Hernandez v. City of N.Y.

• Decision Date: 23 January 2015
• Docket Number: 11 Civ. 6644 (KPF) (DF)
• Parties: LIZA HERNANDEZ, Plaintiff, v. CITY OF NEW YORK, Defendant.
• Court: U.S. District Court — Southern District of New York

LIZA HERNANDEZ, Plaintiff, v. CITY OF NEW YORK, Defendant.

11 Civ. 6644 (KPF) (DF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

January 23, 2015

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

KATHERINE POLK FAILLA, District Judge:

On November 25, 2014, United States Magistrate Judge Debra Freeman issued a Report and Recommendation (the "Report") recommending that this Court grant Defendant City of New York's ("Defendant" or the "City") motion for summary judgment with respect to all of Plaintiff Liza Hernandez's federal claims, and decline to exercise supplemental jurisdiction over Plaintiff's pendent state and city law claims. (Dkt. #94). Plaintiff has filed objections to the Report. (Dkt. #99). For the reasons set forth below, the Court finds no error in the Report and adopts the Report in its entirety.

BACKGROUND

The Court presumes the parties' familiarity with the factual allegations of this action, as well as its extensive procedural history, both of which are thoroughly set forth in the Report. (See Report 2-8 (factual background), 8-14(procedural history)).¹ In broad summary, Plaintiff claims that (i) she was subjected to discrimination (both disparate treatment and a hostile work environment) by her employer, the City's Office of Chief Medical Examiner ("OCME"), on the basis of her medical conditions; (ii) OCME discriminated against her, and subjected her to improper retaliation, by failing to make reasonable accommodations, and by revoking previously-made reasonable accommodations, that would allow Plaintiff to perform the duties of her position at OCME; and (iii) she ultimately lost her job at OCME because of discrimination against her based on her medical conditions and in retaliation for her complaints about previous discriminatory treatment. (See Dkt. #33 at ¶¶ 23-85).

On September 16, 2011, Plaintiff filed a complaint against the City of New York and her former supervisor (Dkt. #2); the Second Amended Complaint, the operative complaint in this case, was filed on July 13, 2012 (Dkt. #33). Plaintiff asserted claims under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (the "ADA"); the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297 (the "NYSHRL"); and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 8-131 (the "NYCHRL"); she also included a claim for intentional infliction of emotional distress under New York State law. (Id. at ¶¶ 86-100).²

On March 24, 2014, the City moved for summary judgment with respect to all of Plaintiff's claims. (Dkt. #78-83). Plaintiff filed an affirmation in opposition on July 1, 2014 (Dkt. #89), and the City filed its reply brief on July 25, 2014 (Dkt. #92).

Judge Freeman issued her Report on November 25, 2014. In the course of 42 pages, Judge Freeman recommended that the Court find that: (i) Plaintiff's claim that Defendant had improperly revoked a previous reasonable accommodation for her positional vertigo was time-barred (Report 25-27); (ii) her claim that Defendant had failed to provide a reasonable accommodation in the form of extending her medical leave failed because Plaintiff presented no evidence that a requested, finite leave of absence would have enabled her to return to work (id. at 27-30); (iii) Plaintiff's claim of discriminatory termination of employment failed for similar reasons (id. at 33); (iv) her claim of a hostile work environment was time-barred (id. at 30-33); and (v) Plaintiff's claim of retaliatory discharge failed because of the absence of evidence of a causal connection between her complaints and her termination (id. at 34-38). Judge Freeman further recommended that the Court decline to exercise supplemental jurisdiction over pendent state and city law claims, noting that the traditional factors of judicial economy, convenience, fairness, and comity pointed toward declination, particularly given the differing legal frameworks involved. (id. at 38-40).

Citing 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), Judge Freeman advised the parties that they had 14 days from the issuance of the Report to file written objections. (Report 41). Defendant filed no objections. By letter dated December 12, 2014, Plaintiff sought a six-month extension of the time to file objections (Dkt. #95); the Court granted that request in part, allowing a 30-day extension, nunc pro tunc, until January 9, 2015, to file objections (Dkt. #96). Plaintiff filed her objections on January 9, 2015. (Dkt. #99 ("Objections")).

THE STANDARD OF REVIEW

When a district court assesses the report and recommendation of a magistrate judge, the court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). If a party properly objects to a finding in the Report, the Court reviews the finding de novo. 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.").³

Properly raised objections must be "'clearly aimed at particular findings'" in the Report. Vlad-Berindan v. MTA N.Y.C. Transit, No. 14 Civ. 675 (RJS), 2014 WL 6982929, at *1 (S.D.N.Y. Dec. 10, 2014) (quoting Harden v. LaClaire,No. 07 Civ. 4592 (LTS), 2008 WL 4735231, at *1 (S.D.N.Y. Oct. 27, 2008)). In consequence, objections may not be "conclusory or general," and parties may not simply regurgitate the original briefs to the magistrate judge. Thomas v. Astrue, 674 F. Supp. 2d 507, 511 (S.D.N.Y. 2009) (internal quotation marks and citation omitted); see generally Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding party who filed cursory objections to magistrate judge's report and recommendation failed adequately to object under Fed. R. Civ. P. 72(b)). Conversely, objections generally may not include new arguments "that were not raised, and thus were not considered, by the magistrate judge." Jackson v. Brandt, No. 10 Civ. 5858 (PAC), 2012 WL 2512015, at *6 (S.D.N.Y. June 29, 2012) (order adopting report and recommendation); see also Berbick v. Precinct 42, 977 F. Supp. 2d 268, 273 (S.D.N.Y. 2013) ("A motion referred to a magistrate judge is not a trial run." (alterations and internal quotation marks omitted)).

Absent proper objections, a district court should accept all parts of a report and recommendation that are not clearly erroneous. See Berbick, 977 F. Supp. 2d at 273; see also King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009) ("To accept those portions of the report to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." (internal quotation marks and citation omitted)), aff'd, 453 F. App'x 88 (2d Cir. 2011) (summary order). In this regard, "the Court reviews a party's improper objections, including those that seek a 'second bite at the apple' by 'attempt[ing] torelitigate the entire content' of the arguments made before the magistrate judge, only for clear error." Vlad-Berindan, 2014 WL 6982929, at *2 (quoting Thomas, 674 F. Supp. 2d at 511) (emphasis in Vlad-Berindan). In clear error review, a court should reverse a finding only if it is "left with the definite and firm conviction that a mistake has been committed," and not merely if it "would have decided the case differently." Easley v. Cromartie, 532 U.S. 234, 242 (2001) (internal quotation marks omitted).

"Objections of pro se litigants are generally accorded leniency and construed to raise the strongest arguments that they suggest." Quinn v. Stewart, No. 10 Civ. 8692 (PAE)(JCF), 2012 WL 1080145, at *4 (S.D.N.Y. Apr. 2, 2012) (internal quotation marks omitted). "Nonetheless, even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a 'second bite at the apple' by simply relitigating a prior argument." Pinkney v. Progressive Home Health Servs., No. 06 Civ. 5023 (LTS), 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008).

DISCUSSION⁴

Plaintiff first objects to a number of Judge Freeman's factual findings. As to these objections, the Court makes the following preliminary comments: First, certain of the facts to which Plaintiff now objects were accepted by Judge Freeman precisely because Plaintiff neither contested a statement listed inDefendant's Statement of Undisputed Facts Pursuant to Local Rule 56.1, nor offered a contradictory factual assertion in her opposition papers or in her deposition testimony. (See Report 2 n.1 (noting that because of Plaintiff's failure to comply with Local Rule 56.1, "the facts summarized in this section are taken from Defendant's Rule 56.1 statement, Plaintiff's opposition affirmation (which was declared to be made under penalty of perjury), and certain evidence in the record, including Plaintiff's deposition testimony")). Second, and perhaps more importantly, Plaintiff misperceives the significance of many of the findings to which she now objects. In particular, Plaintiff overlooks both the solicitude with which Judge Freeman viewed the record⁵and the fact that many of her claims were resolved on procedural bases that existed independently of the facts Plaintiff now challenges.

Addressing Plaintiff's factual objections in turn, the Court notes as follows:

¦ Plaintiff begins by challenging Judge Freeman's statement in the first paragraph of the Report that "Plaintiff's claim[s] largely arise from the termination of her employment, which occurred after she requested an extension of an approved medical leave." (Objections 1 (citing Report 1)). Put simply, Judge Freeman's focus in this sentence was self-evidently temporal, and not causal, and this statement is an accurate representation of the sequence of events. With particular respect to Plaintiff's challenges that the statement (i) fails to discern

...