United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on the Defendant’s
Motion to Dismiss [Doc. 7]; the Magistrate Judge’s
Memorandum and Recommendation [Doc. 18] regarding the
disposition of that motion; and the pro se
Plaintiff’s Objection to the Memorandum and
Recommendation [Doc. 19].
to 28 U.S.C. § 636(b) and the Standing Orders of
Designation of this Court, the Honorable Dennis L. Howell,
United States Magistrate Judge, was designated to consider
the Defendant’s Motion to Dismiss and to submit a
recommendation for its disposition.
April 2, 2018, the Magistrate Judge issued a Memorandum and
Recommendation, recommending that the Defendant’s
Motion to Dismiss be granted. [Doc. 18]. The parties were
advised that any objections to the Magistrate Judge’s
Memorandum and Recommendation were to be filed in writing
within fourteen (14) days of service. On April 16, 2018, the
Plaintiff filed her Objection to the Memorandum and
Recommendation. [Doc. 19].
Federal Magistrate Act requires a district court to
“make a de novo determination of those
portions of the report or specific proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). In order “to preserve for appeal an
issue in a magistrate judge’s report, a party must
object to the finding or recommendation on that issue with
sufficient specificity so as reasonably to alert the district
court of the true ground for the objection.” United
States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007).
The Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of
the magistrate judge to which no objections have been raised.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
Additionally, the Court need not conduct a de novo
review where a party makes only “general and conclusory
objections that do not direct the court to a specific error
in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982).
the Plaintiff does not make any specific objection to the
Magistrate Judge’s Memorandum and Recommendation.
Instead, she generally objects to the dismissal of her
Complaint. This kind of objection does not warrant a de
novo review of the Magistrate Judge’s reasoning.
Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich.
2004) (“A general objection, or one that merely
restates the arguments previously presented is not sufficient
to alert the court to alleged errors on the part of the
magistrate judge. An ‘objection’ that does
nothing more than state a disagreement with a
magistrate’s suggested resolution, or simply summarizes
what has been presented before, is not an
‘objection’ as that term is used in this
Objection, the Plaintiff also attempts to assert additional
factual allegations in support of her claims. “When
matters outside the pleadings are presented in a response to
a 12(b)(6) motion, a district court has discretion to exclude
the additional material.” Lawson v. Miles, No.
1:11CV949 AJT/IDD, 2012 WL 3242349, at *4 (E.D. Va. Aug. 6,
2012) (citing Fonte v. Bd. Managers of Cont'l Towers
Condo., 848 F.3d 24, 25 (2d Cir. 1988) (“Factual
allegations contained in legal briefs or memoranda are ...
treated as matters outside the pleadings for purposes of
12(b)(6).”). The Court will exercise such discretion
here and exclude the new factual allegations made in the
Plaintiff’s Objection. Even if the Court were to
consider such new allegations, however, the Plaintiff’s
claims would still fail.
respect to her sex discrimination claim, the Plaintiff
asserts that a male scrub tech was hired shortly after her
termination and that this person “was one of the people
that [Plaintiff’s supervisor] replaced
[Plaintiff’s] position with.” [Doc. 19 at 1].
Even assuming that this allegation were true and had been
properly pled, the Plaintiff still has failed to allege
another essential element of her sex discrimination claim,
namely, that her job performance was satisfactory.
[See Doc. 18 at 6]. Thus, the Plaintiff’s sex
discrimination claim must be dismissed.
the Plaintiff’s sexual harassment claim, the Court
notes that the factual allegations of the Plaintiff’s
Amended Complaint do not relate to any claim of sexual
harassment, and the Plaintiff does not attempt to assert any
additional allegations in her Objection with respect to this
claim. The only mention of any sexual harassment in the
Plaintiff’s pleadings (aside from a checked box next to
“sexual harassment” on the form complaint) is
found in her EEOC Charge, wherein she alleges that an
unidentified nurse sexually harassed her for a 13-week time
frame in “early 2015.” [Doc. 1 at 7]. Assuming
these facts to be true, it is evident on the face of her EEOC
Charge -- which was not filed until September 2016 -- that
the Plaintiff does not claim to have been subjected to any
sexual harassment within the 180 days prior to the filing of
her EEOC Charge. As such, any claims of sexual harassment
were time barred. See 42 U.S.C. § 2000e-5(e)(1)
(requiring Charge of Discrimination to be filed within 180
days “after the alleged unlawful employment practice
occurred”). Accordingly, the Court concludes that the
Plaintiff’s claim for sexual harassment must fail.
her religious discrimination claim, the Plaintiff contends in
her Objection that she “never felt comfortable stating
that [she] was a Christian in Mission Hospital out in the
open,” and she offers new factual allegations in
support of this contention. [Doc. 19 at 1]. Even assuming the
truth of such allegations and assuming that such allegations
had been properly pled, the Plaintiff has still failed to
allege a claim for religious discrimination. She has not
alleged that she was engaged in any religious practice which
the Defendant failed to accommodate. Alternatively, she has
failed to allege that she was discriminated against with
respect to her “compensation, terms, conditions, or
privileges or employment” because of her religion.
See 42 U.S.C. § 2000e-2(a). The
Plaintiff’s alleged discomfort in expressing her
religious beliefs is simply insufficient to state a claim for
religious discrimination. Accordingly, this claim also must
careful review of the Memorandum and Recommendation, the
Court concludes that the Magistrate Judge’s proposed
conclusions of law are correct and are consistent with
current case law. Accordingly, the Court hereby accepts the
Magistrate Judge’s recommendation that the
Defendant’s Motion to Dismiss should be granted, and
that this action should be dismissed.
IT IS, THEREFORE, ORDERED that the
Plaintiff’s Objection to the Memorandum and
Recommendation [Doc. 19] is OVERRULED, and
the recommendation of the Magistrate Judge [Doc. 18] is
IS FURTHER ORDERED that the Defendant’s Motion
to Dismiss [Doc. 7] is GRANTED, and this
action is hereby DISMISSED WITH PREJUDICE.