The opinion of the court was delivered by: Kenneth M. Karas, District Judge
ORDER ADOPTING REPORT & RECOMMENDATION
Pro se Plaintiff Charles Gore ("Plaintiff") filed a Complaint and an Amended Complaint against Defendant The RBA Group, Inc. ("Defendant" or "RBA") on November 20, 2003, and February 20, 2004, respectively. Subsequently, Plaintiff obtained counsel and, on July 1, 2004, filed a Second Amended Complaint against RBA and Haider Engineering ("Haider"), alleging unlawful racial harassment pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981, New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq., and New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., stemming from events occurring in March 2002.*fn1
On January 22, 2004, this case was referred to Magistrate Judge Francis for pretrial case management and dispositive motions. The case was reassigned to this Court on October 5, 2004. On April 27, 2005, Defendant filed this Motion for Summary Judgment, and on August 29, 2005, Magistrate Judge Francis issued a Report and Recommendation ("R&R"), recommending that the Motion be denied. For the reasons stated Magistrate Judge Francis's thoughtful R&R and herein, Defendant's Motion for Summary Judgment is denied in its entirety. The relevant facts are thoroughly discussed in Magistrate Judge Francis's R&R, and the Parties' familiarity with them is assumed.
"The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant . . . ." Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 253-54 (2d Cir. 2002). To defeat Defendant's Motion for Summary Judgment, Plaintiff must make a sufficient showing of proof on each element of his claim for which he bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (holding that the moving party is not required "to produce evidence showing the absence of a genuine issue of material fact"); Adorno v. Lord & Taylor, No. 97-CV-4444, 1999 WL 759995, at *2 (S.D.N.Y. Sept. 27, 1999) (holding that plaintiff must prove "there is a reasonable amount of proof supporting the essential elements of his case which must be proved at trial").
B. Reviewing a Magistrate Judge's Report and Recommendation
A district court reviewing a report and recommendation "'may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.'" Donahue v. Global Home Loans & Fin., Inc., No. 05-CV-836, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007) (quoting 28 U.S.C. § 636(b)(1)(C)). Under 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, parties may submit objections to a magistrate judge's report and recommendation. The objections must be "specific" and "written," and must be made "within 10 days after being served with a copy of the recommended disposition." Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). Where a party does not submit an objection, "'a district court need only satisfy itself that there is no clear error on the face of the record.'" Donahue, 2007 WL 831816, at *1 (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)).
If a party submits a timely objection to a report and recommendation, the district judge will review the parts of the report and recommendation to which the party objected under a de novo standard of review. See 28 U.S.C. § 636(b)(1)(C) ("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."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.").
The Parties' objections to the R&R were due September 19, 2005. Pursuant to Fed. R. Civ. P. 72, the ten-day period in which to file objections commences from the date the report and recommendation is served. Service by mail is "complete upon mailing." Fed. R. Civ. P. 5(b)(2)(C). A mailing occurs at the "'instant the documents are placed into the hands of the United States Post Office or a Post Office Box.'" Greene v. WCI Holdings Corp., 136 F.3d 313, 315 (2d Cir. 1998) (quoting United States v. Kennedy, 133 F.3d 53, 59 (D.C. Cir. 1998)).
On September 19, 2005, Defendant sent a letter to this Court seeking clarification regarding the time limit within which the Parties were required to file objections to the R&R. In its letter, Defendant calculated that its objections were due by September 23, 2005. Defendant's calculations were inaccurate. The R&R stated that copies were mailed to the Parties on August 29, 2005. (R&R 19.) However, the envelope containing Defendant's copy of the R&R was postmarked August 30, 2005. Therefore, Defendant had until September 19, 2005 -- ten days from August 30, not including weekends or holidays, and adding three days for mail service -- to file its written objections.*fn2
On September 22, 2005, the Court ordered Defendant to submit a motion to file the objections out-of-time pursuant to Fed. R. Civ. P. 6(b), along with its objections, by September 23, 2005. At the time, the Court was under the impression that Defendant's time to file objections had expired on September 16, 2005. However, given that Defendant's time to file objections did not expire until September 19, 2005, the Court will construe its September 19, 2005 letter seeking clarification as a request for an enlargement of time under Fed. R. Civ. P. 6(b)(1). The Court grants Defendant's request. Because Defendant filed its objections on September 23, 2005, as ordered, its objections were timely filed. Therefore, the Court has conducted a de novo review of those portions of the R&R to which specific objections were made. See United States v. Raddatz,447 U.S. 667, 673-74 (1980) (citing 28 U.S.C. § 636(b)(1)).
II. Defendant's Objections
Defendant has moved for summary judgment on two grounds: (1) Plaintiff's Title VII claim fails because no employer-employee relationship existed between the Parties during the relevant time period; and (2) even if there was an employer-employee relationship between the Parties during the relevant time period, Plaintiff's hostile work environment claim fails because Plaintiff has not established vicarious liability on behalf of Defendant. Defendant objects to Magistrate Judge Francis's rejection of these two claims. Additionally, Defendant objects ...