Crawford v. Georgia Department of Transportation (GDOT)

Filing 12

OPINION AND ORDER adopting as modified Magistrate Judge Janet F. KingsNon-Final Report and Recommendation 9 , sustaining GDOTs Objections to the R&R 11 , granting GDOTs Motion to Dismiss 3 and dismissing this action with prejudice. Signed by Judge William S. Duffey, Jr on 4/19/17. (ddm)

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

1:16-cv-3810-WSD

GEORGIA DEPARTMENT OF
TRANSPORTATION (GDOT),
Defendant.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Janet F. King’s
Non-Final Report and Recommendation [9] (“R&R”). The R&R recommends that
the Court dismiss all of Plaintiff Catrice Crawford’s (“Plaintiff”) claims, except her
claims under the Family Medical Leave Act, 29 U.S.C. § 2612, et seq. (“FMLA”)
arising after August 1, 2013. Also before the Court are Defendant Georgia
Department of Transportation’s (“GDOT”) Objections to the R&R [11].

I.

BACKGROUND
A.

Facts1

Plaintiff alleges that her employment with GDOT began on April 15, 2005.
(Compl. [1.2] ¶ 2.I.a). Over the next few years, Plaintiff received promotions and
increases in her salary. (Id. ¶ 2.I.a-b). Plaintiff alleges that, after she filed an
“In-House Grievance” on January 14, 2013, based on “unfair treatment, unlawful
discrimination, and . . . managers . . . erroneously applying GDOT policies and
procedures[,]” her “work environment shifted for the worse.” (Id. ¶ 2.I.c).
Plaintiff alleges that she suffered three “rounds” of retaliation, the first of which
occurred between March 4, 2013, and May 6, 2013. During this time, Plaintiff
alleges her supervisors issued performance and disciplinary write-ups, conducted
intimidating meetings, and altered her work assignments. (Id. ¶ 2.II). This
conduct, Plaintiff alleges, violated the Georgia Fair Employment Practices Act,
O.C.G.A. § 45-19-20, et seq. (“FEPA”), the Code of Ethics for Government
Service, and the Governor’s Executive Order of January 10, 2011. (Id.). The
alleged retaliation and harassment also included “denying training, an unnecessary
1

The facts are taken from the R&R and the record. The parties have not
objected to any specific facts in the R&R, and the Court finds no plain error in
them. The Court thus adopts the facts set out in the R&R. See Garvey v. Vaughn,
993 F.2d 776, 779 n.9 (11th Cir. 1993).

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coaching write-up, [and] denying [Plaintiff] qualified leave of absence.” (Id.
¶ 2.IV). Plaintiff alleges this conduct violated the FMLA and the Equal Pay Act,
29 U.S.C. § 206 et seq. (“EPA”). (Id.).
On March 27, 2013, Plaintiff filed a charge of discrimination with the
EEOC, alleging race discrimination and retaliation. (Id. ¶ 2.III.; [3.1] (“First
EEOC Charge”)). Plaintiff alleges that a “second round of retaliation and
harassment” occurred from May 6, 2013, through August 2, 2013. This second
round involved her supervisors allegedly “denying/approving training, taking a
qualified leave of absence, demotion, computer sabotage, and write-ups.” (Id.
¶ 2.V).
The third and final round “of a more aggressive form of retaliation” took
place from August 5, 2013, through September 12, 2013, when Plaintiff was
terminated from her employment. The alleged retaliation involved GDOT using its
“policies and procedures sick leave policy against [her] absence,” “den[ying] and
ignor[ing] reasonable accommodations for FMLA for [her] oncologist, daughters
[sic] medical condition and back injury,” excluding her attendance at meetings and
issuing “performance evaluation accusations.” (Id. ¶ 2.VI). Plaintiff alleges that,
from August 5, 2013, through August 19, 2013, she requested FMLA leave due to
a back injury, and, on August 21, 2013, leave was denied. She also alleges GDOT

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denied a health accommodation for Plaintiff to care for her daughter, violating the
FMLA. (Id. ¶ 2.VI.a). Plaintiff alleges that, on September 10, 2013, she was
directed to move her office and was denied assistance to do so, in violation of the
Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”). (Id.
¶ 2.VI.b).
After Plaintiff was terminated, on April 11, 2014, she filed a second EEOC
charge of discrimination. ([3.2] (“Second EEOC Charge”)). In it, Plaintiff alleged
the following: (1) discrimination based on her race and sex, pursuant to Title VII
of the Civil Rights Act of 1964 (“Title VII”), (2) retaliation, pursuant to Title VII,
due to her complaints of discrimination that resulted in disciplinary write-ups,
changes in job duties, work assignments and projects, denial of overtime and
promotions, demotion, and denial of reasonable accommodation, and (3) violation
of the ADA and denial of medical leave. (Id.).
On August 7, 2014, the EEOC issued right to sue letters on the First EEOC
Charge and the Second EEOC Charge. ([3.3], [3.4]) (“Right to Sue Letters”)). In
both letters, Plaintiff was advised that, with respect to her Title VII and ADA
claims, “Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this
notice; or your right to sue based on this charge will be lost.” (Id. (emphasis in
original)). With respect to Plaintiff’s EPA claim, she was advised that such “suits

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must be filed in federal or state court within 2 years (3 years for willful violations)
of the alleged EPA underpayment.” (Id.).
B.

Procedural History

On September 2, 2016, Plaintiff filed her Complaint in the State Court of
Fulton County, Georgia, asserting claims under Title VII, the ADA, the EPA, the
FMLA, and the FEPA. On October 13, 2016, GDOT removed this action to this
Court. ([1]). On October 18, 2016, GDOT filed its Motion to Dismiss [3],
arguing: (1) Plaintiff’s Title VII claims are untimely; (2) her FMLA claims fail to
state a claim; (3) her ADA claims are untimely and barred by the Eleventh
Amendment; (4) Plaintiff failed to state a claim under the EPA and, even if she
had, her claim is barred by the statute of limitations; and (5) Plaintiff’s FEPA claim
should be dismissed for failure to exhaust administrative remedies.
On February 1, 2017, the Magistrate Judge issued her thorough R&R. The
Magistrate Judge found that Plaintiff’s Title VII , EPA, and ADA claims are barred
by the applicable statutes of limitation, and she recommends the Court grant
GDOT’s Motion to Dismiss these claims. The Magistrate Judge recommends the
Court grant GDOT’s Motion to Dismiss Plaintiff’s FEPA claims, because Plaintiff
has not alleged that she exhausted her FEPA administrative remedies. As to
Plaintiff’s FMLA claim, the Magistrate Judge, noting that the longer three-year

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statute of limitations applies to claims of willful violations of the FMLA,
recommends that the Court grant Plaintiff leave to amend her complaint, because
her allegations suggest, but do not explicitly state, that GDOT’s violations were
willful. The Magistrate Judge found that, if the three-year limitations period
applies, Plaintiff’s FMLA claim is not barred by the statute of limitations.
With respect to GDOT’s argument that Eleventh Amendment immunity bars
Plaintiff’s FMLA claim, the Magistrate Judge found that GDOT’s removal of this
action to federal court waived its Eleventh Amendment immunity claim.
Accordingly, the Magistrate Judge recommends the Court dismiss all of Plaintiff’s
claims, except her FMLA claim. She recommends the Court allow Plaintiff to
amend her Complaint with respect to claims based on FMLA leave after
August 1, 2013.
On February 15, 2017, GDOT filed its Objections. GDOT objects only to
the Magistrate Judge’s recommendation with respect to Eleventh Amendment
immunity on Plaintiff’s FMLA claim. GDOT argues that the Court should apply
Anderson v. Bd. of Regents of Univ. Sys. of Ga., 822 F. Supp. 2d 1342 (N.D. Ga.
2011) (“Anderson II”), and grant GDOT’s Motion to Dismiss the FMLA claim on
the grounds of Eleventh Amendment immunity. Plaintiff did not file any
objections to the R&R.

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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); 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). Where no party has objected to the report and recommendation, the
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

The Court first considers, on de novo review, whether Eleventh Amendment
immunity bars Plaintiff’s FMLA claim. The Court then reviews for plain error the
remainder of the R&R, to which no party objects.
1.

Eleventh Amendment Immunity

Plaintiff’s FMLA claim arises under the self-care provisions of the Leave
Act, 29 U.S.C. § 2612(a)(1)(D). Defendant argues that the Eleventh Amendment
bars Plaintiff’s FMLA claim.

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GDOT, as an arm of the State of Georgia, is ordinarily protected by the
Eleventh Amendment from claims under the self-care provisions of the FMLA.
See Coleman v. Court of Appeals of Md., 566 U.S. 30, 37-38 (2012). Because
GDOT voluntarily removed this action to federal court, however, the Court must
consider whether GDOT waived its Eleventh Amendment immunity. In
Lapides v. Bd. of Regents, 535 U.S. 613 (2002) the Supreme Court of the United
States addressed whether a state that removes a case to federal court may then
invoke Eleventh Amendment immunity. The pertinent facts of Lapides are as
follows:
In Lapides, the plaintiff had filed suit in state court against the
Georgia Board of Regents, raising a federal due process claim under
§ 1983 and state law claims under the Georgia Tort Claims Act. The
defendant removed the case to federal court based on federal question
jurisdiction arising out of the § 1983 claim; at the same time,
defendant filed a Rule 12(b)(6) motion to dismiss based on, among
other reasons, the defendant's Eleventh Amendment immunity from
suit. . . .
The Supreme Court granted certiorari and held that the federal claim
should be dismissed, but concluded that the State had waived any
Eleventh Amendment immunity on the state-law claims when it
removed the case to federal court. . . .
[T]he Court noted that, given its dismissal of the federal claim, its
answer on the waiver question was “limited ... to the context of
state-law claims, in respect to which the State has explicitly waived
immunity from state-court proceedings.” The Supreme Court’s
answer to that “limited” question was a direct one: when a State has
waived its own immunity in state court as to certain state-law claims,
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it cannot undo that waiver merely by removing to federal court and
seeking to use the Eleventh Amendment to do its work for it. In other
words, but for its decision to remove the case to federal court, which
removal was only made possible by the fortuitous inclusion of a
federal claim in a complaint also containing a state-law claim, the
State would have been forced to litigate the state-law claim in state
court on the merits; there was no state immunity for this claim. . . .
Anderson II, 822 F. Supp. 2d at 1354-55 (alterations adopted, internal citations
omitted).
The Lapides holding was narrow. “Because (1) the only remaining claim in
the case was a state law claim and (2) Georgia had waived its immunity-based
objection to suit in its own courts, the Court limited its holding to ‘state-law
claims, in respect to which the State has explicitly waived immunity from statecourt proceedings.’” Stroud v. McIntosh, 722 F.3d 1294, 1299-1300 (11th Cir.
2013) (quoting Lapides, 535 U.S. at 617. “Moreover, the opinion declined to
‘address the scope of waiver by removal in a situation where the State’s underlying
sovereign immunity from suit has not been waived or abrogated in state court.’”
Id. (quoting Lapides, 535 U.S. at 617).
Because the Supreme Court’s reasoning in Lapides was broad but its holding
was narrow, courts have wrestled with its effect on cases in which a state’s
underlying sovereign immunity from suit was not waived or abrogated in state
court. See id. “Six Circuits that have expressly considered the question have

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concluded that a state defendant’s voluntary removal of a private suit to federal
court does not by itself waive the state’s general immunity from such a suit.”
Beaulieu v. Vermont, 807 F.3d 478, 487-88 (2d Cir. 2015) (citing cases). In
Stroud, the Eleventh Circuit joined other circuits, including the Third and Fifth
Circuits, in holding that, where a state removes a case to federal court, it waives its
immunity-based objection to a federal forum, but may retain other aspects of
sovereign immunity, including its immunity from liability for certain claims.2
Stroud, 722 F.3d at 1301, 1303. In other words, when a state removes a case to
federal court, it voluntarily invokes the jurisdiction of federal courts and waives its
Eleventh Amendment immunity from suit in federal court. Whether the state
retains its separate immunity from liability as to a particular claim, however, is a
separate issue, determined according to the state’s law. See Meyers ex rel.
2

The Eleventh Circuit in Stroud interpreted opinions of the Seventh, Ninth,
and Tenth Circuits as “read[ing] Lapides’s broad reasoning to establish the general
rule that a state’s removal to federal court constitutes a waiver of immunity,
regardless of what a state waived in its own courts.” Stroud, 722 F.3d at 1301
(citing cases). In Beaulieu, the Second Circuit found that these Circuits “adhere to
the generally accepted proposition that a state defendant's removal of an action to
federal court waives the state's objection, based on the Eleventh Amendment, to
the exercise of federal jurisdiction, but do not subscribe to the proposition
advocated by Plaintiffs that by such removal the defendants also waive the state's
general sovereign immunity.” 807 F.3d at 488. Regardless whether there is a split
of authority among the circuits as to the question at hand, the Eleventh Circuit’s
holding in Stroud is binding here.

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Benzing v. Texas, 410 F.3d 236, 254 (5th Cir. 2005). “These principles have been
applied in numerous cases.” Barrett v. Mississippi Dep’t of Pub. Safety, No.
3:11CV185TSL-JMR, 2013 WL 4015094, at *3-4 (S.D. Miss. Aug. 6, 2013)
(citing cases).
Thus, the question here is whether Georgia retained its sovereign immunity
from liability as to claims brought under the self-care provisions of the FMLA.
The Court finds it has. Article I of the Georgia Constitution extends sovereign
immunity to the state and all of its departments and agencies. Ga. Const. art. I,
§ II, ¶ IX(e). The immunity can only be waived by an Act of the Georgia
legislature that specifically provides for and describes the extent of the waiver. Ga.
Const. art. I, § II, ¶ IX(e). Any waiver must be established by the party seeking to
benefit from the waiver. McCobb v. Clayton Cty., 710 S.E.2d 207 (Ga. Ct. App.
2011). There are two Georgia statutes that specifically waive sovereign immunity,
neither of which applies to a claim under the self-care provisions of the FMLA.
See Wells v. W. Ga. Tech. Coll., No. 1:11-cv-3422-JEC, 2012 WL 3150819, at *2
(N.D. Ga. Aug. 2, 2012) (explaining that Georgia has waived sovereign immunity
only under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20, et seq., and for
actions arising from the state’s breach of a written contract, neither of which apply
to a claim under the self-care provisions of the FMLA).

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Because the Georgia legislature has not waived immunity for Plaintiff’s
FMLA claim, GDOT, as an arm of the State, retains immunity with respect to the
claim despite GDOT’s removal of this case to federal court. See Stroud, 722 F.3d
at 1301. Accordingly, GDOT’s Objections are sustained, and the Court grants
GDOT’s Motion to Dismiss Plaintiff’s FMLA claim.
2.

Unobjected-to Portions of the R&R

Because no party objects to the remainder of the R&R, the Court reviews the
remainder of the R&R for plain error. See Slay, 714 F.2d at 1095.
Defendant seeks dismissal of Plaintiff’s Title VII and ADA claims, because
Plaintiff did not file her Complaint within ninety days of her receipt of the Right to
Sue Letters. “Under Title VII, in cases where the EEOC does not file suit or obtain
a conciliation agreement, the EEOC ‘shall so notify the person aggrieved and
within 90 days after the giving of such notice a civil action may be brought against
the respondent named in the charge . . . by the person claiming to be
aggrieved. . . .’” Zillyette v. Capital One Fin. Corp., 179 F.3d 1337, 1339 (11th
Cir. 1999) (quoting 42 U.S.C. § 2000e-5(f)(1)). “The ADA provides the same
statute of limitations, as it expressly incorporates the enforcement mechanisms
contained in Title VII, 42 U.S.C. § 2000e-5.” Miller v. Georgia, 223 F. App’x
842, 844 (citing 42 U.S.C. § 12117(a)).

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The Magistrate Judge found that the “undisputed record before the court
establishes that Plaintiff received the Right to Sue Letters . . . on or about August
10, 2014[,]” but that she did not file her lawsuit until September 12, 2016, almost
two years after the expiration of the 90-day period within which she was required
to file her Complaint. (R&R at 16-17). Accordingly, the Magistrate Judge
recommends the Court grant Defendant’s Motion to Dismiss Plaintiff’s Title VII
and ADA claims. The Court finds no plain error in these findings and
recommendation, and Defendant’s Motion to Dismiss is granted with respect to
Plaintiff’s Title VII and ADA claims. See Slay, 714 F.2d at 1095.
The Magistrate Judge next found that Plaintiff’s EPA claims are barred by
the two-year statute of limitations. An EPA action is time-barred “unless
commenced within two years after the cause of action accrued . . . .” 29 U.S.C.
§ 255(a). Plaintiff alleges that the time period for her EPA cause of action
commenced on March 27, 2013, and continued until May 6, 2013. The Magistrate
Judge found that the two-year statute of limitations expired on May 6, 2015, over a
year before Plaintiff filed her Complaint. The Magistrate Judge also found that
Plaintiff did not allege any facts to support a claim under the EPA. Accordingly,
the Magistrate Judge recommends the Court grant Defendant’s Motion to Dismiss

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Plaintiff’s EPA claim. The Court finds no plain error in these findings and
recommendation. See Slay, 714 F.2d at 1095.
Finally, the Magistrate Judge found that Plaintiff did not allege that she
exhausted her FEPA administrative remedies. Georgia law “requires a [FEPA]
plaintiff to file a complaint with an administrator who then determines whether
reasonable cause exists to support an unlawful employment practice
claim. . . . ‘The filing of suit in court occurs only after the aggrieved individual has
proceeded through the administrative framework. . . .’” Owens v. Pineland Mental
Health, Mental Retardation & Substance Abuse Servs., No. CV 211-196, 2012 WL
2887007, at *2 (S.D. Ga. July 13, 2012) (quoting Solomon v. Hardison, 746 F.2d
699, 740 (11th Cir. 1984)). Because Plaintiff did not allege that she exhausted her
FEPA administrative remedies, the Magistrate Judge recommends that the Court
grant Defendant’s Motion to Dismiss Plaintiff’s FEPA claims. The Court finds no
plain error in these findings and recommendation. See Slay, 714 F.2d at 1095.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Janet F. King’s

Non-Final Report and Recommendation [9] is ADOPTED AS MODIFIED.

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IT IS FURTHER ORDERED that GDOT’s Objections to the R&R [11]
are SUSTAINED.
IT IS FURTHER ORDERED that GDOT’s Motion to Dismiss [3] is
GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED WITH
PREJUDICE.

SO ORDERED this 19th day of April, 2017.

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