Filed: Dec. 23, 2016
Latest Update: Dec. 23, 2016
Summary: ORDER OVERRULING OBJECTION TO AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ROBERT E. BLACKBURN , District Judge . The matters before me are (1) the Recommendation of United States Magistrate Judge [#38], 1 filed December 8, 2016; and (2) plaintiff's Objection thereto [#39], filed December 12, 2016. I overrule plaintiff's objection, adopt the recommendation, grant defendant's motion to for summary judgment, and dismiss this case. As required by 28 U.S.C. 636(b), I ha
Summary: ORDER OVERRULING OBJECTION TO AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ROBERT E. BLACKBURN , District Judge . The matters before me are (1) the Recommendation of United States Magistrate Judge [#38], 1 filed December 8, 2016; and (2) plaintiff's Objection thereto [#39], filed December 12, 2016. I overrule plaintiff's objection, adopt the recommendation, grant defendant's motion to for summary judgment, and dismiss this case. As required by 28 U.S.C. 636(b), I hav..
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ORDER OVERRULING OBJECTION TO AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ROBERT E. BLACKBURN, District Judge.
The matters before me are (1) the Recommendation of United States Magistrate Judge [#38],1 filed December 8, 2016; and (2) plaintiff's Objection thereto [#39], filed December 12, 2016. I overrule plaintiff's objection, adopt the recommendation, grant defendant's motion to for summary judgment, and dismiss this case.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which cognizable objections have been filed. I have considered carefully the recommendation, objection, and applicable caselaw. The recommendation is thorough and well-reasoned. The magistrate judge's excellent discussion and analysis require no festooned reiteration from this court. Suffice to say, I concur fully with the magistrate judge's well-substantiated determination that plaintiff has failed to present any evidence sufficient to create a genuine dispute for trial on her putative Title VII claims. I thus approve and adopt the recommendation in full.
By her objection, plaintiff suggests she possesses documents to prove she notified a manager, Shane Thompson, of a prior criminal conviction,2 and Mr. Thompson allegedly approved her work release. However, the time to present that argument (and any supporting documents) was in response to the summary judgment motion itself. By failing to file any response to the motion, despite a sizeable extension of the deadline for submission and a direct order from the court to do so, plaintiff has waived this objection. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); Mariani v. Stommel, 2006 WL 2598010 at *2 (D. Colo. Sept. 11, 2006).
Yet even were the court required or inclined to consider the objection substantively, it is without merit. For even if Mr. Thompson knew of plaintiff's prior arrest and conviction history, there is neither argument nor evidence to suggest that the manager who actually made the decision, Brett Newberg, had any such knowledge.3 Instead, the evidence of record fully supports the magistrate judge's conclusion that Mr. Newberg terminated plaintiff with a good faith and honest belief based on facts known to him that plaintiff had violated the company's Arrest and Convictions Policy. There is simply no genuine dispute of material fact as to pretext to warrant submission of these claims to a jury. Stover v. Martinez, 382 F.3d 1064, 1076 (10th Cir. 2004).
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#38], filed December 8, 2016, is approved and adopted as an order of this court;
2. That the objections stated in plaintiff's Objection [#39], filed December 12, 2016, are overruled;
3. That Defendant Wal-Mart Stores, Inc.'s Motion for Summary Judgment [#31], filed August 29, 2016, is granted;
4. That plaintiff's claims against defendant are dismissed with prejudice;
5. That judgment with prejudice shall enter on behalf of defendant, Wal-Mart Stores, Inc., and against plaintiff, Nadine Espinoza-Horiuchi, on all claims for relief and causes of action asserted in this action; and
6. That defendant is awarded its costs, to be taxed by the clerk of the court pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.