Johnson v. Fulton County, Georgia et al

Filing 27

OPINION and ORDER ADOPTING the Magistrate Judge's 23 Non-Final Report and Recommendation. The Defendants' 14 Motion to Dismiss for Failure to State a Claim is hereby GRANTED IN PART AND DENIED IN PART and Defendant Kathleen Toomey is TERMINATED as a party in this action. Signed by Judge Amy Totenberg on 5/23/2018. (sap)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KENNETH JOHNSON,

:
:
Plaintiff,
:
:
v.
:
:
FULTON COUNTY, GEORGIA, RUBY :
HARDY, and KATHLEEN TOOMEY, :
:
Defendants.
:

CIVIL ACTION NO.
1:17-CV-3921-AT-WEJ

ORDER
This matter is before the Court on the Magistrate Judge’s Report and
Recommendation [Doc. 23] that Defendants’ Motion to Dismiss [Doc. 14] be
granted in part and denied in part.
The Magistrate Judge recommends as follows: (1) that Plaintiff’s claim of
retaliation under Title VII in Count One be dismissed for failure to state a claim 1;
(2) that Plaintiff’s Title VII discriminatory discharge claim based on allegations
of sex discrimination in Count Two be dismissed 2; (3) that Plaintiff’s Title VII
discriminatory terms and conditions of employment claim alleged in Count Two
be allowed to proceed; (4) that Defendants’ motion to dismiss Plaintiff’s hostile

1 The Magistrate Judge noted that if evidence of a causal connection between Plaintiff’s alleged
protected activity and the adverse action came to light during discovery, Plaintiff would be
granted leave to amend the Complaint to reassert a retaliation claim.
2 The Magistrate Judge noted that if discovery reveals evidence of a discriminatory animus
based on Plaintiff’s failure to conform to gender stereotypes, Plaintiff would be granted leave to
amend the Complaint to reassert the gender discrimination claim.

work environment claim in Count Three be denied; (5) that Plaintiff’s Equal
Protection Claim against Defendants Hardy and Toomey in Count Four be
dismissed; (6) that Plaintiff’s Section 1983 claims against Defendant Toomey be
dismissed on the basis of qualified immunity; (7) that Plaintiff’s First
Amendment claim in Count Five should be dismissed as to Defendant Toomey,
but shall be allowed to proceed as to Defendant Hardy.
No objections have been filed in response to the Magistrate Judge’s Report
and Recommendation. Therefore, in accordance with 28 U.S.C. § 636(b)(1) and
Rule 72 of the Federal Rules of Civil Procedure, the Court has reviewed the
Magistrate Judge’s Recommendation for clear error and finds none. Accordingly,
the Court ADOPTS the Magistrate Judge’s Report and Recommendation as the
opinion of the Court. For the reasons stated in Magistrate Judge’s Report and
Recommendation, Defendants’ Motion to Dismiss [Doc. 14] is GRANTED IN
PART and DENIED IN PART as set forth in the R&R.
IT IS SO ORDERED this 23rd day of May, 2018.
_____________________________
Amy Totenberg
United States District Judge

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