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Carvalho v. Associated Brands, Inc.

United States District Court, W.D. New York

January 31, 2017

ADAM CARVALHO, Plaintiff,
v.
ASSOCIATED BRANDS, INC., Defendant.

          DECISION AND ORDER

          MICHAEL A. TELESCA United States District Judge

         I. Introduction

         Pro se plaintiff Adam Carvalho (“plaintiff”), a former employee of defendant Associated Brands, Inc. (“defendant”), brings this action pursuant to the Americans with Disabilities Act (“ADA”), as amended, 42 U.S.C. § 12101 et. seq., asserting claims of discrimination and retaliation. This case was originally assigned to District Judge Richard J. Arcara, who referred it to Magistrate Judge Michael J. Roemer for consideration of the factual and legal issues presented, and to prepare and file a Report and Recommendation (“R&R”) containing a recommended disposition of the issues raised in defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56. Judge Roemer issued an R&R on May 13, 2016, in which he recommended that defendant's motion be granted in its entirety. See doc. 43. On May 31, 2016, plaintiff filed objections to the R&R. See doc. 44. For the reasons discussed below, the Court adopts the R&R and grants defendant's motion for summary judgment in its entirety.

         II. The Report and Recommendation[1]

         Defendant's motion for summary judgment argues that plaintiff has failed to come forward with any evidence of discrimination, hostile work environment, or retaliation. See doc. 32 (Memorandum of Law in Support of Summary Judgment Motion [doc. 28]). Judge Roemer's R&R recommends that defendant's motion be granted in its entirety. Specifically, Judge Roemer's R&R finds that plaintiff has failed to establish two claims of failure to promote, because the first (regarding a September 24, 2012 promotion) was untimely and because the second (regarding an August 2013 promotion) was supported by defendant's legitimate, nondiscriminatory reasons. See doc. 43 at 11-18. Second, the R&R finds that plaintiff has failed to come forward with credible evidence of discrimination surrounding defendant's alleged refusal to treat certain of plaintiff's absences as FMLA-qualifying and in denying him an interview for a promotional position. See id. at 18-21. Third, the R&R finds that plaintiff failed to establish a hostile work environment because the actions alleged were neither severe nor pervasive. See id. at 21-24. Finally, the R&R finds that plaintiff failed to establish a claim of retaliation because he failed to allege adverse employment action and failed to show that there was any causal relation between his protected activity and the alleged adverse actions. See id. at 24-27.

         plaintiff's objections to the R&R consist of several disputes with various factual and legal findings of the R&R. Defendant's response to the objections contends that plaintiff's objections are alternately baseless or merely reiterate previous arguments that were considered by Judge Roemer in the R&R.

         III. Standard of Review

          Pursuant to Rule 56 of the Federal Rules of Civil Procedure, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Once the movant has met this burden, the burden shifts to the nonmovant who must “come forward with evidence to allow a reasonable jury to find in his favor.” Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir. 2001); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325-27 (1986). The court must draw all factual inferences, and view the factual assertions in materials such as affidavits, exhibits, and depositions in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Celotex, 477 U.S. at 322. However, a nonmovant benefits from such factual inferences “only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007), quoting Fed.R.Civ.P. 56(c).

         Where, as here, the party opposing summary judgment is proceeding pro se, the Court must “read the pleadings . . .liberally and interpret them to raise the strongest arguments that they suggest.” Corcoran, 202 F.3d at 536. However, “proceeding pro se does not otherwise relieve [the plaintiff] from the usual requirements of summary judgment.” Fitzpatrick v. N.Y. Cornell Hosp., 2003 WL 102853, *5 (S.D.N.Y. Jan. 9, 2003).

         In reviewing a report and recommendation, the 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)(C). The district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Where “the objecting party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the report and recommendation strictly for clear error.” Zaretsky v. Maxi-Aids, Inc., 2012 WL 2345181, *1 (E.D.N.Y. June 18, 2012) (internal quotation marks omitted). Even where a plaintiff proceeds pro se, objections to an R&R will be reviewed for clear error where they “merely reiterate[] [his] original arguments and state[] a general disagreement with the outcome of the R&R.” Freeman v. Dep't of Env. Prot., 2013 Wl 801684, *2 (E.D.N.Y. Mar. 5, 2013); see Almonte v. N.Y.S. Div. of Parole, 2006 WL 149049, *4-5 (N.D.N.Y. Jan. 18, 2006) (explaining that resubmitting the same arguments previously made “fails to comply with the specificity requirement”). The district court is “permitted to adopt those sections of a magistrate judge's report to which no specific objection is made, so long as those sections are not facially erroneous.” Batista v. Walker, 1995 WL 453299, *1 (S.D.N.Y. July 31, 1995) (citation and internal quotation marks and brackets omitted).

         Even on de novo review of specific objections, the court “will not consider ‘arguments, case law, and/or evidentiary material which could have been, but [were] not, presented to the magistrate judge in the first instance.'” Brown v. Smith, 2012 WL 511581, *1 (E.D.N.Y. Feb. 15, 2012) (quoting Kennedy v. Adamo, 2006 WL 3704784, *1 (E.D.N.Y. Sept. 1, 2006)); see Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998) (noting that the Second Circuit has upheld the exercise of the district court's discretion in refusing to allow supplementation of the record upon the district court's de novo review of a magistrate judge's report and recommendation); Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994) (“In objecting to a magistrate's report before the district court, a party has “no right to present further testimony when it offer[s] no justification for not offering the testimony at the hearing before the magistrate.”).

         IV. Discussion

         Plaintiff makes various objections to the factual findings of the R&R. The Court will consider each (as numbered by plaintiff in his objections) in turn. For the reasons that follow, the Court overrules plaintiff's objections, adopts the R&R in its entirety, and grants defendant's motion for summary judgment in its entirety.

         (1) Plaintiff objects to the R&R's characterization of his claims as brought pursuant to the Americans with Disabilities Act of 1990, contending that he brings the action pursuant to the Act's Amendments of 2008. The Court clarifies, for plaintiff's understanding, that his action is brought pursuant to the ADA and any relevant amendments. Furthermore, the R&R followed the ...


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