Fields v. Walgreens Company

Filing 96

ORDER accepting 90 Recommendation of United States Magistrate Judge. Granting 79 Defendant's Motion for Partial Summary Judgment. Judgment shall enter in favor of defendant and against plaintiff on plaintiff's claim for constructive discharge, by Judge Philip A. Brimmer on 3/2/10.(ebs, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer Civil Action No. 08-cv-01704-PAB-MJW RONALD E. FIELDS, Plaintiff, v. W ALGREENS COMPANY, also known as Walgreens Co., Defendant. _____________________________________________________________________ ORDER _____________________________________________________________________ This matter comes before the Court on the Recommendation of United States Magistrate Judge ("the Recommendation") [Docket No. 90] concerning defendant's motion for partial summary judgment [Docket No. 79]. On October 30, 2009, plaintiff filed timely objections [Docket No. 91] to the Recommendation. Defendant has filed a response [Docket No. 94] to the objections. As a threshold matter, the proper standard for reviewing the recommendation is in some doubt. While plaintiff's objection was timely, "a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court . . . ." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996) (emphasis added). Plaintiff's objections simply reiterate his general claims that he has evidence in support of his claim without citing to any actual

evidence or otherwise specifically disputing the recommendations. However, I need not decide whether these objections are sufficient to preserve de novo review. Even under that standard, defendant is entitled to partial summary judgment. Plaintiff brings claims for unlawful employment discrimination on the basis of his race. Defendant moved for partial summary judgment on plaintiff's claim of constructive discharge, arguing that plaintiff cannot make the necessary showing that defendant "`has made working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign.'" Sandoval v. City of Boulder, Colo., 388 F.3d 1312, 1325 (10th Cir. 2004) (quoting Sanchez v. Denver Pub. Schs., 164 F.3d 527, 534 (10th Cir. 1998)). By plaintiff's own admission, he did not resign because of objectively intolerable working conditions, but rather because he did not like the schedule he had been assigned. See Def.'s Mot. for Partial Summ. J. [Docket No. 79] at Ex. 1 (excerpts from plaintiff's deposition). Having conducted the requisite de novo review, I agree with the magistrate judge's thorough and well-reasoned recommendation that plaintiff's constructive discharge claim fails as a matter of law. Accordingly, it is ORDERED that the Recommendation of United States Magistrate Judge [Docket No. 90] is ACCEPTED. It is further ORDERED that defendant's motion for partial summary judgment [Docket No. 79] is GRANTED. It is further

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ORDERED that judgment shall enter in favor of defendant and against plaintiff on plaintiff's claim for constructive discharge.

DATED March 2, 2010. BY THE COURT:

s/Philip A. Brimmer PHILIP A. BRIMMER United States District Judge

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