Summary
finding that the plaintiff's testimony that he was "referred to . . . as 'Brazilian b*stard' 'several times,' . . . failed to point to evidence that show[ed] the frequency of the allegedly harassing conduct"
Summary of this case from Smith v. Outdoor Network Distribution LLCOpinion
Civil Action No. 2:04-CV-0211-RWS.
March 21, 2006
ORDER
This case is before the Court for consideration of the Final Report and Recommendation [54] of Magistrate Judge Susan S. Cole. Plaintiff has filed an Objection [55] to the Report and Recommendation. After reviewing the Report and Recommendation and the Objection filed thereto, the Court enters the following Order.
In his Objection, Plaintiff asserts for the first time that he lost three (3) days of pay because of the delay in his hiring. The record does not support this assertion. In his deposition, Plaintiff testified that he began rookie training on April 26 and that he assumed this was the same day the other new hires began. Pl's Dep. at 46. Also, Plaintiff admitted paragraph 9 of Defendants' Statement of Material Facts Upon Which There Exists No Genuine Issue to be Tried which stated: "Plaintiff and the other successful candidates, with the exception of a high school senior who was completing his studies, began rookie training on April 26, 2004." A training roster submitted by Plaintiff as an exhibit in support of his Motion for Summary Judgment shows his participation in two training programs on April 27. Pl.'s Mot. for Summ. J., Ex. 23. Plaintiff also admitted that he was offered the position on April 23 and accepted the position the next day. Def.'s Statement of Material Facts at ¶¶ 7 8.
In support of his argument that he did not begin receiving payment until April 29, Plaintiff cites his Separation Notice reflecting that his employment began April 29, 2004. Pl.'s Reply Br. in Supp. of His Mot. Summ. J., Ex. 6. He also attached to his Objection a pay-period roster showing that he did not begin being paid until April 29. The Court acknowledges that the dates on these documents are difficult to reconcile. However, Plaintiff has failed to point to evidence in the record showing that the actually suffered any loss. Most indications in the record suggest all of the rookies, except the high school student, started the same day. Perhaps the start day was April 27 or April 29. In any event, Plaintiff offers no evidence that other rookies were paid before he was or that he was delayed in starting with the other rookies because of the delay in the decision to hire him. Aside from the fact that Plaintiff's assertion of this new claim is untimely, the Court concludes that his contentions are not supported by the record. The Court finds that, based upon the record, Judge Cole correctly decided all issues.
Therefore, the Court receives the Report and Recommendation with approval and adopts the findings and conclusions contained therein as the Order of this Court. Accordingly, Plaintiff's Motion for Summary Judgment [35] is hereby DENIED. Defendant's Motion for Summary Judgment [26] is hereby GRANTED, and the Clerk is DIRECTED to DISMISS this action.
SO ORDERED.