United States District Court, N.D. Georgia, Atlanta Division
[Copyrighted Material Omitted]
For Brian Locascio, Plaintiff: Andrew Yancey Coffman, LEAD ATTORNEY, Parks Chesin & Walbert, Atlanta, GA; Allan Leroy Parks, Jr., Parks Chesin & Walbert, P.C. -Atl, Atlanta, GA.
For BBDO Atlanta, Inc., Defendant: Gary Richard Kessler, Gary R. Kessler, P.C., Atlanta, GA.
MAGISTRATE JUDGE'S ORDER AND NON-FINAL REPORT AND RECOMMENDATION
RUSSELL G. VINEYARD, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Brian Locascio (" Locascio" ), brings this action against defendant BBDO Atlanta, Inc. (" BBDO" ), alleging retaliation in violation of 42 U.S.C. § 1981 (" § 1981" ). [Doc. 5]. BBDO has filed a motion to dismiss Locascio's amended complaint for failure to state a claim, [Doc. 7], which Locascio opposes, [Doc. 9]. For
the reasons that follow, it is RECOMMENDED that BBDO's motion to dismiss the amended complaint, [Doc. 7], be DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Locascio began working for BBDO, a national advertising agency, in September of 2006. [Doc. 5 at 2-3]. From January of 2011 until his termination in September of 2013, Locascio was assigned to work full-time as the Creative Director for BBDO's client account with the Georgia Lottery Corporation (" GLC" ), which was one of BBDO's most lucrative clients. [Id.]. Locascio's primary client contact with GLC was GLC's Creative Mananger, James Hutchinson (" Hutchinson" ). [Id. at 3]. While he was assigned to the GLC account, Locascio alleges that Hutchinson " routinely insisted" that Locascio ensure that BBDO hire contractors, including directors, freelancers, vendors and production companies, on the basis of race and gender. [Id. at 4]. Specifically, Locascio alleges that Hutchinson " made clear that he required black or African-American persons [to be] hired for specific jobs to meet 'diversity' goals," and that, on some occasions, Hutchinson presented Locascio with a " detailed breakdown of the number of black contractors to use for GLC advertising projects." [Id.].
Locascio alleges that he alerted BBDO to Hutchinson's " diversity requirements," which were already well-known to BBDO, and that he " expressly objected to Hutchinson's insistence that Locascio make hiring and contracting decisions based on race," but that BBDO " took no action to prevent Hutchinson's discriminatory conduct." [Id.]. Locascio also complained to BBDO's Human Resources Officer, Debbie Lindner (" Lindner" ), that he believed it was unlawful to hire contractors on the basis of race in accordance with Hutchinson's directives, [id. at 4], but BBDO " rejected [his] concerns on the stated belief that making hiring decisions based on race was lawful to achieve or maintain 'diversity,'" [id. at 4-5].
Locascio alleges several specific instances during the summer of 2013 in which he complained to BBDO about hiring contractors on the basis of race.
See [id. at 5-8]. In particular, Locascio describes an incident when he and other members of BBDO's creative team selected a " trusted freelance contractor" by the name of Matthew Crouch (" Crouch" ), to work on a GLC commercial assignment in July of 2013. [Id. at 5]. Locascio alleges that when BBDO sought Hutchinson's approval to hire Crouch, who was white, Hutchinson " insisted" that they hire William Robert Ray (" Ray" ), who was black. [Id.]. Locascio further asserts that when a certain member of BBDO's creative team " openly questioned the legality of Hutchinson's demand," the Project Manager of BBDO responded by e-mail that " they did not have time to investigate the legality of Hutchinson's mandate." [Id.]. Locascio further alleges that " BBDO directed [him] to acquiesce to Hutchinson's discriminatory
demand," that he hire Ray as a freelance designer " because of his race," and " not because of his abilities or qualifications[.]" [Id. at 5-6]. Locascio asserts that Crouch was also hired " to essentially perform the work ostensibly assigned to Ray." [Id. at 6].
Later that month, Hutchinson " again insisted that BBDO hire Ray" to work on another GLC project that had been assigned to Locascio's creative team. [Id.]. Hutchinson allegedly told BBDO that " he viewed the hiring of Ray as a 'diversity issue.'" [Id.]. Locascio and the other members of BBDO's creative team then received an e-mail from BBDO employee Danielle Claiborne (" Claiborne" ), stating that Hutchinson had told Claiborne that " 'we need to get  Ray in here to do the freelance," as " [Hutchinson] feels it's an issue of diversity.'" [Id.]. Locascio responded to the e-mail, asking for confirmation and noting that " 'this is about to become a huge issue.'" [Id.]. In reply, Claiborne " confirmed Hutchinson's requirements," and added that " '[Hutchinson had] specifically mentioned AA [African-American] designers in terms of getting diversity . . . .'" [Id. (second and third alterations in original)].
Locascio once again approached Lindner in the Human Resources office, and complained about the " use of race in hiring," with specific reference to Hutchinson's " directive to hire Ray." [Id. at 7]. Locascio ultimately " refused to hire Ray, because he believed that doing so, based solely on Ray's race, constituted unlawful racial discrimination." [Id.]. Locascio alleges that after Hutchinson learned of his refusal to hire Ray, Hutchinson stopped returning Locascio's calls and e-mails and otherwise ceased communicating with Locascio about BBDO's ongoing advertising projects with GLC. [Id.]. As Hutchinson's " lack of communication negatively impact[ed] [Locascio's] ability to perform his job duties," Locacsio " again informed Lindner that he objected to hiring contractors based on their race and that he specifically had objected to hiring Ray." [Id.]. Locascio also informed Lindner that " his refusal to hire contractors for GLC projects based on race was the reason that Hutchinson was no longer communicating with him," and that " BBDO's tolerance of [Hutchinson's] discriminating practice was impacting Locascio's ability to do his job." [Id. at 7-8].
Following this complaint, BBDO removed Locascio from the GLC account and reassigned him to " 'new business'" in August of 2013. [Id. at 8]. Locascio alleges that " BBDO knew at the time it transferred [him] away from the GLC account that there was insufficient 'new business' for him to work on," and that, on September 30, 2013-within one month of his reassignment-BBDO terminated his employment on the purported basis that there was " no work for him." [Id.]. Locascio asserts that BBDO's actual purpose in removing him from the GLC account was to " terminate his employment and avoid having to complain to GLC about Hutchinson and his unlawful practices," [id.], and that BBDO's termination of Locascio was in fact " calculated to send a message to other [BBDO] employees that in order to remain employed,  they would have to participate in unlawful and discriminatory employment practices," [id. at 10].
Based on these events, Locascio filed a complaint against BBDO on January 23, 2014. [Doc. 1]. After BBDO moved to dismiss the complaint, see [Doc. 3], Locascio filed a response in opposition to the motion to dismiss, [Doc. 6], as well as a first amended complaint, [Doc. 5]. On March 31, 2014, BBDO moved to dismiss the first amended complaint for ...