Opinion
Civil Action 4:22-cv-03131
05-31-2023
JUDGE CHARLES ESKRIDGE EDWINA HILL, Plaintiff, v. DENIS R. MCDONOUGH, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, Defendant.
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
HON. CHARLES ESKRIDGE UNITED STATES DISTRICT JUDGE
Plaintiff Edwina Hill, an employee of the VA Medical Center in Houston, brought this action pro se alleging that she was subjected to discrimination in violation of Title VII. Dkt 1 at 1-2. Defendant Secretary Denis R. McDonough filed a partial motion to dismiss under Rules 12(b)(1) and 12(b)(6), arguing that Hill hasn't exhausted administrative remedies as to certain claims. Dkt 18.
Pending is a Memorandum and Recommendation by Magistrate Judge Christina A. Bryan dated April 30, 2023. Dkt 30. She recommends that the motion to dismiss be denied because (i) the exhaustion requirement for Title VII claims isn't jurisdictional, and (ii) it can't be concluded, based on the limited record at the motion to dismiss stage, that Hill had failed to exhaust administrative remedies. Id. at 5-7.
The district court reviews de novo those conclusions of a magistrate judge to which a party has specifically objected. See FRCP 72(b)(3) & 28 USC § 636(b)(1)(C); see also United States v Wilson, 864 F.2d 1219, 1221 (5th Cir 1989, per curiam). The district court may accept any other portions to which there's no objection if satisfied that no clear error appears on the face of the record. See Guillory v PPG Industries Inc, 434 F.3d 303, 308 (5th Cir 2005), citing Douglass v United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir 1996, en banc); see also FRCP 72(b) advisory committee note (1983).
None of the parties filed objections. No clear error appears upon review and consideration of the Memorandum and Recommendation, the record, and the applicable law.
The Memorandum and Recommendation of the Magistrate Judge is ADOPTED as the Memorandum and Order of this Court. Dkt 28.
The motion by Defendant Secretary Denis R. McDonough to partially dismiss this action is DENIED. Dkt 18.
The pending motion by Plaintiff Edwina Hill for extension of time to respond to the motion to dismiss is DENIED AS MOOT, as is the motion by Defendant to strike untimely responses. Dkts 27 & 29.
SO ORDERED.