Norman v. Metropolitan Transportation Authority et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS: See attached Memorandum and Order. Upon a careful review of the record and Judge Orenstein's well-reasoned and thorough Report and Recommendation 25 , the court finds no clear error and hereby affirm s and adopts the Report and Recommendation in its entirety as the opinion of the court. Accordingly, defendant's 20 motion to dismiss under Rule 12(b)(6) is granted in its entirety. The Clerk of Court is respectfully directed to enter judgment in favor of defendant and to close this case. Ordered by Judge Kiyo A. Matsumoto on 9/15/2014. (Tsai, Denise)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ORDER ADOPTING REPORT
METROPOLITAN TRANSPORTATION AUTHORITY
and SERGEANT GARY HOYSTRADT,
MATSUMOTO, United States District Judge:
On March 6, 2013, plaintiff Michael Norman
(“plaintiff”) commenced this action against his employer,
defendant Metropolitan Transportation Authority (“MTA”), and an
individual supervisor, Sergeant Gary Hoysradt (“Hoysradt”) 1,
alleging that defendants discriminated against him based on his
race, created a hostile work environment, and retaliated against
him for filing an administrative complaint, in violation of
various federal, state, and municipal laws.
(See generally ECF
No. 1, Complaint filed 3/6/13 (“Compl.”); ECF No. 16, Amended
Complaint filed 6/27/13 (“Am. Compl.”).)
injunctive relief and an unspecified amount of damages.
Compl. at 11.)
The Complaint and Amended Complaint incorrectly spell defendant’s name
as “Hoystradt.” (See ECF No. 8, Plaintiff’s Letter in Response to Request
for Pre-Motion Conference dated 5/8/13, at 1 n.1.)
On October 8, 2013, defendants moved to dismiss
plaintiff’s Amended Complaint under Federal Rules of Civil
Procedure 12(b)(6) and 12(b)(1).
(ECF No. 20, Motion to Dismiss
filed 10/8/13 (“Def. Mot.”); ECF No. 21, Memorandum in Support
of Motion to Dismiss filed 10/8/13 (“Def. Br.”); ECF No. 22,
Reply in Support of Motion to Dismiss filed 10/8/13 (“Def.
On April 11, 2014, the court referred the
defendants’ motion to dismiss to the Honorable James Orenstein
for a Report and Recommendation.
(See Order Referring Motion
On August 1, 2014, Judge Orenstein issued a Report and
Recommendation recommending that the defendants’ motion pursuant
to Rule 12(b)(6) be granted. 2
(ECF No. 25, Report and
Recommendation dated 8/1/14 (“R&R”).)
Orenstein recommended dismissing plaintiff’s federal and state
law claims on the grounds of lack of timeliness and failure to
exhaust administrative remedies (see R&R at 6-9), and failure to
plead plausible claims of discrimination, retaliation, and a
hostile work environment (see R&R at 9-17).
The R&R further
recommended that the court decline to exercise supplemental
jurisdiction over plaintiff’s municipal law claims.
(R&R at 17-
On de novo and clear error review, Judge Orenstein correctly determined that
plaintiff’s claim should not be dismissed pursuant to Rule 12(b)(1) because
the failure to exhaust administrative remedies is not jurisdictional. (See
ECF No. 25, Report and Recommendation dated 8/1/14 (“R&R”), at 5 n. 3.)
The R&R also informed the parties that any objections
to the report must be filed within fourteen days of receipt of
the report, by August 18, 2014.
U.S.C. § 636(b)(1)).)
(See R&R at 18 (citing 28
Notice of the R&R was sent electronically
to defendants via the court’s electronic filing system on August
On August 15, 2014, plaintiff filed an objection to
(ECF No. 26; Plaintiff’s Objection to R&R filed
8/15/14 (“Pl. Obj.”).)
On August 28, 2014, defendants filed
their opposition to plaintiff’s objections.
(ECF No. 27,
Defendants’ Memorandum in Opposition to Objections filed 8/28/14
(“Opp. to Objections”).)
STANDARD OF REVIEW
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).
The district court “shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
28 U.S.C. § 636(b)(1).
Where “the objecting party makes
only conclusory or general objections, or simply reiterates the
original arguments, the Court will review the report and
recommendation strictly for clear error.”
Zaretsky v. Maxi-
Aids, Inc., No. 10-CV-3771, 2012 WL 2345181, at *1 (E.D.N.Y.
June 18, 2012) (internal quotation marks omitted); Mario v. P &
C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Merely
referring the court to previously filed papers or arguments does
not constitute an adequate objection”); see also Soley v.
Wasserman, 823 F. Supp. 2d 221, 228 (S.D.N.Y. 2011).
district court is “permitted to adopt those sections of a
magistrate judge’s report to which no specific objection is
made, so long as those sections are not facially erroneous.”
Batista v. Walker, No. 94 Civ. 2826, 1995 WL 453299, at *1
(S.D.N.Y. July 31, 1995) (Sotomayor, J.) (citation and internal
quotation marks and brackets omitted).
Furthermore, even on de
novo review of specific objections, the court “will not consider
‘arguments, case law, and/or evidentiary material which could
have been, but [were] not, presented to the magistrate judge in
the first instance.’”
Brown v. Smith, No. 09-CV-4522, 2012 WL
511581, at *1 (E.D.N.Y. Feb. 15, 2012) (quoting Kennedy v.
Adamo, No. 02-CV-1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1,
Plaintiff objects to two portions of the R&R.
plaintiff argues that Judge Orenstein erred in recommending that
plaintiff had not administratively exhausted his Title VII
discrimination claims to the extent they rested on Hoysradt’s
conduct prior to 2012.
(Pl. Obj. at 1.)
contends that Judge Orenstein used the wrong pleading standard
in recommending that plaintiff had failed to “‘allege an adverse
action (at any time) that suffices to state a claim under Title
VII, or the kind of objectively severe or pervasive
discrimination that suffices to support a hostile work
environment claim under federal or state law.’”
(Pl. Obj. at 1-
2, quoting R&R at 3-4.)
Plaintiff does not support his first objection
regarding administrative exhaustion with any specificity as to
the factual basis for his objection or any legal authority.
Consequently, plaintiff’s first objection fails to constitute an
adequate objection to warrant de novo review.
See P & C Food
Markets, Inc., 313 F.3d at 766.
As to plaintiff’s second objection, plaintiff merely
restates the same arguments already raised in his opposition to
the motion to dismiss.
(See ECF No. 24, Plaintiff’s Opposition
to Motion to Dismiss filed 10/8/13 (“Pl. Opp.”), at 4-5.)
Accordingly, the court will review the R&R strictly for clear
Zaretsky, 2012 WL 2345181, at *1.
Upon a review of the R&R and the record for clear
error, the court finds none. 3
Thus, the court respectfully
overrules plaintiff’s objections, and adopts Judge Orenstein’s
R&R in full.
Upon a careful review of the record and Judge
Orenstein’s well-reasoned and thorough Report and
Recommendation, the court finds no clear error and hereby
affirms and adopts the Report and Recommendation in its entirety
as the opinion of the court.
Accordingly, defendant’s motion to
dismiss is granted in its entirety.
The Clerk of Court is
respectfully directed to enter judgment in favor of defendant
and close this case.
September 15, 2014
Brooklyn, New York
Kiyo A. Matsumoto
United States District Judge
In an abundance of caution, the court, having reviewed the record and
relevant legal authorities in light of plaintiff’s objections, finds that
dismissal of plaintiff’s claims is warranted even under de novo review.
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