United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Linda T.
Walker’s Non-Final Report and Recommendation 
(“Non-Final R&R”). The Non-Final R&R
recommends dismissing as moot: (1) Defendants ADCO
International Plastics Corporation (ADCO), Robert Adam, and
Lynn Amy Adam’s (collectively “Defendants”)
Motion to Dismiss Plaintiff’s Complaint ; (2)
Defendants’ Motion to Strike ; and (3) Plaintiff
Andrea Nicole Green’s Motion to Strike
Defendants’ Attachment of Extraneous Evidence . The
Non-Final R&R also recommends that the Court grant in
part and deny in part Defendants’ Motion to Dismiss
Plaintiff’s First Amended Complaint . Also before
the Court is Defendants’ Objection to Magistrate
Judge’s Non-Final Report and Recommendation  and
Plaintiff’s Reply to Defendants’ Objection to
Magistrate Judge’s Non-Final Report and Recommendation
ADCO hired Plaintiff to work as a Finance/Human Resources
Manager, and she worked in this capacity for almost a year.
(Amended Complaint  ¶¶ 8-10). Plaintiff
reported to Defendant Robert Adam as well as Dan DeYoung.
(Id. ¶ 12). Plaintiff states that 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].” (Id. ¶ 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.” (Id.
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. (Id. ¶
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.
(Id. ¶ 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.”
(Id. ¶ 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.
(Id. ¶¶ 28-29). Meanwhile, white, male
members of the management team made $6,000, $1,700, and
$1,200 bonuses. (Id. ¶ 29). Plaintiff alleges
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. (Id. ¶ 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.” (Id. ¶ 33). Instead,
Robert Adam hired another female through a temporary service
who was beautiful, “dressed provocatively,” and
had fresh breath. (Id. ¶ 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.” (Id. ¶¶
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.” (Id. ¶ 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. (Id.
¶¶ 44, 45). 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. (Id. ¶ 62).
Plaintiff returned to work and returned the items to ADCO,
she suffered “a heart-related event” and was
hospitalized. (Id. ¶¶ 47, 62).
Plaintiff’s physician correlated her illness with
stress suffered at work and advised her to take some time
off. (Id. ¶ 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. (Id. ¶ 62). Plaintiff states
that when a white male had a stroke, “Defendants
treated him much better.” (Id. ¶ 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.
(Id. ¶¶ 52-53). Plaintiff maintains that
Defendant Robert Adam was responsible for entering the
deductions into the payroll system, but did not do so.
(Id. ¶ 53). When Plaintiff brought the
situation to Defendant Robert Adam’s attention, he
instructed her to “follow up on her own.”
(Id. ¶ 54). Plaintiff obtained the necessary
paperwork from the insurer and gave the portion of the
paperwork meant for the employer to Defendant Robert Adam.
(Id. ¶ 56). The portion of the paperwork given
to Robert Adam excluded medical information about Plaintiff.
(Id. ¶ 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.
(Id. ¶ 57). Although Plaintiff requested that
Defendant Robert Adam complete the short-term disability
paperwork on several occasions, Defendant Robert Adam did not
do so. (Id. ¶ 61).
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. (Id. ¶¶ 11, 66). In the letter,
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. (Id. ¶ 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. (Id. ¶ 65).
According to Plaintiff, such agreements were not imposed on
white, male employees who were terminated. (Id.
¶ 68). Plaintiff states that she attempted to negotiate
the terms of the agreement but she never reached a meeting of
the minds with ADCO. (Id. ¶ 69).
subsequently sought COBRA benefits in order to extend her
medical benefits. (Id. ¶ 70). Defendant ADCO
denied Plaintiff COBRA coverage on the grounds that she had
been terminated for “gross misconduct.”
(Id. ¶ 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. (Id. ¶ 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. (Id. ¶¶ 81-83).
Caucasian employees who left the company were extended COBRA
benefits. (Id. ¶ 71).
January 29, 2017, Plaintiff filed a Complaint , alleging
violations of various federal employment laws. Defendants
moved to dismiss Plaintiff’s Complaint on March 31,
2017. (). 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. ().
On April 14, 2017 Plaintiff moved to strike exhibits attached
to Defendants’ Motion to Dismiss  and filed a
Response to Defendants’ Motion to Dismiss . One
week later, Plaintiff filed her First Amended Complaint
Count 1, Plaintiff alleges that Defendants discriminated
against her on the basis of her race and gender when ADCO
paid her less than her Caucasian male counterparts and
terminated her in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”). In Count 2, Plaintiff alleges that
Defendants violated the Americans with Disabilities Act of
1990, 42 U.S.C. 12101 et seq. (“the
ADA”) by discriminating against her on the basis of her
perceived disability when they terminated her while she was
hospitalized for a cardiac incident and denying her a
reasonable accommodation of time off and short term
disability benefits. In Count 3, Plaintiff alleges that ADCO
violated the Genetic Information Nondiscrimination Act of
2008, 42 U.S.C. § 2000ff (“GINA”) when
Robert Adam conditioned his completion of her short term
disability form on her providing him with her genetic
information. In Count 4, Plaintiff asserts that Defendants
violated 42 U.S.C. § 1981 of The Civil Rights Act when
Defendants discriminated against her on the basis of her race
by paying her less than her Caucasian counterparts and
terminating her. Further in Count 4, Plaintiff asserts
Defendants violated the Equal Pay Act of 1963, 29 U.S.C.
§ 206, as part of The Fair Labor Standards Act by
willfully failing to pay her lawfully earned wages and paying
her male counterparts more. In Count 5, Plaintiff alleges
that Defendant ADCO violated the Consolidated Omnibus Budget
Reconciliation Act of 1985, 29 U.S.C. § 1161
(“COBRA”) when it 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. 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. In Count 7,
Plaintiff asserts 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. Finally, in Count 8, Plaintiff
asserts 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.
5, 2017, Defendants filed a Motion to Dismiss
Plaintiff’s Amended Complaint . Defendants’
argue Plaintiff’s claims should be dismissed because
she executed a severance agreement releasing Defendants from
any potential claims she may have arising out of her
employment [23.2] (“Severance Agreement”).
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 to 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.
December 27, 2017, the Magistrate Judge issued her Non-Final
R&R . The Magistrate Judge first concluded that the
purported severance agreement should not be considered in
connection with Defendants’ Motion to Dismiss, noting
that much of the information Plaintiff would need to defeat
Defendants’ arguments regarding the agreement (e.g.
facts concerning whether there was a “meeting of the
minds” and whether there was an acceptance before
expiration of Defendant ADCO’s offer) would include
matters outside the pleadings. ( at 14-17).
respect to Plaintiff’s Title VII claims in Count 1, the
Magistrate Judge concluded that Plaintiff failed to allege
sufficient facts to make her disparate pay claim plausible.
(Id. at 35). The Magistrate Judge further concluded
that Plaintiff has alleged sufficient facts plausibly
suggesting that her termination occurred as a result of race
discrimination because she alleges that she was terminated
under suspicious circumstances and replaced by a Caucasian.
(Id. at 36). The Magistrate Judge also found that
Plaintiff has alleged sufficient facts to plausibly allege
that her termination may have been triggered by gender
discrimination. (Id. at 37).
respect to Count 2, the Magistrate Judge found that
Plaintiff’s disability discrimination claims under the
ADA should be dismissed because Plaintiff failed to plead
sufficient facts showing that she could perform the essential
functions of her position with or without an accommodation.
(Id. at 32).
respect to Count 3, the Magistrate Judge noted that the
parties stipulated to the dismissal of Plaintiff’s
GINA, rendering ...