Jackson v. Norfolk Southern Railway Company

Filing 40

OPINION & ORDER: Having reviewed the record de novo, the Court OVERRULES Defendant's objections (Dkt. 39 ) and ADOPTS the Magistrate Judge's Report and Recommendation (Dkt. 37 ). The Court GRANTS IN PART and DENIES IN PART Defendant's Motion to Dismiss (Dkt. 31 ). Plaintiff's second amended complaint is dismissed with the exception of her FMLA claims. Signed by Judge Michael L. Brown on 9/7/2021. (tmf)

Case 1:20-cv-00859-MLB-AJB Document 40 Filed 09/07/21 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Davida Jackson,
Plaintiff,
Case No. 1:20-cv-859-MLB
v.
Norfolk Southern Railway
Company,
Defendant.
________________________________/
OPINION & ORDER
Plaintiff Davida Jackson sued her former employer, Defendant
Norfolk Southern Railway Company, asserting four claims: (1) due
process violations; (2) breach of contract and violation of Defendant’s
FMLA policy; (3) age and race discrimination; and (4) intentional
infliction of emotional distress (“IIED”). (Dkt. 18-1.) Defendant moved
to dismiss.

(Dkt. 31.)

The Magistrate Judge issued a Report and

Recommendation (“R&R”), saying Defendant’s motion be granted in part
and denied in part. (Dkt. 37.) Plaintiff filed no objections, but Defendant
objected to the partial denial of its motion. (Dkt. 39.) After conducting a

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de novo review of the portions of the R&R to which Defendant specifically
objects and a plain error review of the rest, the Court overrules
Defendant’s objections and adopts the R&R in its entirety.
I.

Background
Plaintiff (a white female) worked as an accountant in Defendant’s

Waybill Processing Department since August 31, 1999. (Dkt. 18-1 ¶ 11.)
Angela Fields (a white female) and Greg Ausborn (a white male) were,
respectively, her immediate supervisor and department manager. (Id.
¶ 12.)

On May 12, 2017, Defendant received Plaintiff’s request for

intermittent FMLA leave for health conditions. (Id. ¶ 13.) The terms of
the leave stipulated one day per doctor appointment every four to six
months. (Id.) The certified leave period ran from May 1, 2017 through
April 30, 2018. (Id.) On August 11, 2017, Plaintiff reported to work at
6:00 a.m. before realizing she had a doctor’s appointment at 9:30 a.m.
that same morning. (Id. ¶ 14.) She contacted Ms. Fields via email and
requested FMLA leave for the appointment. (Id.) Ms. Fields approved
the request, and Plaintiff left work at 9:00 a.m. (Id.) After that, Ms.
Fields contacted the Norfolk Police Department to requested Police

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Investigator D. J. Hill follow Plaintiff and videotape her activity. (Id.
¶ 15.)
On August 25, 2017, Mr. Ausborn confronted Plaintiff while she
was with several co-workers, told her to get her personal items and leave
the building, and explained she was being “dismissed from all service at
Norfolk Southern Railway Company” for failing to comply with a June 5,
2017 letter regarding FMLA and for engaging in conduct unbecoming of
an employee. (Id. ¶ 16.) He further said Plaintiff had “marked off” work
under false pretenses by making an untruthful statement in an email
sent on August 11, 2017 requesting leave to attend a doctor’s
appointment. (Id.) At the same time, Mr. Ausborn gave Plaintiff a letter
dated August 25, 2017 which provided the same basis for dismissal. (Id.
¶ 17.) At that time, Plaintiff had not yet received the June 5, 2017 letter
alluded to by Defendant and did not know what it said. (Id.)
On August 28, 2017, Plaintiff requested a grievance hearing to
challenge the termination as unfair, unlawful, and contrary to the facts.
(Id. ¶ 18.)

Mr. Ausborn received the request and scheduled an “on

property” hearing for September 5, 2017. (Id. ¶ 19.) The notice of hearing
alleged Plaintiff lied about having a doctor’s appointment and failed to

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comply with the provision of the June 5, 2017 letter (which Plaintiff still
had not receive).

(Id. ¶ 20.)

Kelli Bates, Director of Defendant’s

Customer Accounting Department, presided over the hearing. (Id. ¶ 21.)
Defendant’s witnesses were Mr. Ausborn and his assistant, Danielle
Lewis. (Id.) No discovery was conducted, and Defendant’s entire case
was based on Mr. Ausborn’s recount of a hearsay declaration by Police
Investigator J.D. Hill. (Id. ¶ 23.) On January 27, 2020, Plaintiff received
a letter containing the final decision of the Railway Arbitration Panel
denying her relief. (Id. ¶ 5.) Plaintiff filed no EEOC complaint. (Id. ¶ 6.)
Plaintiff sued asserting four claims: (1) due process violations;
(2) breach of contract and violation of Defendant’s FMLA policy; (3) age
and race discrimination; and (4) IIED. (Id. ¶¶ 24–74.) Defendant moved
to dismiss. (Dkt. 31.) The Magistrate Judge issued an R&R, saying all
Plaintiff’s claims should be dismissed except her FMLA claim. (Dkt. 37.)
II.

Standard of Review
The district court must “conduct[] a plain error review of the

portions of the R&R to which neither party offers specific objections and
a de novo review of the Magistrate Judge’s findings to which [a party]
specifically objects.” United States v. McIntosh, No. 1:18-cr-00431, 2019

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WL 7184540, at *3 (N.D. Ga. Dec. 26, 2019); accord 28 U.S.C. § 636(b)(1)
(“[T]he court shall make a de novo determination of those portions of the
[R&R] to which objection is made.”); United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983) (per curiam) (explaining that plain error review is
appropriate in absence of objection).

“Parties filing objections to a

magistrate’s [R&R] must specifically identify those findings objected to.
Frivolous, conclusive, or general objections need not be considered by the
district court.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988).
After conducting the required review, “the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1).
III. Discussion
A.

Due Process

Plaintiff alleges Defendant violated her due process rights (as
provided in a Collective Bargaining Agreement) when it terminated her
for failing to comply with the “mark off” provisions of an unsigned letter
and for lying about a doctor’s appointment. (Dkt. 18-1 ¶¶ 25–27.) She
alleges she challenged her termination and expected a fair and impartial
hearing, but Defendant presented no witnesses who testified based on

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personal knowledge. (Id. ¶¶ 28–32.) The Magistrate Judge recommends
dismissing Plaintiff’s due process claim because Plaintiff failed to allege
Defendant is a government actor and because any allegations related to
violations of the Collective Bargaining Agreement (“CBA”) are preempted
by the Railway Labor Act (“RLA”). (Dkt. 37 at 16–18.)
The Court finds no plain error in this recommendation because
Defendant is a private corporation, Plaintiff complains about Defendant’s
unfair conduct at a private hearing, and due process protections apply
only against government actors. See Davis v. Prudential Sec., Inc., 59
F.3d 1186, 1190 (11th Cir. 1995) (“[I]t is axiomatic that constitutional due
process protections ‘do not extend to private conduct abridging individual
rights.’” (citing Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179,
191 (1988)); see also Etkind v. Suarez, 519 S.E.2d 210, 214 (Ga. 1999)
(“[T]he Due Process Clause of the Georgia Constitution . . . only protects
Georgia citizens against state action, and does not affect the conduct of
other private individuals.”); Geddes v. Am. Airlines, Inc., 321 F.3d 1349,
1351 (11th Cir. 2003) (“The RLA establishes a mandatory framework for
the resolution of ‘minor disputes’ over the interpretation of collective
bargaining agreements” and reserves their adjudication solely to boards

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of adjustment); Kozy v. Wings W. Airline, Inc., No. C-94-1678, 1995 WL
32915, at *3 (N.D. Cal. Jan. 25, 1995) (stating there “is no question that
these causes of action are considered ‘minor disputes’ under the RLA”),
aff’d and remanded Kozy v. Wings W. Airlines, Inc., 89 F.3d 635 (9th Cir.
1996).
B.

Breach of Contract and FMLA Violation

In her second count, Plaintiff alleges her unlawful termination
constituted a breach of the CBA and a violation of Defendant’s FMLA
policy. (Dkt. 18-1 ¶¶ 33–46.) Plaintiff claims she requested FMLA leave
for the 9:30 a.m. doctor’s appointment and that her supervisor approved
the leave without asking when she would return to work. (Id. ¶¶ 36–37.)
She contends she never received any warning from Defendant for prior
mark-off times. (Id. ¶¶ 39, 44.) The Magistrate Judge recommends
dismissing Plaintiff’s breach of CBA claim, but allowing her FMLA claim
to survive. (Dkt. 37 at 18–20.) The Court finds no plain error in the
conclusion Plaintiff’s CBA claim should be dismissed because—as
Magistrate Judge Baverman concluded—any such claim is preempted by
the RLA. See Geddes, 31 F.3d at 1351; Kozy, 1995 WL 32915, at *3. As
to the survival of Plaintiff’s FMLA claim, Defendant objects, contending

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no FMLA cause of action was pled. (Dkt. 39 at 1.) Defendant argues
count two mentions Plaintiff was approved for FMLA leave, but centers
on the circumstances of her termination and apparent lack of due process
in the aftermath of her termination. (Id. at 2.) Defendant contends the
complaint does not put it on notice of the legal basis or facts that support
either an interference or a retaliation claim under the FMLA. (Id.)
A civil complaint filed in federal court must contain “a short and
plain statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a)(2).

“Under well-settled Supreme Court

precedent, this means that ‘a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its
face.’” Estate of Bass v. Regions Bank, Inc., 947 F.3d 1352, 1358 (11th
Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Because
the Federal Rules embody the concept of liberalized ‘notice pleading,’ a
complaint need contain only a statement calculated to ‘give the defendant
fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.’” United States v. Baxter Intern., Inc., 345 F.3d 866, 881 (11th Cir.
2003) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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Plaintiff’s second count is titled “Plaintiff’s unlawful termination by
Defendant’s [sic] constituted a breach of the CBA and a violation of
Norfolk Southern FMLA Policy and Procedure as outlined in Norfolk
Southern Corporation’s FMLA fact sheet for agreement employees.”
(Dkt. 18-1 at 10.) In count two, Plaintiff cites Defendant’s fact sheet for
the allegation that “FMLA is enforced, including investigation of
complaints, by the U.S. Labor Department’s Employment Standards
Administration, Wage and Hour Division. . . . An eligible employee
may . . . bring a private civil action against an employer for violations.”
(Dkt. 18-1 ¶ 35.) Plaintiff alleges on the morning of August 11, 2017, she
realized she had a doctor’s appointment and notified her immediate
supervisor who approved the request. (Id. ¶¶ 36–37.) Plaintiff again
cites Defendant’s fact sheet for the allegation that “[i]t is unlawful for an
employer, to DISCHARGE or DISCRIMINATE against an individual for
opposing any practice, or because of involvement in any proceeding,
related to FMLA.” (Id. ¶ 38.) Plaintiff alleges Defendant’s action in
terminating her was in breach of the CBA as well as the standards set
forth in the Department of Labor, Wage, and Hour Division. (Id. ¶ 45.)
While Plaintiff never cites the FMLA statute, she specifically alleges

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Defendants breached the CBA and the Department of Labor, Wage, and
Hour standards.

(Id.)

Throughout count two, Plaintiff repeatedly

mentions the FMLA, yet Defendant never addresses the FMLA in its
motion to dismiss. (Compare Dkt. 18-1 ¶¶ 35, 38, 46, with Dkt. 31.)
While Plaintiff’s FMLA claim is not entirely clear from her complaint, the
complaint sufficiently puts Defendant on notice of Plaintiff’s FMLA claim
and the supporting facts.
“[T]he

FMLA

prohibits

employers

from

interfering

with,

restraining, or denying ‘the exercise of or the attempt to exercise’ any
rights guaranteed under the Act.” McCarroll v. Somerby of Mobile, LLC,
595 F. App’x 897, 900 (11th Cir. 2014) (quoting 29 U.S.C. § 2615(a)(1)).
The Eleventh Circuit has recognized two types of claims under the
FMLA. First, the FMLA “protects employees against interference with
the exercise or attempted exercise of their substantive rights under the
statute.” Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1247 (11th
Cir. 2015). “To state a claim of interference, the employee must allege
[s]he was entitled to a benefit under the FMLA and was denied that
benefit.” Id. Second, an employee may assert a claim for retaliation—an
allegation that the “employer discriminated against [the employee]

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because [s]he engaged in an activity protected by the [FMLA].” Pereda
v. Brookdale Senior Living Cmtys., Inc., 666 F.3d 1269, 1272 (11th Cir.
2012).

Plaintiff alleges she sought and received intermittent FMLA

leave, she tried to use that leave to attend a doctor’s appointment, and
she was wrongfully terminated based on using the leave.
articulated an FMLA claim.

Plaintiff

The Court thus overrules Defendant’s

objection and adopts the R&R.
C.

Discrimination

In her third count, Plaintiff alleges she was unlawfully terminated
as pretext to cover Defendant’s illegal motive of race and age
discrimination.

(Dkt. 18-1 ¶¶ 47–68.)

Plaintiff alleges she had

outstanding accomplishments as an employee but was denied a position
because she did not have a college education. (Id. ¶ 49.) She alleges
Defendant’s stated reason for firing her (lying about a doctor’s
appointment) was pretext to cover Defendant’s illegal age discrimination.
(Id. ¶ 51.) Plaintiff also alleges she was racially discriminated against
because she was dating a black man. (Id. ¶ 54.) She contends her
meeting her black fiancée for lunch, as witnessed by an investigator,
“triggered rage and urgency” for her termination.

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(Id. ¶ 63.)

The

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Magistrate Judge recommends dismissing Plaintiff’s discrimination
claim for lack of EEOC exhaustion. (Dkt. 37 at 20–23.) The Court finds
no plain error because Plaintiff admits she never filed a charge of
discrimination with the EEOC. See Wilkerson v. Grinnell Corp., 270 F.3d
1314, 1317 (11th Cir. 2001) (administrative exhaustion is required for
Title VII claims); Rizo v. Ala. Dep’t of Hum. Res., 228 F. App’x 832, 835
(11th Cir. 2007) (per curiam) (administrative exhaustion is required for
ADEA claims). The requirements for administrative exhaustion include
filing a charge of discrimination with the EEOC within 180 days of the
alleged discriminatory employment practice. Rizo, 228 F. App’x at 835.
Plaintiff admits she did not file a charge of discrimination with the
EEOC but claims her 180-day time period was equitably tolled. “The
general test for equitable tolling requires the party seeking tolling to
prove (1) that [she] has been pursuing [her] rights diligently, and (2) that
some extraordinary circumstance stood in [her] way and prevented
timely filing.” Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 972
(11th Cir. 2016). This means equitable tolling can apply to toll “Title
VII’s statute of limitations period until the date a plaintiff ‘knew or
reasonably should have known that she was being discriminated

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against.’” Thomas v. Bed Bath & Beyond, Inc., 508 F. Supp. 2d 1264,
1277 (N.D. Ga. 2007) (quoting Carter v. West Pub. Co., 225 F.3d 1258,
1265 (11th Cir. 2000)). Plaintiff, relying on Reeb v. Economic Opportunity
Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975), alleges her obligation to file
an EEOC charge was not triggered because she had no reason to believe
unlawful discrimination occurred. (Dkt. 18-1 ¶ 6.) But Reeb “involved
active deception by the employer.” Villarreal, 839 F.3d at 958. Because
Plaintiff does not allege Defendant actively misled her, she must meet
the general test—diligence and extraordinary circumstances. Id.
Plaintiff included Title VII and ADEA claims in her complaint, thus
becoming aware of the alleged discrimination before filing suit. Yet
Plaintiff does not explain why she failed to file an EEOC charge at that
point. The complaint also alleges acts of discrimination while Plaintiff
was employed with Defendant. (Dkt. 18-1 ¶¶ 55 (alleging that in 2016
her manager berated her and said her doctor was not bona fide because
he was black), 50 (alleging that in 2016 one of Defendant’s employees told
a union representative that “we need to get rid of some of these old
people”).)

These facts would indicate to a person with a reasonably

prudent regard to her rights that her allegedly wrongful termination was

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discriminatory. See Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023, 1025
(11th Cir. 1994) (the timely filing period “does not start to run until the
facts which would support a charge of discrimination are apparent or
should be apparent to a person with a reasonably prudent regard for his
rights”). The Court sees no error in the Magistrate Judge’s conclusion
Plaintiffs Title VII and ADEA discrimination claims are subject to
dismissal for lack of exhaustion.
D.

Intentional Infliction of Emotional Distress

In her final count, Plaintiff alleges an IIED claim because of her
wrongful termination “without cause” and by “falsely accusing her of
lying and failing to comply with an unsigned letter.” (Dkt. 18-1 ¶¶ 69–
74.) She contends Defendant’s actions were strictly pretext, she was
terminated in a humiliating way and escorted out of the building, and
Defendant’s acts and omissions were intentional, malicious, and in
reckless disregard of her emotions. (Id. ¶¶ 71–73.) She alleges as a result
of Defendant’s extreme and outrageous conduct, she needed to seek
medical attention.

(Id. ¶ 74.)

The Magistrate Judge recommends

dismissal because the conduct was not extreme or outrageous enough and
the statute of limitations has run. (Dkt. 37 at 23–25.) The Court finds

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no plain error because Plaintiff’s allegations fail as a matter of law. See
Peoples v. Guthrie, 404 S.E.2d 442, 444 (Ga. Ct. App. 1991) (a “false
accusation of dishonestly or lack of integrity in connection with one’s
employment conduct” cannot establish a claim for IIED); Clark v. Coats
& Clark, Inc., 990 F.2d 1217, 1229 (11th Cir. 1993) (holding that an
employee’s termination, without warning and after 38 years of
employment, might have been harsh and unkind but was not outrageous
enough to support a claim for IIED); Scott v. Rite Aid of Ga., Inc., 918 F.
Supp. 2d 1292, 1304–05 (M.D. Ga. 2013) (“The law is clearly established
that IIED claims under Georgia law are subject to a two-year statute of
limitations.”).
IV.

Conclusion
Having reviewed the record de novo, the Court OVERRULES

Defendant’s objections (Dkt. 39) and ADOPTS the Magistrate Judge’s
Report and Recommendation (Dkt. 37). The Court GRANTS IN PART
and DENIES IN PART Defendant’s Motion to Dismiss (Dkt. 31).
Plaintiff's second amended complaint is dismissed with the exception of
her FMLA claims.

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SO ORDERED this 7th day of September, 2021.

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