Quach v. Paragon Sys. Inc.

• Decision Date: 26 February 2016
• Docket Number: CIVIL ACTION FILE NO. 1:15-cv-00750-RWS-RGV
• Parties: SAM QUACH, Plaintiff, v. PARAGON SYSTEMS INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

SAM QUACH, Plaintiff, v. PARAGON SYSTEMS INC., Defendant.

CIVIL ACTION FILE NO. 1:15-cv-00750-RWS-RGV

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

February 26, 2016

ORDER FOR SERVICE OF SUPPLEMENTAL REPORT AND RECOMMENDATION

The Report and Recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1), FED. R. CIV. P. 72(b), N.D. Ga. R. 72.1(B), (D), and Standing Order 14-01 (N.D. Ga. Aug. 15, 2014), has been filed. The Clerk is DIRECTED to serve upon counsel for the parties and directly upon any unrepresented parties a copy of the Report and Recommendation and a copy of this Order.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within fourteen (14) days of service of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to any transcripts if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the District Court, and on appeal, the Court of Appeals will deem waived any challenge to factual and legal findings to which there was no objection, subject to interests-of-justice plain error review. 11th Cir. R. 3-1.

The Clerk is DIRECTED to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.

IT IS SO ORDERED, this 26th day of February, 2016.

/s/_________

RUSSELL G. VINEYARD

UNITED STATES MAGISTRATE JUDGE

MAGISTRATE JUDGE'S SUPPLEMENTAL REPORT AND RECOMMENDATION

Plaintiff Sam Quach ("plaintiff") has filed an amended motion to amend his complaint, [Doc. 18],¹ to which defendant Paragon Systems, Inc. ("defendant") has responded, [Doc. 21], and plaintiff has replied, [Doc. 22]. For the reasons that follow, it is RECOMMENDED that plaintiff's amended motion to amend his complaint, [Doc. 18], be GRANTED IN PART and DENIED IN PART.

I. FACTUAL AND PROCEDURAL BACKGROUND²

Plaintiff began his employment with defendant as a security guard in 2012. [Doc. 18-1 at 3 ¶ 7; Doc. 1 at 3 ¶ 7]. Plaintiff alleges that on January 6, 2014, hecomplained to defendant that he was being subjected to a "hostile work environment," [Doc. 18-1 at 4 ¶ 17; Doc. 1 at 4 ¶ 17], and "[b]ecause of [] [p]laintiff's complaint of illegal discrimination, on or about January 7, 2014, [] [d]efendant [] arbitrarily and for no legitimate reason transferred [] [p]laintiff to another work location and changed [] [p]laintiff's work hours to place more demands upon him and in an otherwise adverse manner," [Doc. 18-1 at 4-5 ¶ 18]; see also [Doc. 1 at 4 ¶ 18].

While at his security post on February 3, 2015, plaintiff needed to use the restroom, and he called a rover guard to temporarily relieve him. [Doc. 18-1 at 3 ¶ 10; Doc. 1 at 3 ¶ 10]. After the rover guard arrived, she began speaking with another security guard near plaintiff's post, and plaintiff then "became unable physically to perform at the post without going to the restroom, and, therefore, hurriedly proceeded to advance towards the restroom." [Doc. 18-1 at 3-4 ¶¶ 11-13]; see also [Doc. 1 at 3-4 ¶¶ 11-13]. Defendant terminated plaintiff on February 4, 2015, for abandoning his post. [Doc. 18-1 at 3 ¶¶ 8-9; Doc. 1 at 3 ¶¶ 8-9].

On March 12, 2015, plaintiff brought this action against defendant, alleging claims of race and color discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and 42 U.S.C. § 1981 ("§ 1981"). See [Doc. 1]. Defendant filed a motion to dismiss plaintiff's complaint, [Doc. 3], and the undersigned issued a Report and Recommendation("R&R") that defendant's motion to dismiss be granted in its entirety, [Doc. 15]. Plaintiff has since filed an amended motion to amend his complaint, [Doc. 18], which defendant opposes, [Doc. 21], and plaintiff has filed a reply in support of his motion to amend. [Doc. 22]. The amended motion to amend plaintiff's complaint has been referred to the undersigned, [Doc. 23], and it is now ripe for ruling.

II. DISCUSSION

Plaintiff moves to amend his complaint to "clarify his claims of discrimination and retaliation made against the [d]efendant] concerning workplace reprisal and disparate treatment concerning the same operative facts[.]" [Doc. 18 at 1-2]. Plaintiff seeks to add that he is an "Asian citizen of the United States of Chinese national origin who[se] physical characteristics of his eyes, hair, and skin color were perceived by his employer as non-white ethnic characteristics." [Doc. 18-1 at 2 ¶ 2]; see also [id. at 3 ¶ 7 (stating he is "an Asian male of Chinese ancestry")]. Plaintiff also seeks to add the following factual allegation: "Plaintiff did not abandon his post or violate work orders, and the reason given by the employer for terminating him was a pretext for intentional illegal discrimination based upon this Asian race, lighter color, reprisal, and his non white physical ethnic characteristics of his Chinese national origin." [Id. at 4 ¶ 16]. Finally, plaintiff seeks to supplement the allegations of his original complaint with the following additional factual allegations:

On or about January 6, 2014, the [p]laintiff made a complaint alleging that the [d]efendant/employer's state Program Manager was subjecting him to a hostile work environment by discriminating against him by not allowing him to stay at his same work location and change his schedule as such Program Manager allowed [p]laintiff's less senior counterparts.

Because of [p]laintiff's complaints of illegal discrimination, on or about January 6, 2014, for no legitimate reason, the [d]efendant's state Program Manager threatened to transfer the [p]laintiff to a work location which would substantially increase his work commute resulting in [p]laintiff's inability to perform his duties in the workplace in the same manner as other security guard employees employed by the [d]efendant who ha[d] not made such a complaint.

By changing the [p]laintiff's hours and work locations more adversely and terminating his employment for reasons which were not legitimate and not applied to his counterparts of a non-Asian race, darker color, race, and not having non-white physical characteristics based upon his Chinese ancestry and national origin, the [p]laintiff was denied the same terms, conditions, and privileges of employment as his counterparts of a different race, color, and/or without such non-white physical ethnic characteristics of Chinese ancestry or national origin.

Defendant created intolerable and illegal working conditions for the [p]laintiff and for no legitimate reason terminated his employment based upon a[n] alleged standard that [p]laintiff is not allowed to take a restroom emergency break when he calls for a Work Rover who appears to relieve him on his post, while not applying the same standards to or terminating for similar conduct his African-American and Caucasian Security [G]uard counterparts who worked for the [d]efendant/employer, his darker complexioned Security Guard counterparts who worked for the [d]efendant/employer, and his non-white Security [G]uard counterparts who worked for the [d]efendant who were without physical ethnic characteristics of Chinese ancestry or national origin.

The [d]efendant employer provided more favorable terms, privileges, and conditions of employment to [p]laintiff's counterparts of a differentcolor, race, and ancestry or physical ethnic characteristic by terminating him based upon the alleged reason that [p]laintiff abandoned his post or failed to follow work orders, while not applying the same standards to or terminating his African American and Caucasian counterparts, his darker complexioned counterparts, and his counterparts without non-white physical ethnic characteristics of Chinese ancestry or national origin who failed to follow the same or similar work place rule which the [d]efendant contends [p]laintiff violated and resulted in his employment termination: namely, abandoning his post and failing to follow work orders.

[Id. at 4 ¶ 17, 5 ¶ 20, 6-7 ¶¶ 22-24]. Plaintiff contends that these factual allegations in his amended complaint "set[] forth a more detailed account of the facts upon which his claims are based." [Doc. 22 at 2].

"[C]onsistent with Rule 15(a)'s mandate that 'leave shall be freely given when justice so requires,' district courts should generously allow amendments even when the plaintiff does not have the right to amend the complaint." Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282, 1292 n.6 (11th Cir. 2007) (citations omitted) (quoting Fed. R. Civ. P. 15(a)). That is, "[a] district court should not deny leave to amend 'unless there is a substantial reason.'" Whitby v. Chertoff, Civil Action No. 5:08-CV-242 (HL), 2010 WL 431974, at *1 (M.D. Ga. Feb. 2, 2010) (quoting Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir. 1999)). Substantial reasons for denying plaintiff leave to amend his complaint include: "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposingparty by virtue of allowance of the amendment, [and] futility of amendment." Reese v. Herbert, 527 F.3d 1253, 1263 (11th Cir. 2008) (alteration in original) (citation and internal marks omitted); Andrx Pharm., Inc., v. Elan Corp., PLC, 421 F.3d 1227, 1236 (11th Cir. 2005) (citation omitted); Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dep't of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1287 (11th Cir. 2003) (citation and internal marks omitted) ("[A] motion to amend may be denied on numerous grounds...