United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S NON-FINAL REPORT AND
T. WALKER UNITED STATES MAGISTRATE JUDGE.
case is presently before the Court on Defendants ADCO
International Plastics Corporation (ADCO), Robert Adam, and
Lynn Amy Adam's (together “Defendants”)
Motion to Dismiss Plaintiff's Complaint (Doc. 7), Motion
to Strike Paragraphs 32, 34, 48, 52, and 58 of
Plaintiff's Complaint (Doc. 8), and Motion to Dismiss
Plaintiff's First Amended Complaint (Doc. 23). Also
before the Court is Plaintiff Andrea Nicole Green's
Motion to Strike Defendants' Attachment of Extraneous
Evidence (Doc. 12), Plaintiff's Second Motion to Strike
Defendants' Attachment of Extraneous Evidence (Doc. 27),
and Plaintiff's Motion to File the Attached Sur-Reply in
Opposition to Defendants' Motion to Dismiss
Plaintiff's First Amended Complaint. (Doc. 32). For the
reasons outlined below, this Court
RECOMMENDS that Defendants' Initial
Motion to Dismiss Plaintiff's Complaint (Doc. 7),
Defendants' Motion to Strike Paragraphs 32, 34, 48, 52,
and 58 of Plaintiff's Complaint (Doc. 8), and
Plaintiff's Motion to Strike Defendants' Attachment
of Extraneous Evidence (Doc. 12) be DEEMED
MOOT. Plaintiff's subsequent Motion to Strike
Defendants' Attachment of Extraneous Evidence and Motion
for Leave to File a Sur-Reply are DENIED.
(Doc. 27, 32). This Court also RECOMMENDS
that Defendants' Second Motion to Dismiss be
GRANTED IN PART AND DENIED IN PART. (Doc.
MOTION TO DISMISS
January 29, 2017, Plaintiff filed the instant lawsuit,
alleging Defendants discriminated against her on the basis of
her race, gender, and disability when they terminated her in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title
VII”), 42 U.S.C. § 1981 (“Section
1981”), and the Americans with Disabilities Act of
1990, 42 U.S.C. 12101 et seq. (“the
ADA”). Plaintiff also alleged violations of the Genetic
Information Nondiscrimination Act of 2008, 42 U.S.C. §
2000ff (“GINA”), the Equal Pay Act of 1963, 29
U.S.C. § 206, the Consolidated Omnibus Budget
Reconciliation Act of 1985, 29 U.S.C. § 1161
(“COBRA”), and O.C.G.A. § 34-5-3.
moved to dismiss Plaintiff's Complaint on March 31, 2017.
(Doc. 7). Defendants also moved to strike certain paragraphs
of Plaintiff's Complaint which they maintained were
immaterial, impertinent, or scandalous for the sole purpose
of prejudicing Defendant Robert Adam. (Doc. 8). Plaintiff
moved to strike exhibits attached to Defendants' Motion
to Dismiss on April 14, 2017 (Doc. 12), and filed a Response
to Defendants' Motion to Dismiss (Doc. 14). One week
later, Plaintiff filed her First Amended Complaint. (Doc.
16). Defendants, in their Reply in support of their Motion to
Dismiss and in support of their Motion to Strike certain
paragraphs of Plaintiff's Complaint, pointed out that in
light of Plaintiff's Amended Complaint, the Amended
Complaint became the operative Complaint and that
Defendants' Motion to Dismiss and Motion to Strike should
be deemed moot. Defendants further pointed out that
Plaintiff's Motion to Strike exhibits attached to
Defendants' Motion to Dismiss should also be deemed moot.
Plaintiff did not file a Reply in support of her Motion to
Strike. Defendants filed a Motion to Dismiss Plaintiff's
Amended Complaint on May 5, 2017. (Doc. 23). Given that
Plaintiff has filed an Amended Complaint and that Defendants
agree that their Motion to Dismiss and Motion to Strike
Plaintiff's original Complaint is now moot, this Court
RECOMMENDS that Defendants' original
Motion to Dismiss and Motion to Strike Plaintiff's
original Complaint be DEEMED MOOT. (Docs. 7,
8). Likewise, because Defendants subsequently filed a Motion
to Dismiss Plaintiff's Amended Complaint, Plaintiff's
Motion to Strike certain exhibits attached to Defendants'
original Motion to Dismiss also should be DEEMED
MOOT. (Doc. 12).
Allegations of Plaintiff's Amended
noted, Plaintiff filed her Amended Complaint on April 21,
2017. (Doc. 16). Plaintiff avers in her Amended Complaint
that Defendant ADCO hired her to work as Finance/Human
Resources Manager, and she worked in this capacity for almost
a year. (Am. Compl. ¶¶ 8-10). Plaintiff reported to
Defendant Robert Adam as well as Dan DeYoung. (Am. Compl.
¶ 12). Plaintiff states at the time of hire, Defendant
Robert Adam told her that he should not hire her because she
was the “kind that would sue [him].” (Am. Compl.
¶ 22). Plaintiff understood Defendant Adam's
statement to mean that there were two kinds of
African-Americans, “the kind who sue their employers
and the kind who didn't.” (Am. Compl. ¶ 23).
contends that wages paid to employees did not reflect their
length of tenure or quality of work, but were instead based
on the employee's sex or race. (Am. Compl. ¶ 20). In
support, Plaintiff avers that a black female management
employee made $620 per week while the two men who reported to
her earned $1, 350 per week and $1, 750 per week. (Am. Compl.
¶ 25). When Plaintiff advocated for underpaid female
staff member Teresa Grizzell, who made less than her male
comparators, Defendant Robert Adam told her that Ms. Grizzell
“should be glad she has a job.” (Am. Compl.
¶ 26). Plaintiff also complains that she initially
received a $5, 000 bonus, but Defendant Robert Adam took the
bonus back and replaced it with a $400 bonus. (Am. Compl.
¶¶ 28-29). Meanwhile, white, male members of the
management team made $6, 000, $1, 700, and $1, 200 bonuses.
(Am. Compl. ¶ 29). Plaintiff avers that when a certain
female employee requested a commission that was part of the
compensation package to which the employee and Robert Adam
agreed upon during the employee's hiring, Robert Adam
terminated her employment for insubordination. (Am. Compl.
¶ 32). Ms. Grizzell filled the position during the
interim, but although Defendant Robert Adam agreed that
Grizzell had performed the position well, he did not want
Grizzell to have the position because “she smokes and
her breath stinks, ” “she is dumb, ” and
she did “not always use proper grammar.” (Am.
Compl. ¶ 33). Instead, Robert Adam hired another female
through a temporary service who was beautiful, “dressed
provocatively, ” and had fresh breath. (Am. Compl.
¶ 35). When the temporary employee sought to be hired at
the rate of $70, 000 per year, Defendant Robert Adam became
angry that she should demand such a high rate of pay and told
Plaintiff to “get rid of her.” (Am. Compl.
¶¶ 36-38). Plaintiff also states that Defendant
Robert Adam has referred to women as “cackling hens,
” complained that all women do is “bitch, bitch,
bitch, ” and remarked that women “keep a lot of
shit stirred up.” (Am. Compl. ¶ 39).
states that in July 2015, while she was scheduled to be out
of work to care for her granddaughter who was recovering from
surgery, another employee advised Plaintiff that
“Defendants” told ADCO employees that Plaintiff
was stealing from the company by making unauthorized
purchases and keeping such purchases for her personal use and
that Defendant Robert Adam told employees that Plaintiff
would not be with ADCO much longer. (Am. Compl. ¶ 44).
Some employees were aware, however, that Plaintiff had been
authorized to make certain purchases on behalf of the company
for her personal use to assist her in performing her job.
(Am. Compl. ¶ 62).
Plaintiff returned to work and returned the items to ADCO,
she suffered “a heart-related event” and was
hospitalized. (Am. Compl. ¶¶ 47, 62).
Plaintiff's physician correlated her illness with stress
suffered at work and advised her to take some time off. (Am.
Compl. ¶ 48). Plaintiff states that while she was on
leave, Defendants slanderously accused her of stealing,
terminated her, and replaced her with a white, female
employee. (Am. Compl. ¶ 62). Plaintiff states that when
a white male had a stroke, “Defendants treated him much
better.” (Am. Compl. ¶ 51).
Plaintiff attempted to make a claim against her
employer-provided disability insurance policy, she discovered
that the insurance had never gone into effect and that the
premiums were not being removed from her paycheck. (Am.
Compl. ¶¶ 52-53). Plaintiff maintains that
Defendant Robert Adam was responsible for entering the
deductions into the payroll system, but did not do so. (Am.
Compl. ¶ 53). When Plaintiff brought the situation to
Defendant Robert Adam's attention, he instructed her to
“follow up on her own.” (Am. Compl. ¶ 54).
Plaintiff obtained the necessary paperwork from the insurer
and gave the portion of the paperwork meant for the employer
to Defendant Robert Adam. (Am. Compl. ¶ 56). The portion
of the paperwork given to Robert Adam excluded medical
information about Plaintiff. (Am. Compl. ¶ 56).
Defendant Robert Adam demanded the remainder of the
application, but Plaintiff refused to show it to him on the
grounds that the information in the remainder of the
application included information protected by the Genetic
Information Nondiscrimination Act of 2008. (Am. Compl. ¶
57). Although Plaintiff requested that Defendant Robert Adam
complete the short-term disability paperwork on several
occasions, Defendant Robert Adam did not do so. (Am. Compl.
though Defendants never criticized Plaintiff about her work
or included any discipline in her personnel file, Defendant
Robert Adam emailed Plaintiff a termination letter on July
27, 2015. (Am. Compl. ¶¶ 11, 66). Therein, Adam
explained that Plaintiff had been terminated because the CPA
“found several mistakes and omissions” and that
she failed to submit the proper paperwork to ensure that
deductions for medical benefits had been taken from her
paycheck. (Am. Compl. ¶ 66). When Defendant Robert Adam
terminated Plaintiff, he offered her a severance agreement,
which as part of its terms, required that she release her
claims against ADCO. (Am. Compl. ¶ 65). According to
Plaintiff, such agreements were not imposed on white, male
employees who were terminated. (Am. Compl. ¶ 68).
Plaintiff states that she attempted to negotiate the terms of
the agreement but she never reached a meeting of the minds
with ADCO. (Am. Compl. ¶ 69).
subsequently sought COBRA benefits in order to extend her
medical benefits. (Am. Compl. ¶ 70). Defendant ADCO
denied Plaintiff COBRA coverage on the grounds that she had
been terminated for “gross misconduct.” (Am.
Compl. ¶ 75). Defendant Robert Adam later asserted that
Plaintiff had enrolled herself into medical benefits in April
of 2015 without alerting him to start the payroll deductions.
(Am. Compl. ¶ 79). Plaintiff avers that according to her
written offer of employment, she was entitled to medical
benefits after ninety days of employment, and that Defendant
Robert Adam was aware that she was receiving such benefits
because when she reported her difficulty with obtaining
insurance benefits, he told her to handle it herself. (Am.
Compl. ¶¶ 81-83). Caucasian employees who left the
company were extended COBRA benefits. (Am. Compl. ¶ 71).
argues in Count 1 that Defendant ADCO discriminated against
her on the basis of her race and her gender in violation of
Title VII when ADCO paid her less than her Caucasian male
counterparts and terminated her. Plaintiff further contends
that ADCO's pay practices disparately impact females and
minority employees. (Am. Compl. ¶ 101). Plaintiff
contends in Count 2 that ADCO discriminated against her on
the basis of her perceived disability when ADCO terminated
her while she was hospitalized for a cardiac incident and
denied her a reasonable accommodation of time off and short
term disability benefits. (Am. Compl. ¶ 115). Plaintiff
asserts in Count 3 that ADCO violated GINA when Robert Adam
conditioned his completion of her short term disability form
on her providing him with her genetic information. (Am.
Compl. ¶¶ 122-23). Plaintiff contends in Count 4
that Defendants discriminated against her on the basis of her
race in violation of Section 1981 when Defendants paid her
less than her Caucasian counterparts and terminated her. (Am.
Compl. 126-31). Plaintiff further contends in Count 4 that
Defendants violated the Fair Labor Standards Act when
Defendants willfully failed to pay her lawfully earned wages
and paid her male counterparts more. (Am. Compl. ¶ 137).
In Count 5, Plaintiff argues ADCO caused COBRA benefits to be
withheld from her while she was under a doctor's care
because ADCO falsely informed the benefits administrator that
Plaintiff was terminated for gross misconduct and ineligible
for COBRA benefits. (Am. Compl. ¶¶ 141-42). In
Count 6, Plaintiff contends that Defendants violated O.C.G.A.
§ 34-5-3 when they paid her at a lower rate than her
male counterparts even though they performed work which
required equal skill, effort, and responsibility under
similar working conditions. (Am. Compl. ¶ 147-49).
Plaintiff argues in Count 7, that Defendants discriminated
against her on the basis of her disability in violation of
O.C.G.A. 34-6A-4 when they terminated her while she was on
medical leave due to her disability. (Am. Compl. ¶ 153).
Finally, in Count 8, Plaintiff argues Defendants
intentionally inflicted emotional distress upon her when they
discriminated against her, did not address her complaints of
unequal treatment between employees of different races and
different genders, and encouraged her to guess at numbers
necessary for financial reports, placing her in jeopardy of
offending criminal laws.
Defendants' Motion to Dismiss, they argue Plaintiff's
claims arising out of her employment should be dismissed
because she executed a severance agreement agreeing to
release Defendants from any potential claims she may have
arising out of her employment. Defendants further contend
that (1) Plaintiff's claims pursuant to O.C.G.A. §
34-5-3 (Georgia's equal pay statute) and O.C.G.A. 34-6A-2
(Georgia's disability discrimination statute) should be
dismissed because they have not been filed within their
respective limitations periods; (2) Plaintiff fails to state
a GINA claim because the allegations of her Amended Complaint
do not suggest that ADCO requested her genetic information
and she failed to file a timely charge of discrimination
raising the issues pursuant to GINA; (3) Plaintiff fails to
state an ADA claim because she failed allege sufficient facts
showing that she was capable of performing the essential
functions of her position, that she suffered from a
disability, or that ADCO perceived her as disabled; (4)
Plaintiff fails to state a claim for intentional infliction
of emotional distress because she fails to allege facts
demonstrating that Defendants' actions were extreme or
outrageous; and (5) Plaintiff fails to state a Title VII
claim because she fails to plead facts tending to show that
an individual from outside of her protected racial and gender
class was treated more favorably than she was.
Rule 12(b)(6) Motion to Dismiss Standard
is warranted under Rule 12(b)(6) if, assuming the truth of
the factual allegations of the plaintiff's complaint,
there is a dispositive legal issue which precludes relief or
it is based on an indisputably meritless legal theory.
Neitzke v. Williams, 490 U.S. 319, 326 (1989);
Brown v. Crawford Cty., 960 F.2d 1002, 1009-10 (11th
Cir. 1992). A Rule 12(b)(6) motion to dismiss also tests the
sufficiency of the complaint against the legal standard set
forth in Rule 8: “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). A complaint “requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To
state a claim with sufficient specificity requires that the
complaint have enough factual matter taken as true to suggest
required elements of the claim. Watts v. Fla.
Int'lUniv., 495 F.3d 1289, 1296 (11th Cir.
2007); Hill v. White, 321 F.3d 1334, 1335 (11th Cir.
2003). Factual allegations in a complaint need not be