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Green v. ADCO International Plastics Corp.

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

February 7, 2018




         This matter is before the Court on Magistrate Judge Linda T. Walker’s Non-Final Report and Recommendation [37] (“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 [7]; (2) Defendants’ Motion to Strike [8]; and (3) Plaintiff Andrea Nicole Green’s Motion to Strike Defendants’ Attachment of Extraneous Evidence [12]. 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 [23]. Also before the Court is Defendants’ Objection to Magistrate Judge’s Non-Final Report and Recommendation [39] and Plaintiff’s Reply to Defendants’ Objection to Magistrate Judge’s Non-Final Report and Recommendation [40].

         I. BACKGROUND [1]

         A. Facts

         Defendant ADCO hired Plaintiff to work as a Finance/Human Resources Manager, and she worked in this capacity for almost a year. (Amended Complaint [16] ¶¶ 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. ¶ 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. (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).

         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. (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).

         Before 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).

         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. (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).

         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. (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).

         Plaintiff 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).

         B. Procedural History

         On January 29, 2017, Plaintiff filed a Complaint [1], alleging violations of various federal employment laws. Defendants moved to dismiss Plaintiff’s Complaint on March 31, 2017. ([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. ([8]). On April 14, 2017 Plaintiff moved to strike exhibits attached to Defendants’ Motion to Dismiss [12] and filed a Response to Defendants’ Motion to Dismiss [14]. One week later, Plaintiff filed her First Amended Complaint [16].[2]

         In 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.

         On May 5, 2017, Defendants filed a Motion to Dismiss Plaintiff’s Amended Complaint [23]. 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.

         On December 27, 2017, the Magistrate Judge issued her Non-Final R&R [37]. 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. ([37] at 14-17).

         With 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).

         With 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).

         With respect to Count 3, the Magistrate Judge noted that the parties stipulated to the dismissal of Plaintiff’s GINA, rendering ...

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