Neuman v. Potter et al

Filing 21

ORDER granting 6 Motion to Dismiss Counts/Claims; accepted and adopting Report and Recommendations re 18 This matter is referred back to Magistrate Judge Estrada, to determine whether Pla has any remaining claim(s) of retaliation or whether judgment should be entered in favor of the Dft.. Signed by Judge Frank R Zapata on 9/29/09.(JKM, )

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Jack Neuman filed the pro se Complaint in this action alleging violations of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. 2000e, et seq., based on race and religion, and a violation of the Age Discrimination in Employment Act, 29 U.S.C. 633a, arising from his termination from employment as Plant Manager at the Tucson Mail Processing Plant of the United States Postal Service. The Complaint also raises allegations of retaliation. This matter was referred to the United States Magistrate Judge for all pretrial proceedings and report and recommendation in accordance with the provisions of 28 U.S.C. 636(b)(1) and LRCiv 72.1 and LRCiv 72.2, Rules of Practice of the United States District Court for the District of Arizona. Before the Court for consideration is the Report and Recommendation of Magistrate Judge Hector C. Estrada, filed August 17, 2009, recommending that the District Court, after ) ) ) Plaintiff, ) ) vs. ) John Potter, Postmaster General United ) ) States Postal Service, ) ) ) Defendant. ) Jack Neuman, No. CV 08-342-TUC-FRZ (HCE) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 its independent review of the record herein, grant Defendant's Partial Motion to Dismiss to the extent that the Plaintiff's Title VII claims of discrimination based on race and religion be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of jurisdiction and that the remainder of Defendant's Partial Motion to Dismiss, addressing Plaintiff's claims of age discrimination, filed pursuant to Fed.R.Civ.P. 12(b)(6), be denied without prejudice with leave to refile as a motion for summary judgment. 1 The parties were given notice that, pursuant to 28 U.S.C. 636(b), any party may serve and file written objections within ten days after being served with a copy of this Report and Recommendation. No objections were filed. The Court, having made an independent review of the record herein, including the factual analysis under the relevant legal standards of review, as set forth in the Report and Recommendation, agrees with the findings of the Magistrate Judge and orders as follows: IT IS ORDERED that Magistrate Judge Estrada's Report and Recommendation [Doc. #18] is hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court; IT IS FURTHER ORDERED that Defendant's Partial Motion to Dismiss as to Plaintiff's claims of discrimination based on race and religion, [Doc. # 6] is GRANTED; IT IS FURTHER ORDERED that this matter is referred back to Magistrate Judge Estrada, pursuant to 28 U.S.C. 636(b)(1) and LRCiv 72.1 and LRCiv 72.2, to determine whether Plaintiff has any remaining claim(s) of retaliation or whether judgment should be entered in favor of the Defendant. DATED this 29th day of September, 2009. Pursuant to the stipulation of the parties to dismiss Plaintiff's age discrimination claim, this recommendation is moot. -2- 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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