United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUTFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge Janet F.
King's Non-Final Report and Recommendation 
(“R&R”). The R&R recommends that the
Court dismiss all of Plaintiff Catrice Crawford's
(“Plaintiff”) claims, except her claims under the
Family Medical Leave Act, 29 U.S.C. § 2612, et
seq. (“FMLA”) arising after August 1, 2013.
Also before the Court are Defendant Georgia Department of
Transportation's (“GDOT”) Objections to the
alleges that her employment with GDOT began on April 15,
2005. (Compl. [1.2] ¶ 2.I.a). Over the next few years,
Plaintiff received promotions and increases in her salary.
(Id. ¶ 2.I.a-b). Plaintiff alleges that, after
she filed an “In-House Grievance” on January 14,
2013, based on “unfair treatment, unlawful
discrimination, and . . . managers . . . erroneously applying
GDOT policies and procedures[, ]” her “work
environment shifted for the worse.” (Id.
¶ 2.I.c). Plaintiff alleges that she suffered three
“rounds” of retaliation, the first of which
occurred between March 4, 2013, and May 6, 2013. During this
time, Plaintiff alleges her supervisors issued performance
and disciplinary write-ups, conducted intimidating meetings,
and altered her work assignments. (Id. ¶ 2.II).
This conduct, Plaintiff alleges, violated the Georgia Fair
Employment Practices Act, O.C.G.A. § 45-19-20, et
seq. (“FEPA”), the Code of Ethics for
Government Service, and the Governor's Executive Order of
January 10, 2011. (Id.). The alleged retaliation and
harassment also included “denying training, an
unnecessary coaching write-up, [and] denying [Plaintiff]
qualified leave of absence.” (Id. ¶
2.IV). Plaintiff alleges this conduct violated the FMLA and
the Equal Pay Act, 29 U.S.C. § 206 et seq.
March 27, 2013, Plaintiff filed a charge of discrimination
with the EEOC, alleging race discrimination and retaliation.
(Id. ¶ 2.III.; [3.1] (“First EEOC
Charge”)). Plaintiff alleges that a “second round
of retaliation and harassment” occurred from May 6,
2013, through August 2, 2013. This second round involved her
supervisors allegedly “denying/approving training,
taking a qualified leave of absence, demotion, computer
sabotage, and write-ups.” (Id. ¶ 2.V).
third and final round “of a more aggressive form of
retaliation” took place from August 5, 2013, through
September 12, 2013, when Plaintiff was terminated from her
employment. The alleged retaliation involved GDOT using its
“policies and procedures sick leave policy against
[her] absence, ” “den[ying] and ignor[ing]
reasonable accommodations for FMLA for [her] oncologist,
daughters [sic] medical condition and back injury, ”
excluding her attendance at meetings and issuing
“performance evaluation accusations.”
(Id. ¶ 2.VI). Plaintiff alleges that, from
August 5, 2013, through August 19, 2013, she requested FMLA
leave due to a back injury, and, on August 21, 2013, leave
was denied. She also alleges GDOT denied a health
accommodation for Plaintiff to care for her daughter,
violating the FMLA. (Id. ¶ 2.VI.a). Plaintiff
alleges that, on September 10, 2013, she was directed to move
her office and was denied assistance to do so, in violation
of the Americans with Disabilities Act, 42 U.S.C. §
12101, et seq. (“ADA”). (Id.
Plaintiff was terminated, on April 11, 2014, she filed a
second EEOC charge of discrimination. ([3.2] (“Second
EEOC Charge”)). In it, Plaintiff alleged the following:
(1) discrimination based on her race and sex, pursuant to
Title VII of the Civil Rights Act of 1964 (“Title
VII”), (2) retaliation, pursuant to Title VII, due to
her complaints of discrimination that resulted in
disciplinary write-ups, changes in job duties, work
assignments and projects, denial of overtime and promotions,
demotion, and denial of reasonable accommodation, and (3)
violation of the ADA and denial of medical leave.
August 7, 2014, the EEOC issued right to sue letters on the
First EEOC Charge and the Second EEOC Charge. ([3.3], [3.4])
(“Right to Sue Letters”)). In both letters,
Plaintiff was advised that, with respect to her Title VII and
ADA claims, “Your lawsuit must be filed WITHIN 90
DAYS of your receipt of this notice; or your right to
sue based on this charge will be lost.” (Id.
(emphasis in original)). With respect to Plaintiff's EPA
claim, she was advised that such “suits must be filed
in federal or state court within 2 years (3 years for willful
violations) of the alleged EPA underpayment.”
September 2, 2016, Plaintiff filed her Complaint in the State
Court of Fulton County, Georgia, asserting claims under Title
VII, the ADA, the EPA, the FMLA, and the FEPA. On October 13,
2016, GDOT removed this action to this Court. (). On
October 18, 2016, GDOT filed its Motion to Dismiss ,
arguing: (1) Plaintiff's Title VII claims are untimely;
(2) her FMLA claims fail to state a claim; (3) her ADA claims
are untimely and barred by the Eleventh Amendment; (4)
Plaintiff failed to state a claim under the EPA and, even if
she had, her claim is barred by the statute of limitations;
and (5) Plaintiff's FEPA claim should be dismissed for
failure to exhaust administrative remedies.
February 1, 2017, the Magistrate Judge issued her thorough
R&R. The Magistrate Judge found that Plaintiff's
Title VII, EPA, and ADA claims are barred by the applicable
statutes of limitation, and she recommends the Court grant
GDOT's Motion to Dismiss these claims. The Magistrate
Judge recommends the Court grant GDOT's Motion to Dismiss
Plaintiff's FEPA claims, because Plaintiff has not
alleged that she exhausted her FEPA administrative remedies.
As to Plaintiff's FMLA claim, the Magistrate Judge,
noting that the longer three-year statute of limitations
applies to claims of willful violations of the FMLA,
recommends that the Court grant Plaintiff leave to amend her
complaint, because her allegations suggest, but do not
explicitly state, that GDOT's violations were willful.
The Magistrate Judge found that, if the three-year
limitations period applies, Plaintiff's FMLA claim is not
barred by the statute of limitations.
respect to GDOT's argument that Eleventh Amendment
immunity bars Plaintiff's FMLA claim, the Magistrate
Judge found that GDOT's removal of this action to federal
court waived its Eleventh Amendment immunity claim.
Accordingly, the Magistrate Judge recommends the Court
dismiss all of Plaintiff's claims, except her FMLA claim.
She recommends the Court allow Plaintiff to amend her
Complaint with respect to claims based on FMLA leave after
August 1, 2013.
February 15, 2017, GDOT filed its Objections. GDOT objects
only to the Magistrate Judge's recommendation with
respect to Eleventh Amendment immunity on Plaintiff's
FMLA claim. GDOT argues that the Court should apply
Anderson v. Bd. of Regents of Univ. Sys. of Ga., 822
F.Supp.2d 1342 (N.D.Ga. 2011) (“Anderson
II”), and grant GDOT's Motion to Dismiss the