Glenn v. Kaleida Health

Filing 18

ORDER ADOPTING 17 REPORT AND RECOMMENDATION denying defendant's 11 MOTION TO DISMISS except as to the plaintiff's Title VII disparate treatment and 42 U.S.C. § 1981 claims. FURTHER, granting plaintiff's 13 cross-motion fo r leave to file a second amended complaint except as to the duplicative sixth cause of action, as specified. The case is returned to Judge McCarthy for further handling consistent with the 7 referral dated March 17, 2017. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 8/28/2017. (CMD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________
JOHANNA GLENN,
Plaintiff,

17-CV-25(LJV)(JJM)
ORDER

v.
KALEIDA HEALTH,
Defendant.
__________________________________

On March 17, 2017, this Court referred this case to United States Magistrate
Judge Jeremiah J. McCarthy for all proceedings pursuant to 28 U.S.C. § 636(b)(1)(A)
and (B). Docket Item 7. The day before, on March 16, 2017, the defendant had moved
to dismiss for failure to state a claim. Docket Item 5. In lieu of responding, the plaintiff
filed an amended complaint, Docket Item 9, and by consent of counsel the original
motion to dismiss was withdrawn, Docket Item 10. On April 17, 2017, the defendant
again moved to dismiss for failure to state a claim, Docket Item 11, and on May 8, 2017,
the plaintiff responded and cross-moved to amend the complaint a second time, Docket
Item 13. Both sides then submitted replies, Docket Items 15 and 16, and the case was
submitted without oral argument, see Docket Item 14.
On July 7, 2017, Judge McCarthy issued a Report and Recommendation finding
that the defendant’s motion to dismiss should be granted in part and denied in part, and
that the plaintiff’s motion to amend should be granted except for a duplicative claim and
to the extent that certain allegations were time-barred. Docket Item 17. The parties did

not object to the Report and Recommendation, and the time to do so now has expired.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
A district court may accept, reject, or modify, in whole or in part, the findings or
recommendation of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
A district court must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which objection is made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(3). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72 requires a
district court to review the recommendation of a magistrate judge to which no objections
are addressed. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985).
Although not required to do so in light of the above, this Court nevertheless has
reviewed Judge McCarthy’s Report and Recommendation. Based on that review and
the absence of any objections, the Court accepts and adopts Judge McCarthy
recommendation in its entirety.
The plaintiff—a Caucasian woman—claims that her employment was terminated
and that she was the target of employment-related corrective action because she
complained about a racially-based hostile work environment, not because of
discrimination. And while she alleges that the higher-ups at her place of employment
tolerated that hostile environment, she does not allege—except obliquely in an
argument heading—that her employer took any adverse employment action against her
for racial reasons. Her allegations of disparate treatment therefore do not state a claim
upon which relief can be granted.

2

On the other hand, the plaintiff has adequately alleged her other claims, including
hostile work environment, retaliation, and violations of the Americans with Disabilities
Act of 1990 and the New York State Human Rights Law.
For those reasons, and for the reasons more clearly stated in Judge McCarthy’s
Report and Recommendation filed on July 7, 2017, the defendant’s motion to dismiss is
DENIED except as to the plaintiff’s Title VII disparate treatment and 42 U.S.C. § 1981
claims. The plaintiff’s cross-motion for leave to file a second amended complaint is
GRANTED except as to the duplicative sixth cause of action. 1 And the case is returned
to Judge McCarthy for further handling consistent with the referral dated March 17,
2017. See Docket Item 7.
SO ORDERED.
Dated: August 28, 2017
Buffalo, New York
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

1

Judge McCarthy found that the plaintiff’s motion to amend also should be denied
insofar as it relies on time-barred conduct (i.e., “conduct that occurred more than 300
days prior to the filing of the EEOC charge.”) to support the plaintiff’s fifth cause of
action. Docket Item 17. This Court agrees in principle but notes that whether conduct
is time-barred may require some analysis and argument (e.g., whatever conduct is part
of a continuing violation) that is inappropriate at this stage. For that reason, this Court
grants the motion to amend except as to the sixth cause of action, with time-barred
conduct to be sorted out later.
3