Aque v. Home Depot U.S.A., Inc., Civil Action No. 1:08-CV-0581-BBM.

• Decision Date: 02 February 2009
• Docket Number: Civil Action No. 1:08-CV-0581-BBM.
• Parties: Lesa AQUE, Plaintiff, v. HOME DEPOT U.S.A., INC.; Tim Hourigan; and Sarah Longacre, Defendants.
• Court: U.S. District Court — Northern District of Georgia

629 F.Supp.2d 1336

Lesa AQUE, Plaintiff, v. HOME DEPOT U.S.A., INC.; Tim Hourigan; and Sarah Longacre, Defendants.

Civil Action No. 1:08-CV-0581-BBM.

United States District Court, N.D. Georgia, Atlanta Division.

February 2, 2009.

Matthew C. Billips, Billips & Benjamin, LLP, Decatur, GA, for Plaintiff.

Carmen Alexander Butler, Tracey T. Barbaree, Alpana Kastoori Gupta, Ashe Rafuse & Hill, Atlanta, GA, for Defendants.

ORDER

BEVERLY B. MARTIN, District Judge.

This case is before the court on the Report and Recommendation of the Magistrate Judge (the "R & R") [Doc. No. 32]. The R & R recommends that the court grant the Motion to Dismiss and for Partial Judgment on the Pleadings [Doc. No. 8] filed by Defendants Home Depot U.S.A., Inc. ("Home Depot" or "the Company"), Tim Hourigan ("Mr. Hourigan") and Sarah Longacre ("Ms. Longacre") (collectively "Defendants"). The R & R also recommends that the court deny the Motion to Amend Complaint [Doc. No. 14] filed by Plaintiff Lesa Aque ("Ms. Aque"). Ms. Aque has filed Objections to the R & R [Doc. No. 36], which the court considers on a de novo basis.

I. Factual and Procedural Background

Ms. Aque has not specifically objected to the Magistrate Judge's recitation of the facts. The court has reviewed the Magistrate Judge's description of the facts under the clear error standard and finds none. Therefore, the court adopts those facts as stated in the R & R.¹ The following is a summary of the most relevant facts.

Ms. Aque is a white female who has Multiple Sclerosis ("MS"). From 1997-2007, Ms. Aque was an employee of Home Depot. In April 2004, she was promoted to the position of Associate Merchant in the Home Depot Merchandising Department. At this time her supervisor was William Haas ("Mr. Haas"), Global Product Merchant and leader of the Special Orders team. In July 2004, Sonny Markanda became a Product Merchant and Ms. Aque's direct supervisor. However, Mr. Haas remained the leader of the Special Orders team, of which Ms. Aque was a member.

In August 2005, Ms. Aque began a medical leave of absence because of her MS condition and a malignant tumor. When she returned to work in October 2005, Home Depot informed Ms. Aque that due to a restructuring she needed to reapply for her position. She thereafter complained to Home Depot officials, including those in the Human Resources ("HR") Department, that this was a violation of the Family and Medical Leave Act ("FMLA"). Approximately one month later, Ms. Aque again complained to HR officials on the same grounds. Shortly thereafter, she was assigned to the same Associate Merchant position in a different department.

In January 2006, Susan Lada ("Ms. Lada"), also a Product Merchant, became Ms. Aque's new supervisor. Ms. Lada subsequently proceeded to make comments about Ms. Aque's engagement to "a black man," and referenced Ms. Aque's clothing taste as "ghetto." (Compl. ¶¶ 25-26.) Ms. Lada also criticized Ms. Aque's absences from work, required her to work on several vacation and sick days, and indicated that Ms. Aque would have received higher performance evaluation scores had she not been sick and taken medical leave. In response, Ms. Aque complained to the Home Depot HR Department about Ms. Lada, and described the racially derogatory statements as well as those made about Ms. Aque's health.

On March 14, 2006, Mr. Haas filed suit against Home Depot, claiming age and race discrimination and retaliation. On October 18, 2006, Ms. Aque testified at a deposition in Mr. Haas's case pursuant to a subpoena she had received. During this deposition Ms. Aque testified to facts supporting Mr. Haas's claims, also stating that Home Depot had, discriminated against her, on the bases of her race and disability. Shortly thereafter, Ms. Lada was deposed and learned of the contents of Ms. Aque's earlier testimony. As a result, Ms. Lada treated Ms. Aque "with greater disdain than ever, declining to speak to her or even to greet her when encountering her at the store." (Id. ¶ 36.)

From December 12, 2006 to January 24, 2007, the Haas litigation was stayed pending mediation. Discovery in that case resumed January 24, 2007. On or about February 23, 2007, Ms. Aque received a letter from Home Depot informing her that her current position was to be included in a permanent layoff taking effect on or about April 27, 2007. Ms. Aque was also told that she could apply for other positions within the Company. However, despite having submitted applications for other positions, and following up numerous times, she did not receive a single interview. Additionally, the only other employee in Ms. Aque's department who was not asked to interview for a position was Mr. Haas. Ms. Aque complained about her employment situation to both Mr. Hourigan (the Vice President for Human Resources with Home Depot), and Ms. Longacre (a Human Resources employee with Home Depot). Despite assurances from each that the issue would be researched, and that Ms. Aque would receive an interview, she was never granted an interview for a different position at the Company. On or about March 29, 2007, Ms. Aque was required to turn in her computer, badge, and other Company property, and she was ultimately terminated from Home Depot.

Ms. Aque filed a charge of discrimination with the Equal Employment Opportunity Commission on April 19, 2007, and subsequently received a notice of her right to sue. On January 11, 2008, Ms. Aque filed suit in the Superior Court of Fulton County against Home Depot, Mr. Hourigan, and Ms. Longacre. On February 22, 2008, Defendants removed the case to this court. Ms. Aque claims that she was discriminated against by Defendants on the basis of her race and disability, in retaliation for testifying in federal court about the Company's alleged discrimination against herself and Mr. Haas, and to deter her from further participation in the Haas litigation as a witness. The Complaint alleges violations of 42 U.S.C. §§ 1981, 1985, and 1986; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.; the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.; and the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq.

Defendants subsequently filed a Motion to Dismiss the Title VII, ADA, and ADEA claims against Mr. Hourigan and Ms. Longacre, as well as to dismiss the § 1985 and § 1986 claims in their entirety. Ms. Aque thereafter filed a Motion to Amend her Complaint in order to address the issues in Defendants' Motion. In the R & R, the Magistrate Judge recommended that the Defendants' Motion to Dismiss and for Partial Judgment on the Pleadings be granted, and that Ms. Aque's Motion to Amend Complaint be denied. The Magistrate Judge pointed out that Title VII, the ADA, and the ADEA prohibit a finding of individual liability. The Magistrate Judge found that Ms. Aque had not sufficiently alleged a deterrence claim under § 1985(2), and that the retaliation claim under the same section was barred by the intracorporate conspiracy doctrine. Because Ms. Aque's § 1986 claim is derivative of her § 1985 claim, the R & R recommended that the § 1986 claim be dismissed as well. Finally, because Ms. Aque's Motion to Amend Complaint was filed in response to the issues raised in Defendants' Motion to Dismiss, the R & R recommended denial of Ms. Aque's Motion to Amend. Ms. Aque timely filed an Objection to the R & R on January 8, 2009.

Ms. Aque makes four objections: (1) she asserts that she has sufficiently pled a violation of 42 U.S.C. § 1985(2) by alleging a criminal deterrence conspiracy; (2) she asserts that she has likewise sufficiently pled a violation of 42 U.S.C. § 1985(2) by alleging a retaliatory conspiracy not barred by the intracorporate conspiracy doctrine; (3) because her claims under 42 U.S.C. § 1985(2) are sufficiently alleged, her dependent claims under 42 U.S.C. § 1986 must survive; and (4) the conspiracy claims in the case continue to be viable and therefore the Motion to Amend the Complaint is not rendered moot and should be granted.

II. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a court may grant a motion to dismiss when a complaint fails to state a claim upon which relief can be granted. To withstand a motion to dismiss, a complaint need not contain "detailed factual allegations," but must "`give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Here, the court must determine whether Plaintiff "has alleged enough facts to suggest, raise a reasonable expectation of, and render plausible" her claims. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1296 (11th Cir.2007). The court construes the Complaint in Plaintiffs favor, and accepts the facts she alleges as true. M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153, 1156 (11th Cir.2006). However, "a formulaic recitation of the elements of a cause of action will not do." Twombly, 127 S.Ct. at 1964-65. Thus, a wholly conclusory statement of a claim cannot, without more, survive a motion to dismiss. See Weissman v. Nat'l Ass'n of Sec. Dealers, Inc., 500 F.3d 1293, 1303 (11th Cir.2007) (citing Twombly, 127 S.Ct. at 1968).

III. Analysis

Ms. Aque has made four objections to the R & R. After careful consideration of Ms. Aque's objections, the court will adopt in part and reject in part the Magistrate Judge's rulings.

A. Title VII, ADA, & ADEA Claims Against Individual Defendants

As previously noted, the Magistrate Judge found that the Title VII, ADA, and ADEA claims against Mr. Hourigan and Ms. Longacre should be dismissed because each of the three statutes prohibits a finding of individual liability. Ms. Aque has not taken issue with this finding. "Title VII, the ADA, and the Age Discrimination...