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D'Angelo v. Wellstar Medical Group, LLC

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

May 28, 2019

ALISON D'ANGELO, Plaintiff,
v.
WELLSTAR MEDICAL GROUP, LLC and PAULINE BRIDGEMAN, in her individual capacity, Defendants.

          ORDER

          MARK H. COHEN, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Non-Final Report and Recommendation ("R&R") of Magistrate Judge John K. Larkins III [Doc. 24] recommending that Defendant WellStar Medical Group, LLC ("WellStar")'s Partial Motion to Dismiss Plaintiffs Amended Complaint [Doc. 19] be granted in part and denied in part, and Defendant Pauline Bridgeman ("Bridgeman")'s Motion to Dismiss Plaintiffs Amended Complaint [Doc. 18] be granted. The Order for Service of the R&R [Doc. 25] provided notice that, in accordance with 28 U.S.C. § 636(b)(1), the parties were authorized to file objections within fourteen (14) days of the receipt of that Order. Within that time period, WellStar filed its objections to the R&R [Doc. 27] ("WellStar's Objs.") and Plaintiff Alison D'Angelo ("D'Angelo") filed her objections to the R&R [Doc. 26] ("D'Angelo's Objs.").

         In reviewing a Magistrate Judge's R&R, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court." United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (1lth Cir. 1988)) (internal quotation marks omitted). Absent objection, the district court judge "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge," 28 U.S.C. § 636(b)(1), and need only satisfy itself that there is no plain error on the face of the record in order to accept the recommendation. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983). Further, "the district court has broad discretion in reviewing a magistrate judge's report and recommendation"-it "does not abuse its discretion by considering an argument that was not presented to the magistrate judge" and "has discretion to decline to consider a party's argument when that argument was not first presented to the magistrate judge." Williams v. McNeil, 557 F.3d 1287, 1290-92 (11th Cir. 2009). In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the Court has conducted a de novo review of those portions of the R&R to which Plaintiff objects and has reviewed the remainder of the R&R for plain error. See Slay, 714 F.2d at 1095.

         I. WELLSTAR'S OBJECTION

         D'Angelo alleges that she worked for WellStar as a Registered Medical Assistant at the East Cobb Medical Center in Marietta, Georgia and was forced to resign. Am. Compl. [Doc. 17] ¶ 12. She asserts the following claims against WellStar: (1) Race discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII") and 42 U.S.C. § 1981 (Count I); (2) Age discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. ("ADEA") (Count II); and (3) State law claims for negligent retention and supervision (Count III), breach of contract (Count IV), and intentional infliction of emotional distress (Count V). Am. Compl. ¶¶ 48-78. In its Partial Motion to Dismiss, WellStar seeks dismissal of Counts I-III and V. WellStar's Partial Mot. to Dismiss at 4-14.

         In his R&R, Judge Larkins recommends denial of WellStar's motion with respect to the claims in Counts I and II, finding that "D'Angelo has made a plausible showing that she was forced to resign and that her forced resignation was the product of a race- or age-based discriminatory motive." R&R at 16. Judge Larkins recommends that WellStar's motion be granted as to the intentional infliction of emotional distress claim in Count V because "D'Angelo has failed to show that [Well Star] engaged in conduct that was extreme and outrageous as a matter of law," and as to the derivative claim for negligent hiring and retention in Count III. Id. at 22.

         In its sole objection, WellStar contends that Judge Larkins erred by concluding that D'Angelo adequately pled that she suffered an adverse employment action when presented with a "resign or be fired" ultimatum on April 10, 2018, because she submitted a resignation "notice" one day earlier and that prevents her from showing that she suffered an adverse action. WellStar's Objs. at 2-5. However, the facts as alleged in D'Angelo's Amended Complaint, which the Court must accept a true for purposes of WellStar's motion to dismiss, indicate otherwise:

• On Friday, April 6, 2018, D'Angelo, a 42-year-old Caucasian female, was informed by Bridgeman, an African American manager of East Cobb Medical Center who reported to Christi Carmichael, the African American Director of Physician Operations (both of whom had the authority to fire D'Angelo), that Carmichael had received a formal complaint from an African American employee named Takesha accusing D'Angelo of making physical contact with and threatening her. Am. Compl. ¶¶ 12, 14-15, 25.
• On Monday, April 9, 2018, at 4:30 p.m., D'Angelo was told to report to the corporate office by 9:00 a.m. the next day. Id. ¶ 28.
• Based upon her thirteen year tenure at WellStar, D'Angelo was aware that WellStar's practice prior to terminating employees was to require them to report to the corporate office. Id. ¶ 29.
• On Monday, April 9, 2018, at 5:30 p.m., D'Angelo left a letter at Bridgeman's office which stated her intent to resign two weeks from that date. Id.¶30.
• On Tuesday, April 10, 2018, D'Angelo met with Carmichael and another WellStar representative and was told that WellStar was leaning toward terminating D'Angelo but that, if she resigned that day, she could get two weeks of pay. Id. ¶ 34.
• D'Angelo tried to explain the incident with Takesha, the complainant, but Carmichael and the other WellStar representative disagreed with D'Angelo's explanation because other African American witnesses backed Takesha's story. Id. ¶ 35.
• D'Angelo was then given a choice to "go with [her] two weeks' notice and be terminated that same day or resign that day with two ...

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