Cermak v. Host International Corporation
Filing
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MEMORANDUM OPINION AND ORDER adopting 22 Report and Recommendation; granting 5 Motion to Dismiss/General. Plaintiff's Complaint [Doc. No. 1, Ex. 1] is DISMISSED IN PART WITH PREJUDICE as to his ADA and federal regulatory claims, AND IN PART WITHOUT PREJUDICE as to his claims under Minnesota law. (Written Opinion) Signed by Judge Susan Richard Nelson on 1/18/2019. (SMD) cc: Shawn Timothy Cermak. Modified text on 1/18/2019 (JLB).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Shawn Timothy Cermak,
Case No. 18-cv-1267 (SRN/KMM)
Plaintiff,
v.
MEMORANDUM OPINION
AND ORDER ADOPTING REPORT
AND RECOMMENDATION OF
MAGISTRATE JUDGE
Host International,
Defendant.
Shawn Timothy Cermak, 721 Lake Susan Drive, Apartment 305, Chanhassen, MN
55317, pro se.
Joseph G. Schmitt and Pablo Orozco, Nilan Johnson Lewis PA, 120 South 6th Street,
Suite 400, Minneapolis, MN 55402, for Defendant.
SUSAN RICHARD NELSON, United States District Judge
This case is before the Court on Plaintiff’s objections (“Obj.”) [Doc. No. 23] to
United States Magistrate Judge Katherine Menendez’s November 27, 2018, Report and
Recommendation (“R&R”) [Doc. No. 22]. Magistrate Judge Menendez recommended that
the Court dismiss Plaintiff’s complaint (“Complaint”) in part with prejudice, and in part
without prejudice [Doc. No. 1, Ex. 1]. (R&R at 1.) For the reasons set forth below, the
Court overrules Plaintiff’s Objection, adopts the R&R in full, and dismisses Plaintiff’s
Complaint in part with prejudice, and in part without prejudice.
I.
Background
On April 16, 2018, Plaintiff originally filed his Complaint in Hennepin County
District Court. On May 7, 2018, the case was removed to this Court. [Doc. No. 1].
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Plaintiff first claims that Defendant, Host International, violated the Americans
with Disabilities Act (“ADA”) by not making reasonable accommodations for Plaintiff at
work when it denied Plaintiff a spot in the maintenance department. (Compl. ¶ 1.)
Second, Plaintiff contends that Defendant failed to maintain equipment in compliance
with Occupational Safety and Health Administration (“OSHA”) standards, causing him
to be burned. (Id. ¶ 2.) Third, he argues that Defendant violated certain Minnesota laws or
regulations by improperly repairing a sink. (Id. ¶ 3.) Fourth, Plaintiff claims that
Defendant hired unqualified maintence staff to make repairs to refrigeration equipment.
(Id. ¶ 4.) And lastly, he contends that Defendant hired “unqualified supervisors . . . that
did not accommodate people with disabilities . . . .” (Id. ¶ 5.) Plaintiff seeks damages and
various forms of injunctive relief. (Id.)
On May 14, 2018, Defendant moved to dismiss this matter under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim. (Def.’s Mem. in Supp. of Mot. to
Dismiss [Doc. No. 7] In a thorough and well-reasoned R&R, Magistrate Judge Menendez
recommended that the Complaint be dismissed, in part with prejudice, and in part without
prejudice. (R&R at 1.) On December 12, 2018, Plaintiff filed timely objections to
Magistrate Judge Menendez’s R&R. (Obj. at 1.)
Plaintiff raises three objections to the R&R. First, he argues that the Court
disregarded evidence that he exhausted the administrative process prior to asserting his
ADA claim. (Obj. at 1.) Second, Plaintiff maintains that Defendant did not respond to his
“charge,” or Complaint. (Id.) And finally, he claims that Defendant violated a wage-andhour regulation. (Id.)
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II.
Discussion
A.
Standard of Review
This Court reviews de novo any portion of the magistrate judge’s opinion to which
specific objections are made, and “may accept, reject, or modify, in whole or in part, the
findings or recommendations” contained in that opinion. 28 U.S.C. § 636(b)(1)(C); see
also Fed. R. Civ. P. 72(b); D. Minn. L.R. 72.2(b)(3).
B.
Plaintiff’s Objections
First, Plaintiff contends that the Court disregarded the evidence that he presented
regarding his exhaustion of the administrative process. (Obj. at 1.) However, Plaintiff has
failed to allege that he exhausted his administrative remedies before filing this action. To
exhaust the administrative process before filing an ADA claim, Plaintiff was required to
timely file a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) and receive a right-to-sue letter. Faibisch v. Univ. of Minn., 304
F.3d 797, 803 (8th Cir. 2013). Plaintiff provided no evidence nor did he allege in his
Complaint that he filed a charge with the EEOC or received a right-to-sue letter. As such,
Plaintiff’s first objection is overruled.
Second, Plaintiff objects to the magistrate judge’s recommended dismissal of his
Complaint because Defendant did not respond to his “charge.” (Obj. at 1.) It appears that
Plaintiff is suggesting that Defendant failed to answer his Complaint. However,
Defendant removed the case to federal court and then filed this Motion to Dismiss in lieu
of an Answer, which it is entitled to do under Rule 12 of the Federal Rules of Civil
Procedure. Thus, Plaintiff’s second objection is overruled.
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Lastly, Plaintiff objects to the magistrate judge’s recommended dismissal of his
Complaint because he now alleges that Defendant has violated a wage-and-hour
regulation. (Obj. at 1.) But Plaintiff’s Complaint does not assert any wage-and-hour
violation nor does Plaintiff attempt to explain how Defendant’s calculation of overtime
pay is improper. Therefore, Plaintiff’s third objection is overruled.
IV.
Conclusion
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff Cermak’s Objection [Doc. No. 23] is OVERRULED;
2. Magistrate Judge Menendez’s R&R [Doc. No. 22] is ADOPTED in its entirety;
3. Defendant’s Motion to Dismiss [Doc. No. 5] is GRANTED; and
4. Plaintiff’s Complaint [Doc. No. 1, Ex. 1] is DISMISSED IN PART WITH
PREJUDICE as to his ADA and federal regulatory claims, AND IN PART
WITHOUT PREJUDICE as to his claims under Minnesota law.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 18, 2019
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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