Bazie v. Mayorkas

Filing 63

ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the reasons stated in the attached order, the Court adopts in its entirety the 55 Report and Recommendation of the Honorable Lois Bloom. Defendant's 43 motion for judgment on the pleadings or, in the alternative, summary judgment is hereby granted, and the action is dismissed. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal in forma pauperis would not be taken in good faith. See Coppedge v. United States, 396 U.S. 438 (1962). The Clerk of Court is respectfully directed to mail a copy of this order to the Plaintiff. Ordered by Judge Nina R. Morrison on 3/10/2025. (AH)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DAKOUN BONVENTURE BAZIE,
Plaintiff,

22-cv-762 (NRM) (LB)

v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

ALEJANDRO N. MAYORKAS,
Defendant.

NINA R. MORRISON, United States District Judge:
Plaintiff Dakoun Bonventure Bazie brings this pro se employment
discrimination action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq. (“Title VII”) and the Americans with Disabilities Act of 1990, 42
U.S.C. §§ 12101 et seq. (“ADA”). Plaintiff alleges that he was discriminated against
and subsequently terminated by the U.S. Customs and Border Protection (“CBP”)
because of his race, color, national origin, and disability.
On January 16, 2024, Defendant moved for judgment on the pleadings
pursuant to Fed. R. Civ. P. 12(c), or, in the alternative, for summary judgment under
Fed. R. Civ. P. 56. Def.’s Mot. for Summary Judgment, ECF No. 43. On April 2, 2024,
this Court referred the motion to the Hon. Lois Bloom, United States Magistrate
Judge, for a Report and Recommendation (“R&R”). On August 19, 2024, Judge Bloom
recommended that Defendant’s motion be granted. R&R, ECF No. 55. Plaintiff filed
his objections to the R&R on September 26, 2024. Pl.’s Objection to R&R, ECF No.

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60. For the reasons discussed below this Court adopts Judge Bloom’s well-reasoned
R&R in full.
BACKGROUND
On February 4, 2022, Plaintiff brought this pro se suit alleging violations of
Title VII and the ADA, as well as the “Wounded Warriors Federal Leave Act of 2015,”
codified under 5 U.S.C. § 6329. See Compl. at 3, 5, ECF No. 1. Broadly, he claims
that while he was working his one-year probationary period as a Mission Support
Specialist at CBP, he was subject to disparate treatment because he is a Black
African, from Burkina Faso, and suffered from a disability — bilateral eyes tension
with severe headaches and dry eyes — and that his supervisor and coworker
conspired against him so they could have him fired and promote a different employee
into his position. See R&R at 2–6, ECF No. 55. Bazie also alleges that a coworker
illegally searched his personal property while he was away at lunch. Compl. at 8.
In her R&R recommending dismissal, Judge Bloom found that Plaintiff’s ADA
claim must be dismissed as it is barred by sovereign immunity. R&R at 12. Judge
Bloom also noted that, read liberally, the Complaint could be interpreted as bringing
a claim under the Rehabilitation Act of 1973. See id. Even then, however, Judge
Bloom recommended that the claim be dismissed at summary judgment because
Plaintiff has not alleged that he is disabled within the meaning of the Rehabilitation
Act. See id. at 14.
Judge Bloom also recommended dismissing the Title VII claim as none of
Plaintiff’s allegations established an inference of discrimination, and even if they did,
Defendant presented legitimate, non-discriminatory reasons for terminating
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Plaintiff. See id. at 17–19. Judge Bloom concluded that Plaintiff had failed to counter
these reasons with sufficient evidence that discrimination was more likely than not
the real reason for his termination, or that the legitimate reasons were simply
pretext. See id. at 19–22.
Lastly, Judge Bloom read Plaintiff’s Complaint liberally to consider a potential
claim under the Federal Torts Claims Act (“FTCA”) for the alleged illegal search of
Plaintiff’s bag, but found that claim to be barred by sovereign immunity as Plaintiff
did not administratively exhaust his remedies before bringing the suit in Federal
Court. See id. at 22–24.
Plaintiff filed nearly 400 pages of objections to Judge Bloom’s R&R on
September 26, 2024, many of which are directly copied from his original opposition to
Defendant’s initial motion. Compare Pl.’s Objection to R&R, with Plaintiff’s Answer
to Defendant’s Reply in Support papers, ECF No. 52.
DISCUSSION
A district 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); see also
Fed. R. Civ. P. 72(b)(3). Following the issuance of a R&R, the parties are given an
opportunity to file written objections to the R&R. See 28 U.S.C. § 636(b)(1). The
district judge must evaluate de novo “any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1) (“A
judge of the court shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”);

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United States v. Drago, No. 18-CR-0394 (SJF) (AYS), 2019 WL 3072288, *1 (E.D.N.Y.
July 15, 2019) (“Any portion of such a report and recommendation to which a timely
objection has been made is reviewed de novo.”). However, where a party files an
objection that is “conclusory or general . . . or simply reiterates [the] original
arguments,” that portion of the R&R is reviewed “only for clear error.” Pall Corp. v.
Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (quoting Barratt v. Joie, No. 96-cv324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002)). See generally Fed. R. Civ. P.
72(b)(3).
After careful review of Judge Bloom’s R&R, Plaintiff’s Objections, Defendant’s
original motion and Plaintiff’s original opposition to the motion, this Court finds that
for only one claim Plaintiff’s objections can be interpreted as not simply a restatement
of his unsuccessful arguments before Judge Bloom.
Plaintiff contends that Judge Bloom incorrectly recommended dismissing his
Title VII claim because, inter alia, he was not trained properly for the position. See
Objections at 9–10. Judge Bloom, however, did consider this same argument, and
found that many of the reasons for Plaintiff’s termination were not due to his training.
See R&R at 20. This Court finds no clear error in that finding.
Plaintiff also argues that the R&R failed to consider the allegations of “slavery
work conditions” that Plaintiff was subjected to when he had to put barcodes on
computer equipment. Objections at 21. However, Judge Bloom specifically noted
these allegations, and found that they did not give rise to an inference of
discrimination. See R&R at 17. The Court finds no clear error in that finding.

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Plaintiff additionally contends that Judge Bloom was mistaken in finding that
Plaintiff had not administratively exhausted his claim under the FTCA because he
emailed his supervisor to complain about his coworker illegally searching his bag.
See Objections at 16. However, this does not change the fact that there was no error
in Judge Bloom’s finding that Plaintiff did not present his tort claim to the
appropriate federal agency, and that this Court therefore lacks subject matter
jurisdiction over Plaintiff’s FTCA claim. See R&R at 22–24.
Read liberally, only one of Plaintiff’s objections could be construed as properly
specific and potentially subject to de novo review: that Judge Bloom should have read
Plaintiff’s complaint to include a cause of action under the “Wounded Warriors
Federal Leave Act of 2015,” codified under 5 U.S.C. § 6329. Objections at 4. It is true
that the R&R does not analyze Plaintiff’s complaint as including a claim under § 6329,
and the Court therefore reviews this claim de novo.
However, there is no merit to this claim. “The terms of the United States’s
consent to be sued in any court define that court’s jurisdiction to entertain the suit.”
Hamm v. United States, 483 F.3d 135, 137 (2007) (alterations adopted) (quoting
United States v. Sherwood, 312 U.S. 584, 586 (1941)). Just as Judge Bloom noted in
the R&R regarding Plaintiff’s ADA claim, for the government to be subject to suit and
not protected by sovereign immunity, “a waiver of immunity . . . must be
unequivocally expressed.” Lehman v. Nakshian, 453 U.S. 156, 161 (1981); See also
R&R at 22. Nothing in the text of 5 U.S.C. § 6329 suggests that Congress intended
to create a private right of action to sue for violations of its terms, and thus this Court

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lacks subject matter jurisdiction to hear a claim pursuant to § 6329. See Wake v.
United States, 89 F.3d 53, 57 (2d Cir. 1996) (explaining that sovereign immunity is a
“jurisdictional issue”).
CONCLUSION
For the foregoing reasons, the Court adopts Judge Bloom’s Report and
Recommendation dated August 19, 2024, in full. Defendant’s motion for judgment on
the pleadings pursuant to Fed. R. Civ. P. 12(c) or, in the alternative, summary
judgment pursuant to Fed. R. Civ. P. 56 is hereby granted, and the action is
dismissed. The Court certifies in writing pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal in forma pauperis would not be taken in good faith. Coppedge v. United States,
369 U.S. 438, 445 (1962).

SO ORDERED.
/s/ Nina R. Morrison
NINA R. MORRISON
United States District Judge
Dated: Brooklyn, New York
March 10, 2025

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