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Thompson v. Secretary of U.S. Dept. of Veterans Affairs

United States District Court, N.D. Ohio, Eastern Division

December 4, 2019

LEROY THOMPSON, Plaintiff,
v.
SECRETARY OF THE U.S. DEPT. OF VETERANS AFFAIRS, et al., Defendants.

          OPINION AND ORDER

          CHRISTOPHER A. BOYKO JUDGE

         This 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.

         I. BACKGROUND

         Plaintiff 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.

         Plaintiff 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.

         Defendants 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).

         In the 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.

         Plaintiff 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.

         II. LAW AND ANALYSIS

         Standard of Review

         Pursuant 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.”

         Local 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 Magistrate Judge.

         Put 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 ...


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