Luttaaya KABOGGOZAMUSOKE, Plaintiff-Appellant, v. RYE TOWN HILTON HOTEL, Defendant-Appellee, 370 F. App'x 246

SUMMARY ORDER Appellant Luttaaya Kaboggozamusoke appeals, pro se, from the September 29, 2008 judgment of the United States District Court for the Southern District of New York (Wood, J.), granting appellee Rye Town Hilton Hotel’s motion for

summary judgment and denying appellant’s motion to reopen discovery. In a September 26, 2008, 2008 WL 4410106, opinion and order the district court adopted the report and recommendation of the magistrate judge. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

Appellant’s complaint against his former employer, the Rye Town Hilton Hotel, raised allegations of wrongful termination and failure to promote based on his race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. Appellant also raised claims of harassment, fraud and racketeering under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq.

The magistrate’s report and recommendation explicitly states that the parties were afforded ten days to file written objections to the recommended disposition and that the failure to file timely objections would constitute a waiver, of those objections both before the district court and before this Court. See Thomas v. Am, 474 U.S. 140, 144-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989) (per curiam); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(

a) and 6(d). Thus, the magistrate judge provided the requisite “express warning” of the consequences of the failure to object to the report and recommendation. Caidor v. Onondaga County, 517 F.3d 601, 602-03 (2d Cir.2008). Although a waiver of review by this Court based on the failure to timely object to the magistrate’s report and recommendation is “nonjurisdictional” and “we may excuse the default in the interests of justice” the circumstances of this case do not convince us that an exercise of discretion in this regard is warranted. Spence v. Superintendent, Great Meadow Corr.

Facility, 219 F.3d 162, 174 (2d Cir. 2000) (internal quotation marks omitted). The defaulted arguments cannot be said to have “substantial merit” nor can we conclude that the “magistrate judge committed plain error” in granting

summary judgment to the appellee. Id. For the foregoing reasons, the appeal from the judgment of the district court is hereby DISMISSED. . In adopting the report and recommendation of the magistrate judge, the district court clarified that it is not necessary for a plaintiff to demonstrate satisfactory performance in order to make out a prima facie case of employment discrimination. ‘‘[A]ll that is required is that the plaintiff establish basic eligibility for the position at issue.” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001). Nonetheless, the report and recommendation was free of "clear error,” Fed. R.Civ.P. 72(

b) advisory committee’s note, because even assuming arguendo that appellant established a pñma facie case,

summary judgment in favor of appellee was proper. Appel-lee offered unrebutted evidence of legitimate, non-discriminatory reasons for its actions against appellant. E.g. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.2000).