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Doverspike v. International Ordinance Technologies

March 17, 2010

LOUISE MARIE DOVERSPIKE, PLAINTIFF,
v.
INTERNATIONAL ORDINANCE TECHNOLOGIES,*FN1 DEFENDANT.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

(consent)

DECISION and ORDER

JURISDICTION

On November 10, 2009, the parties to this action consented pursuant to 28 U.S.C. § 636(c)(1) to proceed before the undersigned. The matter is presently before the court on Defendant's motion to dismiss (Doc. No. 4), filed July 14, 2009, and on Plaintiff's motion that this case be kept active (Doc. No. 11), filed July 30, 2009.

BACKGROUND

Plaintiff Louise Marie Doverspike ("Plaintiff" or "Doverspike"), proceeding pro se, commenced this action on May 15, 2009, alleging employment discrimination and retaliation, based on race, national origin, religion, age and disability, against former employer, Defendant International Ordnance Technologies ("Defendant" or "International Ordnance"), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") (race and religion), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("the ADEA"), and Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ("the ADA") (disability). Defendant did not file an answer; rather, on July 14, 2009, Defendant filed the instant motion to dismiss the Complaint (Doc. No. 4) ("Defendant's motion"), along with supporting papers, including the Affirmation of Edward J. Wagner, Esq. ("Wagner") (Doc. No. 5) ("Wagner Affirmation"), and a Memorandum of Law (Doc. No. 6) ("Respondent's Memorandum"). The court's July 24, 2009 scheduling order (Doc. No. 8), directs that Plaintiff's response to Defendant's motion be filed by August 28, 2009, and also advises that Plaintiff's failure to respond to Defendant's motion may result in the dismissal of the action for failure to prosecute.

By letter to the court filed July 28, 2009 (Doc. No. 10) ("July 28, 2009 Letter"), Plaintiff advised that she was requesting the action not be dismissed, stating she "would like to make the motion to keep this case open because I [Plaintiff] am legally and morally in the right." July 28, 2009 Letter at 1. Plaintiff further requested the court send her any papers she would need to prepare such motion. July 28, 2009 Letter at 2.

In opposition to Defendant's motion, Plaintiff filed an affidavit on July 30, 2009 (Doc. No. 11) ("Plaintiff's Affidavit"), stating she was "making the motion that this case be kept active," because she was qualified for the position from which she had been terminated, she experienced human and civil rights violations at previous places of employment, and that Plaintiff is "legally and morally in the right . . . ." Plaintiff's Affidavit at 2.

By letter to the court filed August 26, 2009 (Doc. No. 12) ("August 26, 2009 Letter"),*fn2 Wagner advised that Defendant did not intend to file any papers in further support of Defendant's motion. On August 27, 2009, Defendant filed the Affirmation of Edward J. Wagner (Doc. No. 14) ("Wagner Reply Affirmation"), reiterating what Defendant previously stated in the August 26, 2009 Letter, i.e., that Defendant did not intend to file further papers in support of Defendant's motion, but would rely on the original motion papers. Oral argument was deemed unnecessary.

Based on the following, Defendant's motion is GRANTED.

FACTS*fn3

Plaintiff, who is a Native American holding Native American spiritual beliefs, suffers from hypothyroidism (underactive thyroid), unspecified "ear problems," history of an abscessed tooth, and was, at all time relevant to this action, 48 years old.*fn4 On October 14, 2007, Plaintiff commenced working a full-time, permanent position with Defendant. Although Plaintiff does not provide the title of her position with Defendant, nor the precise nature of Defendant's business other than "metal industry," Complaint at 19,, Plaintiff describes the duties for the employment position as inspecting small, metal parts for flaws as the parts moved by Plaintiff on a conveyor belt, Complaint at 7, and feeding the small metal parts into a tube to send the parts to the "presses." Complaint at 8. Plaintiff describes her first day on the new job as follows:

I felt a little nauseated the motion of watching the parts move on the conveyor belt made me extremely ill. I began to feel extremely light head [sic] and I was trying very hard to hold myself together because I did not want to be terminated. I really needed a ...


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