United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge
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.
The Report and Recommendation
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.
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.
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).
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,
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).
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.”).
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.
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 ...