McDowell v. McDonough

W.D. New York

McDowell v. McDonough

District Court, W.D. New York·Decided January 31, 2023·No. 1:21-cv-00338·Unknown

Opinion

SIMIES DISTRI UNITED STATES DISTRICT COURT Comes WESTERN DISTRICT OF NEW YORK JAN 31 2023 Tt Leg □ TYRONE MCDOWELL, Plaintiff, Vv. 21-CV-338 DENIS MCDONOUGH, Secretary Department of Veterans Affairs, Defendant.

DECISION AND ORDER Plaintiff Tyrone McDowell commenced this action on March 3, 2021, alleging discrimination on the basis of race and color, harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (‘Title VII”). Dkt. 1. On June 6, 2022, McDonough moved to dismiss the Complaint. Dkt. 33. Plaintiff opposed the motion, Dkt. 41, and McDonough replied. Dkt. 48. This Court referred the case to United States Magistrate Judge Jeremiah J. McCarthy for all proceedings under 28 U.S.C. §§ 636(b)(1)(A), (B), and (C). Dkt. 17. On December 21, 2022, Judge McCarthy issued a Report and Recommendation (“R&R”) recommending that this Court deny McDonough’s motion to dismiss. Dkt. 49. On January 4, 2023, McDonough objected to the R&R. Dkt. 50. Plaintiff did not respond to the objections, and the time to do so has expired. A district court may accept, reject, or modify the findings or recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A district

court must conduct a de novo review of those portions of a magistrate judge’s recommendation to which a party objects. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72 requires a district court to review the recommendation of a magistrate Judge to which no objections are raised. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). This Court carefully reviewed the R&R, the objections briefing, and the relevant record. Based on its de novo review, this Court accepts and adopts Judge McCarthy's recommendation. For the reasons stated above and in the R&R, the Court DENIES McDonough’s [83] motion to dismiss. The case is referred back to Judge McCarthy for further proceedings consistent with the December 22, 2021 referral order (Dkt. 17).

SO ORDERED.

Dated: January 31, 2023 Buffalo, New York MO J, L. SINATRA, J&. ITED STATES DI JUDGE

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SIMIES DISTRI UNITED STATES DISTRICT COURT Comes WESTERN DISTRICT OF NEW YORK JAN 31 2023 Tt Leg □ TYRONE MCDOWELL, Plaintiff, Vv. 21-CV-338 DENIS MCDONOUGH, Secretary Department of Veterans Affairs, Defendant.

DECISION AND ORDER Plaintiff Tyrone McDowell commenced this action on March 3, 2021, alleging discrimination on the basis of race and color, harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (‘Title VII”). Dkt. 1. On June 6, 2022, McDonough moved to dismiss the Complaint. Dkt. 33. Plaintiff opposed the motion, Dkt. 41, and McDonough replied. Dkt. 48. This Court referred the case to United States Magistrate Judge Jeremiah J. McCarthy for all proceedings under 28 U.S.C. §§ 636(b)(1)(A), (B), and (C). Dkt. 17. On December 21, 2022, Judge McCarthy issued a Report and Recommendation (“R&R”) recommending that this Court deny McDonough’s motion to dismiss. Dkt. 49. On January 4, 2023, McDonough objected to the R&R. Dkt. 50. Plaintiff did not respond to the objections, and the time to do so has expired. A district court may accept, reject, or modify the findings or recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A district

court must conduct a de novo review of those portions of a magistrate judge’s recommendation to which a party objects. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72 requires a district court to review the recommendation of a magistrate Judge to which no objections are raised. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). This Court carefully reviewed the R&R, the objections briefing, and the relevant record. Based on its de novo review, this Court accepts and adopts Judge McCarthy's recommendation. For the reasons stated above and in the R&R, the Court DENIES McDonough’s [83] motion to dismiss. The case is referred back to Judge McCarthy for further proceedings consistent with the December 22, 2021 referral order (Dkt. 17).

SO ORDERED.

Dated: January 31, 2023 Buffalo, New York MO J, L. SINATRA, J&. ITED STATES DI JUDGE

McDowell v. McDonough, (W.D.N.Y. 2023).

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