United States District Court, N.D. Georgia, Atlanta Division
H. COHEN, UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
• 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 ...