Opinion
Civil Action No. 11-cv-01018-WYD-CBS
12-12-2011
ERIC BANKSTON, Plaintiff, v. ANTLERS HILTON HOTEL, Defendant.
Chief Judge Wiley Y. Daniel
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court on Defendant Antlers Hilton Hotel's Motion for Partial Dismissal of the Complaint (ECF No. 17), filed July 1, 2011. The motion was referred to Magistrate Judge Craig B. Shaffer for a Recommendation by Order of Reference dated April 28, 2011. Magistrate Judge Shaffer issued a Recommendation on November 3, 2011. Specifically, Magistrate Judge Shaffer recommends that the pending motion be granted and that Plaintiff's Title VII termination claim and his state law claim for violation of the Colorado Anti-Discrimination Act be dismissed. (ECF No. 26, Recommendation at 8-9.) The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b).
Magistrate Judge Shaffer advised the parties that written objections were due within fourteen (14) days after service of a copy of the Recommendation. (Recommendation at 9-10.) Despite this advisement, no objections were filed to the Recommendation. No objections having been filed, I am vested with discretion to review the Recommendation "under any standard [I] deem[] appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings"). Nonetheless, though not required to do so, I review the Recommendation to "satisfy [my]self that there is no clear error on the face of the record." See Fed. R. Civ. P. 72(b) Advisory Committee Notes.
Note, this standard of review is something less than a "clearly erroneous or contrary to law" standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R. Civ. P. 72(b).
Having reviewed the Recommendation, I am satisfied that there is no clear error on the face of the record. I find that Magistrate Judge Shaffer's Recommendation is thorough, well reasoned and sound. I agree with Magistrate Judge Shaffer that the pending motion should be granted for the reasons stated in both the Recommendation and this Order.
Based on the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge Shaffer (ECF No. 26) is AFFIRMED and ADOPTED. In accordance therewith, it is
FURTHER ORDERED that Defendant Antlers Hilton Hotel's Motion for Partial Dismissal of the Complaint (ECF No. 17) is GRANTED. Plaintiff's Title VII claim that the Hotel discriminated against him by discharging him from employment on August 28, 2009 is DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. Plaintiff's state law claim for violation of the Colorado Anti-Discrimination Act is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted, as it cannot be amended to state a claim. However, this case will proceed on Plaintiff's claim that on or about May 27, 2008, the Hotel discriminated against him by denying him reasonable accommodation for his disability in violation of the Americans with Disabilities Act and retaliating against him for engaging in protected activity in violation of Title VII.
BY THE COURT:
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Wiley Y. Daniel
Chief United States District Judge