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Silva v. Peninsula Hotel

September 17, 2007



Plaintiff Hector Silva, proceeding pro se, brings suit against the Peninsula New York Hotel (the "Hotel") and the International Union of Operating Engineers, Local 94-94A-94B (the "Union"). Silva, a Hispanic male and former Hotel employee, brings three sets of claims against the Hotel under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). Silva alleges that the Hotel failed to train and promote him, that the Hotel discriminated against him in its allocation of overtime, and that the Hotel suspended, and eventually terminated, his employment in retaliation for his claims of discrimination. Silva's amended complaint alleges that the Union discriminated against him on account of his race in violation of Title VII. Silva also accused the Union of "non-representation," which has been interpreted as a claim that the Union breached its duty of fair representation in connection with Silva's grievances against the Hotel.

Defendants each moved for summary judgment on all of Silva's claims in his Amended Complaint. On May 18, 2007, Magistrate Judge Theodore Katz issued a Report and Recommendation (the "Report") recommending that defendants' motions for summary judgment be granted, and that all of Silva's claims against defendants be dismissed. Silva filed timely objections to the Report ("Objections"); the Court has received no objections from defendants. For the reasons set forth below, the Court grants defendants' motions for summary judgment and adopts the Report in its entirety.


The facts underlying Silva's claims are extensively outlined in the Report, familiarity with which is assumed, and which is attached to this Opinion for ease of reference.

I. Standard of Review

The district court adopts a magistrate judge's report and recommendation when no clear error appears on the face of the record. See Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). However, the court is required to make a de novo determination of those portions of a report to which objection is made, 28 U.S.C. § 636(b)(1)(C), by reviewing "the Report, the record, applicable legal authorities, along with Plaintiff's and Defendant's objections and replies." Badhan v. Lab. Corp. of Am., 234 F. Supp. 2d 313, 316 (S.D.N.Y. 2002). The court may then accept, reject, or modify in whole or in part recommendations of the Magistrate Judge. See Nelson, 618 F. Supp. at 1189. If, however, the party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Sanchez v. Dankert, No. 03 Civ. 2276 (LTS), 2004 U.S. Dist. LEXIS 3716, 2004 WL 439502, at *1 (S.D.N.Y. Mar. 9, 2004); accord Johnson v. City Univ. of New York, No. 00 CV 4964 (WK), 2003 U.S. Dist. LEXIS 10615, 2003 WL 21435469, at *1 (S.D.N.Y. June 19, 2003); Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997). "If no objections are filed, or where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition, reviewing courts should review a report and recommendation for clear error." Edwards v. Fischer, 414 F. Supp. 2d 342, 346--47 (S.D.N.Y. 2006) (internal quotation marks and citations omitted).

II. Silva's Objections

For the most part, Silva's objections consist simply of a restatement of his bare claims of discrimination. However, Silva's response appears to raise two specific objections to Judge Katz's Report.*fn1 Silva first claims that he was not properly notified of the import of the motions for summary judgment as required by Local Civil Rule 56.2. (Objections 3.)

Second, Silva objects to the Report's characterization of the facts underlying his failure to train and promote claim, and seeks additional time to obtain documents relating to grievances filed by the Union against the Hotel in 1995 and 1996 whose resolution Silva claims should have governed promotions to the position of Electronic Low Voltage Engineer. (Objections 4.)

Silva's first objection that he was not given proper notice as a pro se litigant under Local Civil Rule 56.2 is without merit. Such notice*fn2 was served on Mr. Silva on September 14, 2006 by Federal Express Mail and U.S Postal Service Mail. (Def. Hotel Mot. for Summ. J. 3.)

Silva's second objection is merely a repetition of arguments explicitly rejected by Judge Katz in his thorough and well-reasoned Report. Specifically, Silva's claim that he was qualified for the ELV position was considered by Judge Katz but rejected as time-barred and unsupported by specific admissible evidence. (Report 5, 21--23, 30--33.) Additionally, Silva's request for additional time to obtain documents relating to Union grievances against the Hotel from 1995 and 1996 is repetitive of earlier requests for additional discovery rejected by Judge Katz. (See Endorsed Letter (Sept. 5, 2006) [22]; Endorsed Letter (Sept. 22, 2006) [30].) Moreover, the Court notes that the cited Union grievances ...

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