Ouderkirk v. Rescue Mission Alliance of Syracuse et al, No. 3:2021cv01048 - Document 5 (N.D.N.Y 2021)

Court Description: DECISION AND ORDER: ORDERED that Magistrate Judge Lovric's # 4 Report-Recommendation is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Plaintiff's Title VII retaliation claim, Title VII gender discrimination claim an d Title VII religious-discrimination claim against Defendant Rescue Mission Alliance of Syracuse (d/b/a Thrifty Shopper) SURVIVE the Court's sua sponte review; and it is further ORDERED that Plaintiff's ADA and 42 U.S.C. § 1983 claims against all Defendants and her Title VII race discrimination claim against Defendant Rescue Mission Alliance of Syracuse(d/b/a Thrifty Shopper) are sua sponte DISMISSED without prejudice and with leave to amend within THIRTY (30) DAYS of the date of this Decision and Order; and it is further ORDERED that the Clerk of Court is directed to issue a Summons, along with a copy of the Complaint, to the U.S. Marshal for service upon Defendant Rescue Mission Alliance of Syracuse (d/b/a Thrifty Shopper), which is directed to respond in accordance with the Federal Rules of Civil Procedure. Signed by Chief Judge Glenn T. Suddaby on 12/13/2021. {Copy served upon Pro Se Plaintiff via regular mail}(pjh, )

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Ouderkirk v. Rescue Mission Alliance of Syracuse et al Doc. 5 Case 3:21-cv-01048-GTS-ML Document 5 Filed 12/13/21 Page 1 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________________ JENNIFER OUDERKIRK, Plaintiff, 3:21-CV-1048 (GTS/ML) v. RESCUE MISSION ALLIANCE OF SYRACUSE, d/b/a Thrifty Shopper; JESSICA ARNOLD, Store Manager; TRINITY MONOHAN, Assistant Store Manager; and TAMMY LARRY, Regional Manager, Defendants. ________________________________________________ APPEARANCES: JENNIFER OUDERKIRK Plaintiff, Pro Se 83 Van Kirk Road, Apt. 1 Newfield, New York 14867 GLENN T. SUDDABY, Chief United States District Judge DECISION and ORDER Currently before the Court, in this pro se civil rights action filed by Jennifer Ouderkirk (“Plaintiff”) against the Rescue Mission Alliance of Syracuse (d/b/a Thrifty Shopper) (“Rescue Mission”) and three of its employees (“Defendants”), is United States Magistrate Judge Miroslav Lovric’s Report-Recommendation recommending that Plaintiff’s Title VII claims be permitted to proceed against Defendant Rescue Mission, but that her ADA and 42 U.S.C. § 1983 claims against all Defendants be dismissed with leave to amend. (Dkt. No. 4.) Plaintiff has not filed an Objection to the Report-Recommendation, and the deadline by which to do so has expired. (See generally Docket Sheet.) After carefully reviewing the relevant Dockets.Justia.com Case 3:21-cv-01048-GTS-ML Document 5 Filed 12/13/21 Page 2 of 3 papers herein, including Magistrate Judge Lovric’s thorough Report-Recommendation, the Court can find no clear error in the Report-Recommendation.1 Magistrate Judge Lovric employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons set forth therein. To those reasons, the Court adds only the following analysis. An extra-liberal construction of the factual allegations of Plaintiff’s Complaint suggests that, in addition to attempting to assert the five claims identified on page five of the ReportRecommendation, Plaintiff is also attempting to assert the following three claims against Defendant Rescue Mission Alliance of Syracuse (d/b/a Thrifty Shopper): (1) a Title VII genderdiscrimination claim; (2) a Title VII religious-discrimination claim; and (3) a Title VII racediscrimination claim. (Compare Dkt. No. 1, at ¶¶ 6(A), 6(C), 8.3-8.5, 8.8-8.11, 8.15 [Plf.’s Compl., alleging that she was “not permitted to wear long dresses and/or skirts on Sundays in accordance with her religious beliefs”] with Dkt. No. 4, at 5 [Report-Recommendation].) However, although the Complaint alleges facts regarding alleged gender discrimination and alleged religious discrimination, it does not do so regarding alleged race discrimination. (See generally Dkt. No. 1.) As a result, the former two claims survive the Court’s sua sponte review, while the latter claim does not. 1 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to only a clear-error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a clear-error review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted). 2 Case 3:21-cv-01048-GTS-ML Document 5 Filed 12/13/21 Page 3 of 3 ACCORDINGLY, it is ORDERED that Magistrate Judge Lovric’s Report-Recommendation (Dkt. No. 4) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Plaintiff’s Title VII retaliation claim, Title VII gender-discrimination claim and Title VII religious-discrimination claim against Defendant Rescue Mission Alliance of Syracuse (d/b/a Thrifty Shopper) SURVIVE the Court’s sua sponte review; and it is further ORDERED that Plaintiff’s ADA and 42 U.S.C. § 1983 claims against all Defendants and her Title VII race-discrimination claim against Defendant Rescue Mission Alliance of Syracuse (d/b/a Thrifty Shopper) are sua sponte DISMISSED without prejudice and with leave to amend within THIRTY (30) DAYS of the date of this Decision and Order;2 and it is further ORDERED that the Clerk of Court is directed to issue a Summons, along with a copy of the Complaint, to the U.S. Marshal for service upon Defendant Rescue Mission Alliance of Syracuse (d/b/a Thrifty Shopper), which is directed to respond in accordance with the Federal Rules of Civil Procedure. Dated: December 13, 2021 Syracuse, New York ______________________________ 2 The Court notes that, after the above-referenced thirty (30) day period, Plaintiff may amend this claim only during the pendency of this action and upon meeting the requirements of Fed. R. Civ. P. 15(a)(2) and Local Rule 15.1(a). 3

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