Jacobs v. Donnelly Communications

Filing 8

OPINION AND ORDER ADOPTING 5 Final Report and Recommendation. This action is DISMISSED WITHOUT PREJUDICE. Signed by Judge William S. Duffey, Jr on 9/26/2013. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ERIKA JACOBS,
Plaintiff,
v.

1:13-cv-980-WSD

DONNELLY COMMUNICATIONS
et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Russell G. Vineyard’s
Final Report and Recommendation [5] (“R&R”) recommending that this action be
dismissed without prejudice for want of prosecution.
I.

BACKGROUND
On March 26, 2013, Plaintiff Erika Jacobs (“Plaintiff”), proceeding pro se,

filed her application to proceed in forma pauperis [1] (“IFP Application”) and to
initiate this action alleging employment discrimination by her former employer
Donnelly Communications (“Donnelly”) and several individual Donnelly
employees (collectively, “Defendants”). Plaintiff asserts that Defendants harassed
her in various ways because of her allergies. Plaintiff’s original Complaint [3]
asserts claims for violations of the Genetic Information Non-Discrimination Act

(“GINA”) and for retaliation under Title VII of the Civil Rights Act of 1964 (“Title
VII”).
On April 1, 2013, after reviewing Plaintiff’s Complaint for frivolity under 28
U.S.C. § 1915(e)(2), Magistrate Judge Vineyard issued an order [2] (the “April 1st
Order”) granting Plaintiff’s IFP Application but ordering Plaintiff to file an
amended complaint. Judge Vineyard found that Plaintiff’s allegations, regarding
discrimination based on her medical condition, failed to state a claim under GINA
because Plaintiff failed to allege that Defendants discriminated against Plaintiff
because of genetic tests or other “genetic information.” Judge Vineyard further
found that Plaintiff’s allegations failed to support a claim for retaliation under Title
VII because Plaintiff failed to allege that she opposed an “unlawful employment
practice” prohibited by Title VII. Judge Vineyard ordered Plaintiff to file an
amended complaint stating plausible claims for relief.
On April 17, 2013, Plaintiff filed her Amended Complaint [4], also asserting
claims under GINA and Title VII. On April 22, 2014, after reviewing the
Amended Complaint, Judge Vineyard issued his R&R. Judge Vineyard
determined that, although it contains more detail regarding Defendants’ alleged
harassment, the Amended Complaint still fails to state plausible claims because the
alleged actions do not constitute violations of GINA or Title VII. Judge Vineyard

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concluded that the Amended Complaint does not comply with the April 1st Order,
and he recommends that this action be dismissed without prejudice for want of
prosecution.
On May 14, 2013, Plaintiff filed her Objections [7] to the R&R. She argues
that her Amended Complaint states claims under GINA and Title VII.
II.

DISCUSSION
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. V 2011);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A
district judge “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). If no party has objected to the report and recommendation,
a court conducts only a plain error review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.

Analysis

Plaintiff objects to the Magistrate Judge’s findings that her Amended
Complaint fails to state claims for relief under either GINA or Title VII. The

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Court reviews de novo the sufficiency of the allegations to support claims under
these statutes.1
1.

GINA Claims

GINA prohibits an employer from discriminating against an employee
“because of genetic information with respect to the employee.” 42 U.S.C.
§ 2000ff-1(a). “Genetic information” means the employee’s “genetic tests,” “the
genetic tests of [the employee’s] family members, and “the manifestation of a
disease or disorder in [the employee’s] family members.” Id. § 2000ff(4)(A).
Plaintiff does not allege that Defendants were aware of, let alone
discriminated against Plaintiff because of, Plaintiff’s genetic tests or the genetic
tests or medical conditions of Plaintiff’s family members. See id. Plaintiff’s
Amended Complaint, construed liberally, alleges, at most, that Defendants
discriminated against Plaintiff because of her allergies, which Plaintiff alleges to
be a genetic condition. Discrimination based on a condition, as opposed to
“genetic information,” is not covered by GINA. See id.; see also Macon v.

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Plaintiff does not object to the Magistrate Judge’s conclusion that the failure to
file an amended complaint stating plausible claims constitutes a violation of the
April 1st Order warranting dismissal of this action. The Court does not find any
error in this conclusion. See LR 41.3(A), NDGa (authorizing dismissal of an
action for want of prosecution if the plaintiff “fail[s] or refuse[s] to obey a lawful
order of the court in the case).

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Cedarcroft Health Servs., Inc., No. 4:12-cv-1481, 2013 WL 1283865, at *7 (E.D.
Mo. Mar. 27, 2013) (holding that alleged discrimination because of a disability is
not discrimination because of “genetic information” and thus is not actionable
under GINA). The Amended Complaint therefore fails to state a claim under
GINA and does not comply with Judge Vineyard’s April 1st Order. For this
reason, the Court finds that this action should be dismissed without prejudice for
want of prosecution. See LR 41.3(A), NDGa.
2.

Title VII Claims

To discriminate against an employee “because of [the employee’s] race,
color, religion, sex, or national origin” is an “unlawful employment practice” under
Title VII. 42 U.S.C. § 2000e-2(a). Title VII generally prohibits retaliation against
an employee for opposing “unlawful employment practices” or participating in the
investigation of “unlawful employment practices.” See id.; 42 U.S.C. § 2000e3(a); McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008). To state a claim
under Title VII based on retaliation, the plaintiff must allege facts sufficient to
show that she suffered a materially adverse employment action because she
complained about an “unlawful employment practice.” See Weeks v. Harden Mfg.
Corp., 291 F.3d 1307, 1311 (11th Cir. 2002).
Plaintiff here does not allege that she complained about an “unlawful

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employment practice.” Plaintiff’s Amended Complaint alleges, at most, that
Defendants discriminated against her because of her allergies. Plaintiff does not
allege that Defendants discriminated against her, or any other employee, on the
basis of “race, color, religion, sex, or national origin.” See 42 U.S.C. § 2000e-2(a).
The Amended Complaint therefore fails to state a claim under Title VII and does
not comply with Judge Vineyard’s April 1st Order. For this additional reason, the
Court finds that this action should be dismissed without prejudice for want of
prosecution. See LR 41.3(A), NDGa.
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Russell G. Vineyard’s

Final Report and Recommendation [5] is ADOPTED. This action is DISMISSED
WITHOUT PREJUDICE.

SO ORDERED this 26th day of September, 2013.

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