Jackson v. Norfolk S. Ry. Co.
| Decision Date | 07 September 2021 |
| Docket Number | 1:20-cv-859-MLB |
| Parties | Davida Jackson, Plaintiff, v. Norfolk Southern Railway Company, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
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 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.
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 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 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.)
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 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) (). 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).
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 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) (); Kozy v. Wings W. Airline, Inc., No. C-94-1678, 1995 WL 32915, at *3 (N.D. Cal. Jan. 25, 1995) (), aff'd and Kozy v. Wings W. Airlines, Inc., 89 F.3d 635 (9th Cir. 1996).
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 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)).
Plaintiff's second count is titled “Plaintiff's unlawful termination by Defend...
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