Garcia v. College of Staten Island

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Memorandum and Order, the Report and Recommendation issued by Magistrate Judge Bloom on 7/31/12 is adopted in its entirety. Defendant's motion to dismiss is g ranted in part and denied in part, as follows: (1) plaintiff's hostile work environment/sexual harassment claim is dismissed except for the claim based on allegations of harassment by Officer Robertson; (2) plaintiff's retaliation claims ar e dismissed except those based on plaintiff's complaint of Robertson's harassment, Mallon's promotion, and Clark's misconduct regarding Leung; (3) defendant's motion to dismiss the 2007 failure-to-promote claim is denied as m oot. The remainder of plaintiff's claims will proceed.The parties are directed to meet and confer and to contact Magistrate Judge Bloom in the near future to set a schedule for discovery. Additionally, the parties are ordered to submit a joint status letter to the court on or before October 3, 2012. Defendant shall serve a copy of this Memorandum and Order upon plaintiff and file a certificate of service via ECF by September 12, 2012. Ordered by Judge Kiyo A. Matsumoto on 9/10/2012. (Kelley, Jamuna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------- X
JOHN GARCIA,
ORDER ADOPTING REPORT
AND RECOMMENDATION

Plaintiff,
-against-

11-CV-2252(KAM)(CLB)
COLLEGE OF STATEN ISLAND,
CITY UNIVERSITY OF NEW YORK,
Defendant.
X
---------------------------------------

MATSUMOTO, United States District Judge:
On May 10, 2011, plaintiff John Garcia (“Garcia”),
proceeding pro se, commenced this employment discrimination
action against defendant College of Staten Island, City
University of New York (“defendant”), pursuant to Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e,
et seq.

(ECF No. 1.)

Defendant moved to dismiss the complaint

for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6), plaintiff filed a response, and defendant
subsequently replied.

(ECF Nos. 13-18.)

Presently before the

court is a Report and Recommendation issued by Magistrate Lois
Bloom on July 31, 2012, recommending that the court grant in
part and deny in part defendant’s motion to dismiss. (ECF No.
21, Report and Recommendation dated 7/31/2012 (“R&R”), at 21.)
As explicitly noted at the end of the Report and

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Recommendation, any objections to the Report and Recommendation
were to be filed within 14 days of service of the Report and
Recommendation.

(R&R at 22.)

The Clerk of Court served the

Report and Recommendation on the pro se plaintiff by mail on
July 31, 2012.

(See docket entry dated 7/31/12.)

The statutory

period for filing objections has expired, and no objections to
Magistrate Judge Bloom’s Report and Recommendation have been
filed.
In reviewing a Report and Recommendation, the district
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C).

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Where no objection to the Report and

Recommendation has been filed, the district court “need only
satisfy itself that that there is no clear error on the face of
the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985)).
Upon a careful review of the Report and Recommendation
and the record in this case, and considering that neither party
has objected to any of Magistrate Judge Bloom’s thorough and
well-reasoned recommendations, the court finds no clear error in
the Report and Recommendation and hereby affirms and adopts it
as the opinion of the court.
Accordingly, the court orders that defendant’s motion

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to dismiss should be granted in part and denied in part, as
follows:

(1) plaintiff’s hostile work environment/sexual

harassment claims are dismissed except for the claim based on
allegations of harassment by Officer Robertson; (2) plaintiff’s
retaliation claims are dismissed except those based on Officer
Robertson’s harassment, Officer Mallon’s promotion, and Officer
Clark’s misconduct regarding Officer Leung; and (3) defendant’s
motion to dismiss the 2007 failure-to-promote claim is denied as
moot.

The remainder of plaintiff’s claims will proceed.

CONCLUSION
Defendant’s motion to dismiss is granted in part and
denied in part, as follows:

(1) plaintiff’s hostile work

environment/sexual harassment claim is dismissed except for the
claim based on allegations of harassment by Officer Robertson;
(2) plaintiff’s retaliation claims are dismissed except those
based on plaintiff’s complaint of Robertson’s harassment,
Mallon’s promotion, and Clark’s misconduct regarding Leung; (3)
defendant’s motion to dismiss the 2007 failure-to-promote claim
is denied as moot.

The remainder of plaintiff’s claims will

proceed.
The parties are directed to meet and confer and
contact Magistrate Judge Bloom in the near future regarding
setting a schedule for discovery to proceed.

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Additionally, the

parties are ordered to submit a joint status letter to the court
on or before October 3, 2012.

Defendant shall serve a copy of

this Memorandum and Order upon plaintiff and file a certificate
of service via ECF by September 12, 2012.

SO ORDERED.

Dated:

September 10, 2012
Brooklyn, New York
___/s/______ _____
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York

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