United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
CHRISTOPHER A. BOYKO JUDGE
matter comes before the Court upon Defendants' Partial
Motion (ECF DKT #16) to Dismiss Plaintiff's Amended
Complaint for lack of subject matter jurisdiction
(Fed.R.Civ.P. 12(b)(1)) and for failure to state a claim
(Fed.R.Civ.P. 12(b)(6)). On June 10, 2019, the Magistrate
Judge issued his Report and Recommendation (ECF DKT #23)
recommending that Defendants' Partial Motion to Dismiss
be granted. On June 24, 2019, Plaintiff filed his Objections
(ECF DKT #25). Having reviewed the underlying Motion and
briefing, the Report and Recommendation and the Objections,
the Court accepts and adopts in part the Recommendation and
grants partial dismissal of the Amended Complaint as follows.
Leroy Thompson initiated this action pro se against the
Secretary of the United States Department of Veterans Affairs
(VA); Steven Gaj, Chief Information Officer at the Louis
Stokes VA Medical Center; and David Speronoga, Supervisor at
the Louis Stokes VA Medical Center. Defendants Gaj and
Speronoga are sued in their official capacity.
Plaintiff's Amended Complaint was filed through counsel.
is an African-American male over the age of forty who has
worked for the Department of Veterans Affairs in Cleveland as
an Information Technology Specialist since 2004. Since 2014,
Plaintiff alleges that he has been subjected to retaliation,
harassment, disparate treatment and adverse employment
actions because he engaged in EEOC protected activities. He
alleges that he has filed four EEOC complaints and that he
received a notice of right to sue on May 3, 2018.
seek dismissal of a portion of Claims One and Two under Title
VII of the Civil Rights Act, 42 U.S.C. §2000e-3(a), as
well as Claims Three and Four alleging claims under the
Fourteenth Amendment, 42 U.S.C. §§ 1981 and 1983,
Claim Five alleging claims under the American with
Disabilities Act (ADA), 42 U.S.C. § 12101, et
seq. and Family and Medical Leave Act (FMLA), 29 U.S.C.
§ 2601, et seq. and Claim Six alleging claims
under Ohio Rev. Code § 4112.02(I).
Report and Recommendation (ECF DKT #23), the Magistrate Judge
found that the Court lacks subject matter jurisdiction over
Plaintiff's claims as alleged under the Fourteenth
Amendment, §1981 and §1983, ADA, FMLA and Ohio Rev.
Code § 4112.02(I); and that Plaintiff has failed to
state a cause of action for claims under Title VII that have
not been exhausted.
objects to the Magistrate Judge's conclusion that he
failed to exhaust his administrative remedies regarding his
Retaliation claim. Plaintiff also objects to the finding that
he does not have an Age Discrimination claim. Lastly,
Plaintiff disagrees that the Court lacks subject matter
jurisdiction over his ADA and FMLA claims and his cause of
action for violation of the Fourteenth Amendment.
LAW AND ANALYSIS
to Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1)(c), the
District Court shall review de novo any finding or
recommendation of the Magistrate's Report and
Recommendation to which specific objection is made. A party
who fails to file an objection waives the right to appeal.
U.S. v. Walters, 638 F.2d 947, 950 (6th Cir. 1981).
In Thomas v. Arn, 474 U.S. 140, 150 (1985), the
Supreme Court held: “It does not appear that Congress
intended to require district court review of a magistrate
judge's factual or legal conclusions, under a de
novo or any other standard, when neither party objects
to those findings.”
Rule 72.3(b) recites in pertinent part:
The District Judge to whom the case was assigned shall make a
de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made and may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
another way, 28 U.S.C. § 636(b) and Local Rule 72.3
authorize the district court judge to address objections by
conducting a de novo review of relevant evidence in
the record before the magistrate judge. Parties are not
permitted at the district court stage to raise new arguments
or issues that were not presented to the magistrate. Murr
v. United States, 2 ...