Bowen v. O'Rourke

Filing 50

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; Judge Johnstons Findings and Recommendations 49 are ADOPTED IN FULL. IT IS FURTHER ORDERED that Defendants Motion to Dismiss 38 is DENIED. Signed by Judge Brian Morris on 11/14/2019. (TLO) Modified on 11/14/2019 to reflect copy mailed to pltf Bowen (TLO).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
ELIZABETH ANN BOWEN,
Plaintiff,

CV 18-90-GF-BMM-JTJ

vs.
ROBERT WILKIE, Secretary of
Veterans Affairs,

ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

Defendant.

Plaintiff Elizabeth Bowen (Bowen) filed this lawsuit against her former
employer, the Department of Veterans Affairs (VA). (Doc. 1.) Bowen worked for
the VA as an Administrative Assistant in the VA’s Community Based Outpatient
Clinic in Great Falls, Montana. Bowen asserts claims against the VA for sexual
discrimination, retaliation, and disability discrimination. The VA filed a motion to
dismiss Bowen’s disability discrimination claim under Fed. R. Civ. P. 12(b)(6).
(Doc. 38.) The VA asserts that Bowen failed to allege sufficient facts to support a
cognizable claim for disability discrimination. (Doc. 39 at 6-7.)
United States Magistrate Judge John Johnston issued Findings and
Recommendations on October 23, 2019. (Doc. 49.) Judge Johnston took the
allegations in Bowen’s Complaint as true and found that Bowen alleged sufficient
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facts to survive the VA’s motion to dismiss under Rule 12(b)(6). (Id. at 4.) Judge
Johnston recommends that the Court deny the VA’s motion to dismiss. (Id.)
Neither party filed objections to the Findings and Recommendations. The
parties have waived the right to de novo review thereof. 28 U.S.C. § 636(b)(1)(C).
Absent objection, this Court reviews findings and recommendations for clear error.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc);
Thomas v. Arn, 474 U.S. 140, 149 (1985). Clear error exists if the Court is left
with a “definite and firm conviction that a mistake has been committed.” United
States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted). Reviewing
for clear error and finding none,
IT IS HEREBY ORDERED that Judge Johnston’s Findings and
Recommendations (Doc. 49) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss (Doc.
38) is DENIED.
DATED this 14th day of November, 2019.

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