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Green v. ADCO International Plastics Corp.

United States District Court, N.D. Georgia, Atlanta Division

December 27, 2017

ANDREA NICOLE GREEN, Plaintiff,
v.
ADCO INTERNATIONAL PLASTICS CORPORATION, ROBERT ADAM, and LYNN AMY ADAM, Defendants.

          MAGISTRATE JUDGE'S NON-FINAL REPORT AND RECOMMENDATION

          LINDA T. WALKER UNITED STATES MAGISTRATE JUDGE.

         This 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. 23).

         DEFENDANTS' MOTION TO DISMISS

         I. Procedural History

         On 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.

         Defendants 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).

         II. Allegations of Plaintiff's Amended Complaint

         As 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).

         Plaintiff 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).

         Plaintiff 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).

         Before 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).

         When 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. ¶ 61).

         Even 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).

         Plaintiff 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).

         Plaintiff 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.

         In 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.

         II. LEGAL ANALYSIS

         A. Rule 12(b)(6) Motion to Dismiss Standard

         Dismissal 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 ...


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