McDowell v. McDonough et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TYRONE MCDOWELL,
Plaintiff,
v.
DENIS MCDONOUGH, Secretary,
Department of Veterans Affairs,
Defendant.
REPORT AND
RECOMMENDATION
Case No. 1-22-cv-00843-JLS-JJM
Pro se plaintiff Tyrone McDowell seeks recovery for alleged harassment and
retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e, et seq., in
the course of his employment by the Department of Veterans Affairs (“VA”). Complaint [1].1
Before the court is VA Secretary Denis McDonough’s motion seeking dismissal of the
Complaint pursuant to Fed. R. Civ. P. (“Rules”) 12(b)(1) for lack of subject matter jurisdiction
and 12(b)(6) for failure to state a claim upon which relief can be granted [18]. The motion has
been referred to me by District Judge John L. Sinatra, Jr. for initial consideration [19, 28].
Having reviewed the parties’ submissions [18, 31, 322 ], for the following reasons
I recommend that the motion be granted.
BACKGROUND
On November 4, 2022, McDowell, proceeding pro se, commenced this action
against his employer, the Department of Veterans Affairs, and others, alleging discrimination
1 	Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF
pagination.
2 	Plaintiff also filed a sur-reply. [34] However, he did not request permission to file a sur-reply
pursuant to Local Rules of Civil Procedure Rule 7(2)(a)(6): “[a]bsent permission of the Judge hearing the
motion, sur-reply papers are not permitted”. Therefore, I did not consider the sur-reply.
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due to his race or color in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).
Complaint [1]. McDowell alleged that based on his race, color, and disability, defendant
McDonough, as Secretary of the Department of Veteran Affairs (the “VA”) and his employer the
VA Western New York Healthcare System (the “Buffalo VA”) subjected him to “harassment on
the basis of unequal terms and conditions of my employment”, “retaliation because I complained
about discrimination or harassment”, and “reprisal due to previous EEO activity” in the course of
his employment. This claim is related to two others that McDowell filed concerning inter-related
claims of discrimination and retaliation under Title VII. See McDowell v. McDonough, 21-cv-
338 (“Action #1”) and McDowell v. McDonough, 22-cv-873 (“Action #3”). There are motions
for summary judgment pending in Action #1 and a motion to dismiss pending in Action #3.
Accordingly, only issues raised by McDowell in his complaint in this case will be considered.
The claims raised in his other cases will be considered separately.
McDowell was a Health Systems Specialist at the Buffalo VA. [1] at 14. After a
series of events that are at the core of Action #1, he took sick leave beginning January 27, 2017.
See Id. (“[y]ou have been absent from work since January 27, 2017”). Plaintiff first filed charges
with the EEOC for the events alleged in this Complaint on January 15, 2020, but he states in his
Complaint that his “first EEOC claim was filed December 20, 2016”. [1] at 4.
The claims in this action, as stated by the Equal Employment Opportunity
Commission in his administrative claim3 , allege a hostile work environment and retaliation
related to: (a) two return-to-work letters that he received from the Buffalo VA dated October 31,
2019 and November 6, 2019; and (b) defendant’s discovery in December of 2019 that a
3 	“A district court may hear only Title VII claims that are included in an EEOC charge or are based
on conduct subsequent to the EEOC charge which is “reasonably related” to those alleged in the EEOC
charge.” Cooper v Xerox Corp., 994 F .Supp. 429, 432 (W.D.N.Y. 1998).
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reprimand letter related to a July 2013 incident remained in his employee record. See [1] at 8-9,
11, 33-34; see also [18-4] at 3 (EEOC Decision & Order dated December 7, 2020)4 ; and
Plaintiff’s Opposition to Defendant’s Motion to Dismiss [31] at 1 (“[t]he present case, filed on
November 4, 2022, involves . . . Defendant’s issuance of an Order to Return-to Duty letters in
October and November 2019 and the unlawful maintenance of a 2013 reprimand letter in
Plaintiff’s employee file”), 8-9 (copy of the October 28, 2019 letter) and 11-12 (copy of the
November 6, 2019 letter) 5 .
Although the letters themselves are not attached to McDowell’s complaint, they
are central to his allegations and repeatedly referred to throughout the complaint and its
attachments. [1] at 8-10, 22, 27, 30, 33-34; see also [18-4] at 3-5, 9-10. Moreover, a pro se
plaintiff's papers in response to a defendant's motion to dismiss for failure to state a claim may be
considered as effectively amending the allegations of his complaint—to the extent those papers
are consistent with the allegations in the complaint.” Pflaum v Town of Stuyvesant, 937 F. Supp.
2d 289, 300 (N.D.N.Y. 2013. Therefore, I find that the letters are incorporated into plaintiff’s
complaint and consider them here.
The letters are, for the most part, identical. The October 28, 2019 letter contains
the subject line “Order to Return to Duty – 1 st Notice”. The letter states:
4 	McDowell attached this Decision & Order to his Complaint ([1] at 26-32), but included only the
odd pages. Defendant attached a complete copy of the Decision & Order to its motion ([18-4] at 2-15).
Because it appears that plaintiff intended for the Decision & Order to be part of his Complaint, and
because he does not object in his Opposition to Defendant’s Motion to Dismiss to defendant’s inclusion
of the Decision & Order or to defendant’s reliance on it, I will consider the entire Decision & Order to be
part of plaintiff’s Complaint. See Pflaum v Town of Stuyvesant, 937 F. Supp. 2d 289, 300 (N.D.N.Y.
2013) (“a pro se plaintiff's papers in response to a defendant's motion to dismiss for failure to state a
claim may be considered as effectively amending the allegations of his complaint—to the extent those
papers are consistent with the allegations in the complaint”).
5 	A copy of the letters is also attached to defendant’s motion papers. See [18-5] and [18-6].
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“1. You have been absent, since June 22, 2017, from your full-time
position . . . Although your absence from duty for this period may
have been for compelling reasons beyond your control . . . your
absence has been beyond a reasonable amount of time. The
records show that you have taken an excessive amount of leave
without pay. You have been absent from duty for approximately
28 months . . . Your level of absence is not acceptable and
adversely affects the service we provide to our customers.
2. Adverse action may be taken against an employee base on a
record of excessive absence when the following criteria are met:
1.) The employee was absent for compelling reasons
beyond his/her control . . . ;
2.) The absences continued beyond a reasonable amount of
time;
3.) the employee was warned that an adverse action could
be taken unless the employee became available for duty . . . ; and
4.) The position needed to be filled by an employee
available for duty on a regular, full-time or part-time basis.
You are ordered to report for duty immediately. If you do not
return to work, you may be subject to disciplinary action, including
removal from Federal Service. Please be advised that if you do not
become available for duty . . . by November 6, 2019, I will be
prepared to initiate an action to separate you from Federal Service.
Also, please note that a proposed removal from Federal Service is
specific only to your Federal employment with the Department of
Veterans Affairs and is not a part of your Workers Compensation
Claim, which is handled by the Department of Labor.
3. 	If you have a medical condition that affects your ability to
perform the essential functions of your position or to enjoy the
benefits of employment, you may request a Reasonable
Accommodation to assist you. . . .”
[18-5] at 2-3. The November 6, 2019 letter is identical except that it is labeled a “2nd Notice”
and demands that plaintiff return to work by November 12, 2019. [18-6] at 2-3.
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Plaintiff then outlines how and why, in his opinion, the Return to Duty letters
violated various VA policies, and alleges that the VA issued the letters because of findings made
in his Workers Compensation claim and were sent “to intimidate employees who are on workers
compensation into Retirement Disability”. [1] at 9-10.
In addition, plaintiff alleges that he became aware “[o]n December 3, 2019”, that
“a reprimand stemming from an incident that took place in July of 2013 was placed into [his]
employee record”. [1] at 11. Plaintiff alleges that he engaged in a grievance procedure in August
2013 concerning the reprimand and that it was “reduced to a written counseling”. Id. He alleges
that the reprimand should not have remained in his employment file for nearly seven years
pursuant to the language printed on the reprimand, and the VA’s own policies concerning
records retention. Id. at 12. Plaintiff alleges that retention of the reprimand letter in his
employment file was related to a prior Equal Employment Opportunity (“EEO”) claim that he
was pursuing. [1] at 11.
The December 7, 2020 EEOC Decision & Order provides additional context
related to this claim in the section entitled “Undisputed Material Facts”:
“11. In December 2019, Complainant was engaged in discovery
with the Agency on a prior EEO matter. Complainant’s attorney
requested “A copy of Complainant’s employment records,
including, but not limited to his Official Personnel Folder,
performance file (e.g., performance plans/standards, evaluation,
etc.) supervisory file (i.e., drop file), Human Resources file, Labor
and Employee Relations file, and training record.
12. In response, the Agency provided Complainant’s attorney with
not only his EOPF (Electronic Official Personnel File), but any
files Human Resources had with respect to the Complainant.
Human Resources was in possession of Complainant’s record
retention file which contained a July 18, 2013 Reprimand and an
August 12, 2013 Written Counseling. . . . The record retention file
is not accessible by anyone aside from HR and cannot be utilized
in any decision pertaining to any employee’s employment.
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13. The Reprimand and Written Counseling are not in
Complainant’s EOPF. The Reprimand was purged from
Complainant’s EOPF on July 18, 2013. The written counseling
was never contained in Complainant’s EOPF.”
[18-4] at 5.
In its motion to dismiss, the Secretary argues that McDowell impermissibly split
his claims; fails to plead claims for hostile environment or retaliation; and failed to allege any
connection to his race or to his prior EEO proceedings. See Defendant’s Memorandum of Law
[18-1].
DISCUSSION
A. 	Pro Se Pleading Requirements.
Courts must construe a “pro se complaint liberally to raise the strongest
arguments that it suggests. To survive dismissal, however, a complaint must plead enough facts
to state a claim to relief that is plausible on its face, and that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Costabile v. New York City Health and Hospitals Corp., 951 F.3d 77, 80-81 (2d Cir. 2020).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged . . . . The plausibility standard is not akin to a probability requirement, but it asks for
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more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
B. 	The Standard Governing a Rule 12(b)(6) Motion
Because I find that plaintiff has failed to plead a claim upon which relief can be
granted, I will address only those arguments that defendant made under Rule 12(b)(6).
To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face . . . . A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility
standard is not akin to a probability requirement, but it asks for more than a sheer possibility that
a defendant has acted unlawfully . . . . Where a complaint pleads facts that are merely consistent
with a defendant’s liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Id. (internal quotations omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. See also Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citing Iqbal, supra).
In deciding whether to dismiss a complaint under Rule 12(b)(6), this court “is
limited to the facts as asserted within the four corners of the complaint, the documents attached
to the complaint as exhibits, and any documents incorporated in the complaint by reference”.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). I must “assume that all
well-pleaded factual allegations in the complaint are true unless they are contradicted by more
specific allegations or documentary evidence.” Vengalottore v. Cornell University, 36 F.4th 87,
112 (2d Cir. 2022) (internal alterations omitted). That rule is “inapplicable to legal conclusions”.
Iqbal, 556 U.S. at 678 (2009).
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C. 	McDowell Has Not Plausibly Alleged a Hostile Work Environment
Title VII prohibits an employer from “discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin”. 42 U.S.C. §2000e-2(a)(1). Federal
employees, such as the plaintiff, receive the protections of Title VII through 42 U.S.C. §2000e-
16: “All personnel actions affecting employees . . . in executive agencies . . . shall be made free
from any discrimination based on race, color, religion, sex, or national origin”.
“To state a claim for a hostile work environment in violation of Title VII, a
plaintiff must plead facts that would tend to show that the complained of conduct: (1) is
objectively severe or pervasive – that is, creates an environment that a reasonable person would
find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as
hostile or abusive; and (3) creates such an environment because of plaintiff’s [race].” Patane v.
Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotations omitted). “This test sets a ‘high bar’
as the plaintiff must show not only that he subjectively perceived the environment to be abusive,
but also that the environment was objectively hostile and abusive.” Sealy v. State University of
New York at Stoney Brook, 834 Fed. Appx. 611, 615 (2d Cir. 2020) (Summary Order).
Here, it is undisputed that plaintiff did not experience a workplace permeated with
discrimination. The harassment he complains of – the return-to-work letters and the “continued
maintenance of a reprimand letter” - occurred while he was on leave. He therefore cannot
establish a hostile work environment claim. See Gillman v. Inner City Broadcasting Corp., 2011
WL 181732, *1 (S.D.N.Y. 2011) (since the plaintiff was on leave, “there is no dispute that the
alleged incidents did not take place in the ‘workplace,’ [the plaintiff] cannot make out a hostile
work environment case”); Krachenfels v. North Shore Long Island Jewish Health System, 2014
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WL 3867560, *10 (E.D.N.Y. 2014) (conduct that occurred while the plaintiff “was on leave, has
no bearing on plaintiff’s hostile work environment claim, which requires evidence of harassment
in the ‘workplace’”); Rubin v. Abbott Laboratories, 2015 WL 5679644, *8 (S.D.N.Y. 2015)
(dismissing a hostile work claim where the “plaintiff was on leave when [the incident] occurred;
she was not even in the workplace”).
Moreover, there is nothing about the content of the return-to-work letters that is
objectively hostile or abusive, nor does plaintiff point to any language in the letters that was
objectively hostile or abusive. While the language of the letters could be viewed as somewhat
harsh, they were not abusive or inflammatory, and did not include any disparaging language
about plaintiff’s race, color, or disability.
At most, the allegations of plaintiff’s complaint satisfy only the subjective
element of a hostile environment claim. For example, plaintiff states that he responded to the
November 6, 2019 letter by email and informed the sender “that he perceived his order to be
hostile, intimidating and bullying”. [1] at 9.
The retention of the reprimand in plaintiff’s employee file is similarly
insufficient to satisfy the pleading requirements for a hostile work environment, even when
considered in conjunction with the return-to-work letters. First, as stated in the EEOC Decision
& Order, the letter was expunged from plaintiff’s official personnel file on July 18, 2013. The
copy that was retained was in McDowell’s “record retention file” was “not accessible by anyone
aside from HR” and could not “be utilized in any decisions pertaining to an employee’s
employment”.
Plaintiff did not allege anywhere in his complaint that the reprimand was used to
make any decisions concerning his employment, that the letter was disseminated to anyone at the
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Buffalo VA, or that anyone in his workplace commented on the letter or discussed it with him
after the issue was resolved in 2013. Further, plaintiff alleged in his complaint that retention of
the reprimand letter was in violation of the Buffalo VA’s records retention policies, but did not
make any allegations in his complaint that he found the retention of the letter “hostile or
abusive”, nor did he make any allegation suggesting that a reasonable worker would find
retention of the letter “hostile or abusive”. Finally, plaintiff makes no allegation that the
retention of the reprimand was somehow related to his race, color, or to any disability.
Plaintiff has not made allegations sufficient to satisfy his obligation to plead facts
that would, if true, satisfy the elements of a Title VII hostile work environment claim.
Therefore, I recommend that plaintiff’s hostile work environment claim be dismissed.
D. 	McDowell Has Not Plausibly Alleged Retaliation
Title VII also prohibits an employer from “discriminat[ing] against any of his
employees . . . because he has opposed any practice made an unlawful employment practice by
this subchapter, or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter”. 42 U.S.C. §2000e-
3(a).
“To establish a prima facie case of retaliation, an employee must show that (1)
[he] was engaged in protected activity; (2) the employer was aware of that activity; (3) the
employee suffered a materially adverse action; and (4) there was a causal connection between the
protected activity and that adverse action.” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir.
2012). Plaintiff’s Complaint fails to allege facts that, if true, would satisfy the “materially
adverse action” and “causal connection” elements.
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1. 	Materially Adverse Action
“[I]n the context of a Title VII retaliation claim, an adverse employment action is
any action that could well dissuade a reasonable worker from making or supporting a charge of
discrimination”. Vega v. Hempstead Union Free School District, 801 F.3d 72, 90 (2d Cir. 2015);
Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006). “This
definition covers a broader range of conduct than does the adverse-action standard for claims of
discrimination under Title VII: The antiretaliation provision, unlike the substantive
discrimination provision, is not limited to discriminatory actions that affect the terms and
conditions of employment.” Vega, 801 F.3d at 90. See also Belton v. Borg & Ide Imaging, P.C.,
512 F. Supp. 3d 433, 446 (W.D.N.Y. 2021) (“‘[a]dverse employment action’ in the retaliation
context is broader than for discrimination claims”). Even so, “Title VII . . . protects individuals
not from all retaliation, but from retaliation that produces an injury or harm”. Mula v. Abbvie,
Inc., 2018 WL 501277, *5 (W.D.N.Y. 2018).
There is no dispute here that plaintiff was engaged in protected activities or that
the Buffalo VA was aware of the protected activity. He filed his first EEOC claim on December
20, 2016 ([1] at 4) and the EEOC Decision and Order references discovery that was conducted in
a prior EEOC claim ([18-4] at 5). However, despite the broader definition of adverse
employment action in the retaliation context, plaintiff has not alleged an adverse action in his
complaint because he has not identified any harm that resulted from either the return-to-work
letters or the retention of the reprimand letter.
“[T]he significance of any given act of retaliation will often depend upon the
particular circumstances. Context matters . . . . [A]n act that would be immaterial in some
situations is material in others.” Burlington Northern, 548 U.S. at 69.“[T]he standard is tied to
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the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII
complaint.” Id.
Here, however, plaintiff has not alleged that he suffered any adverse action as the
result of either the return-to-work letters or the retention of the reprimand letter, let alone a
material one. The only negative result he alleges as a result of receiving the return-to-work
letters was his own perception that the letters were “hostile, intimidating and bullying and after
reading the order it exacerbated his symptomology”. [1] at 9. Here, the context is that plaintiff
had been out of work since June 22, 2017 – over two years – at the time he received the return-
to-work letters. [18-5] at 2; [18-6] at 2. The letters themselves are not a notification of an
adverse action – they warn that an adverse action “may be taken” or that failure to return to work
“may” result in “disciplinary action, including removal from Federal Service”. McDowell does
not allege that he was disciplined or removed from Federal Service, nor that the letters affected
his workers’ compensation claim, his EEOC proceedings, or any other right or benefit.
In his Opposition to Defendant’s Motion to Dismiss, plaintiff argues that his
Complaint adequately alleges a materially adverse action:
“Defendant’s actions, including issuing Order to Return-to-Duty
letters despite Plaintiff’s protected status and refusing to provide
the relevant policies, were clearly aimed at intimidating Plaintiff
and discouraging him from continuing his EEO claims. The threat
of job loss and refusal to accommodate Plaintiff’s medical
condition would deter any reasonable employee from pursuing
EEO complaints.”
[31] at 4. But the letters offer to discuss accommodations that would enable an employee to
return to work: “[i]f you have a medical condition that affects your ability to perform the
essential functions of your position or to enjoy the benefits of employment, you may request a
Reasonable Accommodation to assist you.” [18-5, 18-6] at 3. Moreover, except for his
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conclusory statement that the letters were “clearly aimed at intimidating plaintiff and
discouraging him from continuing his EEO claims”, he makes no allegations from which I can
reasonably infer that this is true. He points to no language in the letter – or events related to the
letter – that relate in any way to his EEO claim or that could be considered “intimidating”.
Accordingly, I find that neither sending the return-to-duty letters or retaining the
reprimand letter would “dissuade a reasonable worker from making or supporting a charge of
discrimination”. Vega, 801 F.3d at 90. McDowell has not, therefore, plead sufficient facts to
satisfy the “materially adverse” element of a retaliation claim.
2. 	Causal Connection
Defendant argues that McDowell has not plead any facts to satisfy the last
element of a retaliation claim: “a causal connection between the protected activity and that
adverse action.” Lore, 670 F.3d at 157; see [18-1] at 23. I agree.
“A causal connection in retaliation claims can be shown either (1)
indirectly, by showing that the protected activity was followed
closely by discriminatory treatment, or through other
circumstantial evidence such as disparate treatment of fellow
employees who engaged in similar conduct; or (2) directly, through
evidence of retaliatory animus directed against the plaintiff by the
defendant.”
Littlejohn, 795 F.3d at 319 (internal quotations omitted).
McDowell has not alleged facts to support an inference of causal relationship
using either method. There is no direct evidence of retaliatory animus. The letters themselves
do not reference McDowell’s EEOC claim. See [18-5, 6]. He alleges that he contacted the
letters’ author, Mr. Swartz, the Medical Center Director, after he received the first letter. [1] at
9. However, he does not allege that Mr. Swartz said or did anything that referenced McDowell’s
EEOC claim, or otherwise implicated those proceedings, nor does he allege any such facts in his
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response to defendant’s motion. See id. Finally, neither the letters nor the statements attributed
to Mr. Swartz mention or allude to defendant’s race, color, or disability. Id.
McDowell instead relies on temporal proximity. He argues in his response to
defendant’s motion that “[t]he timing of Defendant’s actions, including the Order to Return-to-
Duty letters and the wrongful retention of the reprimand, coincides with Plaintiff’s continued
EEO activity. . . . The close proximity of these actions to Plaintiff’s engagement in protected
activity strengthens the inference of retaliatory intent”. [31] at 4. However, plaintiff’s
Complaint states that his “first EEOC claim was filed December 20, 2016”. [1] at 4. The return-
to-work letters were dated October 28, 2019 and November 6, 2019 – almost three years later.
Further, plaintiff alleges no facts that suggest defendant’s retention of the reprimand letter in
2013 - or at any time thereafter - was in any way related to his EEOC claim filed in December
2016.
To plausibly rely on temporal proximity to establish an inference of causation,
“the temporal proximity must be very close . . . Action taken . . . 20 months later suggests, by
itself, no causality at all”. Clark County School District v. Breeden, 532 U.S. 268, (2001)
(internal citations and quotations omitted). Here, three years is simply too long of a time to
suggest causality, without something more. And plaintiff has not alleged any other facts that
suggest causality. See Flanagan v. Girl Scouts of Suffolk County, 2025 WL 1501751, *6 (2d
Cir. 2025) (Summary Order) (where eleven months had passed between the protected activity
and plaintiff’s termination, “the timeline alleged by Plaintiffs, without more, cannot plausibly
support causation as a matter of law”).
McDowell’s allegations that the timing of the letters “was less than a month after
being approved for workers compensation” and that “the Agency uses Return to Duty Letters at
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their convenience . . . to intimidate employees who are on workers compensation into Retirement
Disability” are also insufficient to establish causation. [1] at 10]. Even if true, these allegations
suggest that the timing of the letters was not related to plaintiff’s pursuit of his EEOC claims, but
rather to events that occurred in his workers’ compensation claim.
Therefore, plaintiff has failed to plead any facts that plausibly suggest that
sending the return-to-work letters or retaining the reprimand letter was causally related to
plaintiff’s protected EEOC activities, or intended to retaliate against plaintiff for pursuing his
EEOC claims.
CONCLUSION
For these reasons, I recommend that the defendant’s motion to dismiss [18] be
granted. Unless otherwise ordered by Judge Sinatra, any objections to this Report and
Recommendation must be filed with the clerk of this court by October 16, 2025. Any requests for
extension of this deadline must be made to Judge Sinatra. A party who “fails to object timely . . .
waives any right to further judicial review of [this] decision”. Wesolek v. Canadair Ltd., 838 F.
2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).
Moreover, the district judge will ordinarily refuse to consider de novo arguments,
case law and/or evidentiary material which could have been, but were not, presented to the
magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal
Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) and (c) of this Court’s Local
Rules of Civil Procedure, written objections shall “specifically identify the portions of the
proposed findings and recommendations to which objection is made and the basis for each
objection . . . supported by legal authority”, and must include “a written statement either
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certifying that the objections do not raise new legal/factual arguments, or identifying the new
arguments and explaining why they were not raised to the Magistrate Judge”. Failure to comply
with these provisions may result in the district judge’s refusal to consider the objections.
Dated: September 29, 2025
___/s/ 	Jeremiah J. McCarthy________
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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