McDowell v. McDonough et al

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Case 1:21-cv-00338-JLS-JJM Document53_ Filed 01/31/23 Page 1 of 2

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

TYRONE MCDOWELL,
Plaintiff,
v. 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. 43. 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, 2028, 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

AUTHENTICATED
U.S. GOVERNMENT.
INFORMATION

GPO.

Case 1:21-cv-00338-JLS-JJM Document53_ Filed 01/31/23 Page 2 of 2

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. § 6386 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 [33] 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

J L. SINATRA, as
ITED STATES DI JUDGE