEN,

                                              Plaintiff - Appellant,

          versus


BMW MANUFACTURING COMPANY, LLC,

                                              Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. R. Bryan Harwell, District Judge.
(7:05-cv-02450-RBH)


Submitted:   December 28, 2007            Decided:   January 8, 2008


Before MOTZ and SHEDD, Circuit Judges, and WILKINS, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


William L. Pyatt, PYATT LAW FIRM, L.L.C., Columbia, South Carolina,
for Appellant. George A. Harper, JACKSON LEWIS LLP, Greenville,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Tommy Algathen Allen appeals the district court’s order

in his employment discrimination action declining to accept new

evidence following the issuance of a magistrate judge’s report and

recommendation   and   granting   the   employer’s   motion    to   strike,

accepting the recommendation of the magistrate judge, and granting

summary judgment to BMW Manufacturing Co.(BMW).

          After the magistrate judge issued a report recommending

the district court grant summary judgment to BMW, Allen attempted

to submit several new documents to the district court.           BMW moved

to strike the additional documents as they were either not in

evidence or not submitted to the magistrate judge.            The district

court granted the motion to strike, noting although it had the

discretion to receive additional evidence in its review of the

magistrate’s report and recommendation, doing so would not be

appropriate because Allen did not offer any reason for not filing

the documents earlier.      This court reviews a district court’s

refusal to accept new evidence following the magistrate judge’s

report and recommendation for abuse of discretion.             See Doe v.

Chao, 306 F.3d 170, 183 (4th Cir. 2002).         Following a thorough

review of the record, we conclude the district court did not abuse

its discretion under Doe in declining to permit new evidence.

          As to his race discrimination claim, Allen argues that he

presented a genuine issue of material fact regarding pretext,


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because BMW claimed to have fired him because he missed his

doctor’s appointment, even though he arrived at the appointed time,

and because BMW did not require “his similarly situated white

counterpart” to submit to the same examination. This court reviews

a district court’s grant of summary judgment de novo.       Higgins v.

E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).

Summary judgment may only be granted when “there is no genuine

issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.”     Fed. R. Civ. P. 56(c).

          A   plaintiff   can   establish   a   prima   facie    case   of

discriminatory discharge under Title VII by showing: (1) he is a

member of a protected class; (2) he suffered an adverse employment

action; (3) at the time the employer took the adverse employment

action, he was performing at a level that met his employer’s

legitimate expectations; and (4) the position was filled by a

similarly qualified applicant outside the protected class or other

employees who are not members of the protected class were retained

under apparently similar circumstances.         Honor v. Booz-Allen &

Hamilton, Inc., 383 F.3d 180, 188 (4th Cir. 2004).                When a

plaintiff makes a showing sufficient to support a prima facie case,

the burden shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for the employment action.             McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).       If the employer

produces a legitimate reason for the action, the burden once again


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shifts to the plaintiff to show that the employer’s rationale is a

pretext for discrimination.   Id. at 804.

          After Allen complained to BMW of carpal tunnel syndrome,

he saw Dr. Zimmerman, who examined him for carpal tunnel syndrome.

Dr. Zimmerman placed Allen on work restrictions, and Allen did not

work another shift for BMW.

          Allen was then referred to Dr. Lencke, who examined Allen

and did not find physical evidence of his condition. BMW scheduled

another appointment for Allen with Dr. Lencke to assess whether

Allen could return to work and, if so, what restrictions were

necessary.   Allen did not attend this appointment.   BMW scheduled

a second appointment and sent Allen a letter notifying him that BMW

would pay for the exam and BMW would consider his employment

voluntarily terminated if he did not keep the appointment.   Allen

arrived at Dr. Lencke’s office for his second appointment, but

refused to be examined. Dr. Lencke informed BMW that Allen refused

to be tested but nonetheless requested the doctor excuse him from

work.   BMW sent Allen a letter informing him his employment was

terminated because he did not participate in the exam.

          We conclude BMW stated a legitimate, nondiscriminatory

reason for the termination.   Because Allen refused to be examined,

the fact that he went to the doctor’s office at the allotted time

does not demonstrate that BMW’s explanation was a pretext for

discrimination.


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           Regarding Allen’s allegedly similarly situated white

counterpart, James Fulcher, Allen contends BMW treated Fulcher

differently because it did not require him to submit to a similar

evaluation for carpal tunnel syndrome.       This conclusory allegation

is belied by Fulcher’s deposition.           Fulcher stated he saw the

doctors at BMW numerous times before receiving his diagnosis and

that he saw a private physician to be tested for carpal tunnel

syndrome upon BMW’s instruction.

           Regarding his retaliation claim, Allen argues only that

summary   judgment   is   “as   a   rule,   inappropriate   to   the   very

fact-specific allegations of retaliation by an employer.” As legal

support, Allen cites “the abundance of cases . . . in which the

courts have refused to grant such motions.”          As this court has

repeatedly affirmed summary judgments on retaliation claims, this

argument has no merit.    See, e.g., Hux v. City of Newport News, 451

F.3d 311 (4th Cir. 2006); Baqir v. Principi, 434 F.3d 733, 748 (4th

Cir. 2006); Honor, 383 F.3d at 188-89.

           For these reasons, we affirm the district court’s order

granting the motion to strike, adopting the magistrate judge’s

report and recommendation, and awarding BMW summary judgment.           We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

                                                                 AFFIRMED




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