THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge William T. Prince (Doc. 33), filed on June 16, 2010, which recommends that we grant the Defendants' motion to dismiss the Plaintiffs' second amended complaint. (Doc. 24). Plaintiffs Clint Smith ("Smith") and Wendy King ("King") filed objections to the R&R on July 6, 2010. (Doc. 34). Accordingly, this matter is ripe for disposition. For the reasons set forth below, the Court will adopt the Magistrate Judge's R&R, grant the Defendants' motion to dismiss and close this case.
I. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffs instituted this action on February 24, 2009 by filing a complaint in the United States District Court for the Eastern District of Pennsylvania, alleging employment discrimination and retaliation. On May 14, 2009, Plaintiffs filed an amended complaint. On August 7, 2009, this case was transferred to the Middle District of Pennsylvania and was assigned to our former colleague the Honorable Thomas I. Vanaskie on September 9, 2009.
Without seeking leave of court or of the Defendants, Plaintiffs filed a second amended complaint on December 17, 2009. (Doc. 19). The second amended complaint names as Defendants Richard Pallman "in his Individual Capacity, Executive Director, United States Department of Agriculture, Farm Services Agency," and Thomas Vilsack, in his "Official Capacity as Secretary, United States Department of Agriculture."*fn1
Plaintiff Smith brings a Bivens*fn2 claim against both Defendants, alleging that they constructively terminated him from his employment him in retaliation for engaging in protected activity in violation of the First, Fifth and Fourteenth Amendments. Plaintiff King brings claims under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act, alleging that the Defendants terminated her in retaliation for engaging in protected activity, namely seeking a reasonable accommodation for her disability and "protesting the defendants' bias[ed] employment practices."
On January 29, 2010, Defendants filed a motion to dismiss or alternatively for summary judgment, indicating, in the supporting brief, their acquiescence to the filing of Plaintiffs' second amended complaint. On May 18, 2010, Judge Vanaskie referred the pending motion to dismiss to Magistrate Judge Prince for the preparation of an R&R. (Doc. 32). Thereafter on June 10, 2010, this matter was reassigned to the undersigned as a result of Judge Vanaskie's elevation to the United States Court of Appeals for the Third Circuit.
As noted, Magistrate Judge Prince issued an R&R on June 16, 2010, to which the Plaintiffs have lodged objections.
A. Review of Magistrate Judge's R&R
When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's ...