Committe v. Pippin
ORDER that the Report and Recommendation of Magistrate Judge William G. Cobb ECF No. 3 is accepted and adopted; Plaintiffs Application to Proceed In Forma Pauperis ECF No. 1 is granted; the Clerk file the Complaint ECF No. 1 -1; this action is dismissed with prejudice; Clerk is instructed to close this case. Signed by Judge Miranda M. Du on 10/10/2017. (Copies have been distributed pursuant to the NEF - KW)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 3:17-cv-00446-MMD-WGC
ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
WILLIAM G. COBB
SONJA PIPPIN, et al.,
Before the Court is the Report and Recommendation of United States Magistrate
Judge William G. Cobb (ECF No. 3) (“R&R” or “Recommendation”). The Magistrate
Judge recommends granting Plaintiff’s Application to Proceed In Forma Pauperis (ECF
No. 1) and dismissing the Complaint (ECF No. 1-1) with prejudice. Plaintiff timely filed an
objection thereto on August 11, 2017 (“Objection”) (ECF No. 4).
This Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party
timely objects to a magistrate judge’s report and recommendation, then the court is
required to “make a de novo determination of those portions of the [report and
recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). In light of Plaintiff’s
objection, the Court engages in a de novo review to determine whether to adopt
Magistrate Judge Cook’s Recommendation.
The Magistrate Judge found that Plaintiff fails to state a claim under 42 U.S.C. §
1983 or the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et. seq.,
based on the decision of Defendant Sonja Pippin, an accounting faculty member of the
University of Nevada, Reno who was in charge of the search for a new accounting
faculty member to start in the Fall of 2017. (ECF No. 4.) Plaintiff alleges that Pippin did
not select him because of his older age. (ECF No. 1-1 at 2.) In his objection, Plaintiff
asserts that he is not alleging a claim under the ADEA, but is asserting a section 1983
equal protection claim. (ECF No. 4 at 2.) However, the Ninth Circuit Court of Appeals
has held that “the ADEA precludes the assertion of age discrimination in employment
claims, even those seeking to vindicate constitutional rights, under § 1983.” Ahlmeyer v.
Nev. Sys. Of Higher Educ., 555 F.3d 1051, 1057 (9th Cir. 2009).
exclusive remedy is relief under the ADEA. Plaintiff argues that Ahlmeyer was overruled
by the Seventh Circuit Court of Appeals in Levin v. Madiga, 692 F.3d 607 (7th Cir. 2012).
However, the Seventh Circuit cannot overrule the Ninth Circuit. The Court is bound by
the Ninth Circuit Court’s holding that the ADEA is the exclusive remedy for alleged age
discrimination in the employment context. (ECF No. 4 at 2.) The Court therefore agrees
with the Magistrate Judge’s recommendation and adopts the R&R in full.
Recommendation of Magistrate Judge William G. Cobb (ECF No. 3) is accepted and
adopted in its entirety.
It is further ordered that Plaintiff’s Application to Proceed In Forma Pauperis (ECF
No. 1) is granted
It is further ordered that the Clerk file the Complaint (ECF No. 1-1).
It is ordered that this action is dismissed with prejudice.
The Clerk is instructed to close this case.
DATED THIS 10th day of October 2017.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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