Opinion
CIVIL ACTION NO. 1:19-cv-04623-AT
2021-03-30
Catherine SLATER, Plaintiff, v. MCKINSEY & COMPANY, INC. UNITED STATES, Defendant.
Mari Lynn Myer, The Myer Law Firm, Decatur, GA, for Plaintiff. Susan Wallis Pangborn, Leah Marie Farmer, Noelle A. Abastillas, Kilpatrick Townsend & Stockton, LLP, Atlanta, GA, for Defendant.
Mari Lynn Myer, The Myer Law Firm, Decatur, GA, for Plaintiff.
Susan Wallis Pangborn, Leah Marie Farmer, Noelle A. Abastillas, Kilpatrick Townsend & Stockton, LLP, Atlanta, GA, for Defendant.
ORDER
AMY TOTENBERG, UNITED STATES DISTRICT JUDGE This matter is before the Court on the Magistrate Judge's Report and Recommendation ["R&R," Doc. 41] which recommends granting Defendant's Motion to Dismiss Counts I–V of Plaintiff's First Amended Complaint (Doc. 29.). For the following reasons, the R&R is adopted in part.
I. BACKGROUND
A. Alleged Facts
In late July 2016, following completion of her Master's in Business Administration at Harvard Business School, Plaintiff, Catherine Slater ("Plaintiff" or "Slater"), became an employee of the Defendant, McKinsey & Company, Inc. ("Defendant" or "McKinsey"). (Amended Complaint, Doc. 17 at 1.) McKinsey is "in the business of providing a variety of consulting services for clients worldwide." (Id. at 4.)
Slater also previously worked as an intern at McKinsey in 2015, following her first year of business school. (Amended Complaint, Doc. 17 at 5.)
Plaintiff alleges that "[d]uring 2016 and the first half of 2017, [she] received positive feedback from McKinsey personnel who supervised her on projects." (Doc. 17 at 6.) Plaintiff alleges that in July 2017, she "raised concerns within McKinsey about a situation in which a client was likely to be overbilled for some duplicative work. As a result, the McKinsey partner in charge of the project that Ms. Slater had raised concerns about became angry with her and complained about her performance to other high-level McKinsey personnel." (Id. at 7.) Slater also alleges later in her Amended Complaint that when she raised this issue, the partner stated "during his angry tirade.... that the situation would have been different had she been a man ...." (Id. at 27.) Although she previously had no problem finding new assignments to work on, Plaintiff alleges that after the partner became angry at her, she "began having difficulty receiving new project assignments." (Id. at 7. )
Plaintiff also alleges in connection with her sex discrimination claim that is not the subject of the Defendant's Motion to Dismiss, "[o]n multiple occasions during her employment with McKinsey, employees who were senior to Plaintiff warned Plaintiff that she was too outspoken and aggressive. She was told that women were not supposed to be aggressive at McKinsey. She was told that she was getting a reputation for being too outspoken, and that this was a problem for women at McKinsey." (Doc. 17 at 27.)
In September 2017, Plaintiff alleges that McKinsey warned her that she was "at risk of being counseled to leave McKinsey if she was unable to find projects on which to be staffed." (Id. ) Plaintiff alleges that "counseled to leave" is a turn of phrase that means "termination on the basis of unsatisfactory performance." (Id. ) That same month, Plaintiff alleges that she was assigned to a project with tight deadlines that would require long hours in a stressful environment. (Doc. 17 at 7.) Plaintiff alleges that she was concerned about the stress of this project, but felt that she had no choice but to accept it "in light of McKinsey's threat to counsel her to leave." (Id. )
In her personal life, Plaintiff alleges that she had been attempting to become pregnant during the Summer of 2017. (Id. at 8.) She also alleges that she "had previously disclosed to McKinsey that she had certain serious medical conditions [and that] some McKinsey personnel were aware that [she] was attempting to become pregnant." (Id. ) She also alleges that McKinsey had been aware of her liver condition since hiring her as a full-time associate. (Id. at 31.) Plaintiff alleges that because of her medical conditions, her physicians had advised her to limit her work schedule and to avoid the "grueling schedule to which McKinsey sometimes expects its junior personnel to submit." (Id. ) Plaintiff alleges that her treating physicians also "instructed her to reduce or avoid stress in order to both manage her other medical issues and improve her odds of being able to become pregnant and carry the baby to term." (Id. )
Plaintiff alleges that on or around September 15, 2017, she learned that she was pregnant. (Id. ) A few days later, on September 19, 2017, Plaintiff alleges that McKinsey ordered her to complete some deliverables associated with the time-sensitive project by the morning of September 21, 2017. (Doc. 17 at 9.) Plaintiff alleges that on September 20, 2017 she realized it was not possible for her to complete the deliverables unless she worked overnight. (Id. ) Plaintiff alleges that, due to concern about her pregnancy and other health issues, she "requested that McKinsey afford her additional time to complete the project deliverables[,]" and that she explained "that her health could not handle overnight work." (Id. ) Plaintiff alleges that her supervisor responded and ordered her to work overnight to complete the deliverables. (Id. ) Plaintiff continued to work through the night and did complete the deliverables on time. (Id. )
Plaintiffs alleges that even though she worked through the night and timely completed the project, she "was subsequently chastised by her staffing manager, Katy O'Shea, for having asked to be relieved from working overnight. Ms. O'Shea warned Ms. Slater that she must never again refuse to work overnight when instructed to do so." (Id. at 10.)
Plaintiff alleges that she "miscarried her baby a few days after working overnight." (Id. ) Plaintiff alleges that a few weeks later, on November 3, 2017, McKinsey told her "that she was being counseled to leave effective January 12, 2018." (Id. )
Plaintiff alleges that the "counseled to leave" designation and delayed termination date allow her to continue to hold herself out to the public as a "current" employee of McKinsey while she searched for a new job. (Id. at 10–11.) This designation also allegedly permitted Plaintiff,
to receive the bonus for which all then-current McKinsey personnel were eligible on December 1, 2017; health insurance, fertility treatments, and other employee benefits for 90 days beyond January 12, 2018; access to the password-controlled McKinsey Transitions Website and online McKinsey Alumni Center; secretarial staff for her job search; and other outplacement assistance, all at McKinsey's expense.
(Doc. 17 at 11.)
Four days later, on November 7, 2017, Plaintiff alleges that her termination was recharacterized as "a termination for cause[.]" (Id. ) Accordingly, with this change, Plaintiff lost access to all of the benefits mentioned above. (Id. ) Furthermore, Plaintiff alleges that "[b]ecause McKinsey characterized [her] termination as one for cause, [she] has lost her TS/SCI security clearance" and is unlikely to be able to regain that clearance. (Id. ) Plaintiff alleges in the Amended Complaint that she had held a TS/SCI security clearance continuously from 2010 until 2017, because her previous employment in the government and aerospace sector required it. (Doc. 17 at 3–4.)
TS/SCI is an acronym for Top Secret/Sensitive Compartmentalized Information. https://handbook.tts.gsa.gov/top-secret/ (last visited on March 26, 2021).
Plaintiff alleges that after being terminated by McKinsey she has applied for "several positions for which she was qualified" but that she was rejected for many of these positions. (Id. at 12.) Plaintiff further alleges that because she lost her security clearance, she cannot return to work in the aerospace industry. (Id. ) Plaintiff alleges that "[p]rospective employers that rejected her told her that McKinsey had told the employers that they should not hire her." (Id. ) As a result, Plaintiff alleges that she "has been forced to seek employment that is not commensurate with her skills, education, and experience." (Doc. 17 at 13.)
Plaintiff alleges that she "holds multiple degrees, including a PhD in electrical engineering from Purdue University and a Master's in Business Administration from Harvard Business School." (Doc. 17 at 3.)
B. Procedural History
On April 1, 2020, Plaintiff filed her Amended Complaint, alleging nine counts relating to her time as an employee of the Defendant:
Count I – Intentional Infliction of Emotional Distress
Count II – Negligent Infliction of Emotional Distress
Count III – Tortious Interference with Employment Opportunities
Count IV – Tortious Interference with Security Clearance
Count V – Breach of Contract
Count VI – Title VII Discrimination on the Basis of Sex
Count VII – Failure to Accommodate Disability in Violation of the Americans with Disabilities Act
Count VIII – Retaliation in Violation of Title VII
Count IX – Retaliation in Violation of the Americans with Disabilities Act
(Amended Complaint, Doc. 17.)
On June 26, 2020, Defendant moved to dismiss Counts I–V only of the Amended Complaint. (Motion to Dismiss, Doc. 29.) Plaintiff Responded in opposition and Defendant Replied in support. (Docs. 31, 35.)
On December 9, 2020, the Magistrate Judge issued a Report and Recommendation ("R&R") recommending that this Court grant the Motion to Dismiss Counts I–V. (R&R, Doc. 41.) The Plaintiff filed Objections to some aspects of the R&R, the Defendant Responded to those Objections, and the Plaintiff Replied in support of her own Objections. (Docs. 43, 44, 45.)
II. STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1), the Court reviews the Magistrate's Report and Recommendation for clear error if no party objects and may "accept, reject, or modify" the Magistrate's findings and recommendations. 28 U.S.C. § 636(b)(1). Where the parties do not file any objections, § 636 does not require the district court to review any issue in dispute de novo; however, the statute "does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard." Thomas v. Arn , 474 U.S. 140, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). On the other hand, if a party does file objections, the district court must determine de novo any part of the Magistrate Judge's disposition that is the subject of a proper objection. Fed. R. Civ. P. 72(b) ; 28 U.S.C. § 636(b).
Plaintiff filed timely objections to the Magistrate Judge's R&R. Accordingly, the Court reviews the issues raised in these portions of the R&R de novo. This matter was before the Magistrate Judge on a Motion to Dismiss. This Court may dismiss a pleading for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A pleading fails to state a claim if it does not contain allegations that support recovery under any recognizable legal theory. 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1216 (3d ed. 2002) ; see also Ashcroft v. Iqbal , 556 U.S. 662, 677–78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the non-movant's favor and accepts the allegations of facts therein as true. See Duke v. Cleland , 5 F.3d 1399, 1402 (11th Cir. 1993). The pleader need not have provided "detailed factual allegations" to survive dismissal, but the "obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In essence, the pleading "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ).
The Court reviewed the rest of the Magistrate Judge's R&R for clear error and found none.
The Court must construe the pleadings of a complaint broadly and in the light most favorable to the plaintiff in reviewing a motion to dismiss. Watts v. Florida Int'l Univ. , 495 F.3d 1289, 1295 (11th Cir. 2007). Although a plaintiff is not required to provide "detailed factual allegations" to survive a motion to dismiss, the "obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "While courts must liberally construe and accept as true allegations of fact in the complaint and inferences reasonably deductive there from, they need not accept factual claims that are internally inconsistent; facts which run counter to facts of which the court can take judicial notice; conclusory allegations; unwarranted deductions; or mere legal conclusions asserted by a party." Sterling v. Provident Life & Accident Ins. Co. , 519 F. Supp. 2d 1195, 1209 (M.D. Fla. 2007) (quoting Frenck v. Corr. Corp. of Am. , No. 8:06-cv-1534-T-17EAJ, 2006 WL 3147656 (M.D. Fla. Nov. 1, 2006) ); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2002) ("The court will not accept conclusory allegations concerning the legal effect of the events the plaintiff has set out if these allegations do not reasonably follow from the pleader's description of what happened, or if these allegations are contradicted by the description itself."); Scott v. O'Grady , 975 F.2d 366, 368 (7th Cir. 1992) ("[Courts] are not obliged to ignore any facts in the complaint that undermine the plaintiff's claim.").
III. OBJECTIONS AND DISCUSSION
The first five counts in Plaintiff's Amended Complaint are for relief pursuant to Georgia State law. These are the only counts that the Defendant moved to dismiss. Plaintiff is not objecting to the R&R as it pertains to Count V. (Doc. 43 at 6, n. 1.) Having reviewed the portion of the R&R pertaining to Count V for clear error and having found none, the Court ADOPTS the R&R as to Count V. Count V is DISMISSED .
Plaintiff does object to the R&R's proposed findings as to Counts I–IV. The Court discusses these counts below.
A. Counts I & II
Counts I and II assert claims for intentional and negligent infliction of emotional distress, respectively. The R&R recommends dismissing both counts as barred by the Georgia Workers' Compensation Act ("GWCA"), as set forth in O.C.G.A. § 34-9-11(a). Plaintiff objects to this, arguing that the "question of whether a miscarriage of a baby satisfies the definition of ‘injury’ under O.C.G.A. § 34-9-1(4), such that the Workers' Compensation Bar to tort claims against an employer set forth at O.C.G.A. § 34-9-11(a) would apply, appears to be one of first impression in Georgia." (Objections, Doc. 43 at 8.) Plaintiff argues as well that the analysis in the R&R relating to Counts I and II "is not supported by the most recent Georgia appellate caselaw," and should therefore be overruled. (Id. )
Georgia Workers' Compensation Act
"The Workers' Compensation Act in Georgia is intended to have broad application so as to cover a wide variety of injuries and the pain and suffering incident to such injuries." Ray Bell Const. Co. v. King , 281 Ga. 853, 854, 642 S.E.2d 841, 843 (2007) (quoting Hennly v. Richardson , 264 Ga. 355–356 (1), 444 S.E.2d 317 (1994) ).
Workers' compensation is the exclusive remedy for injuries arising out of and in the course of employment. OCGA § 34–9–11. "The words ‘arising out of’ mean that there must be some causal connection between the conditions under which the employee worked and the injury which she received. The causative danger must be incidental to the character of the employment, and not independent of the relation of master and servant. The injuries, however, need not arise from something peculiar to the employment but the injury is compensable if after the event it is apparent to the rational mind that there is a causal connection between the conditions under which the employment was performed and the resulting injury." (Punctuation omitted.) Macy's South v. Clark , 215 Ga. App. 661, 662–663 (1), 452 S.E.2d 530 (1994). Furthermore, "[t]he legislature has expressly codified its intent that the Act be liberally construed to bring both employers and employees within the act. [ OCGA § 34–9–23.]" Doss v. Food Lion , 267 Ga. 312 (1), 477 S.E.2d 577 (1996).
Boulware v. Quiktrip Corp. , 226 Ga. App. 399, 399, 486 S.E.2d 662, 663 (1997) ; see also Davis v. Louisiana-Pac. Corp. , 344 Ga. App. 757, 758, 811 S.E. 2d 476, 478 (2018) (the Georgia Workers' Compensation Act "provides the exclusive remedy to an employee injured by accident arising out of and in the course of the employment.") (quoting Johnson v. Hames Contracting , 208 Ga. App. 664, 667 (4) (a), 431 S.E. 2d 455 (1993) ); and O.C.G.A. § 34-9-1 (4) (defining "injury"). "[W]hether injuries are compensable under the Act is not determinative of whether the exclusivity provision is applicable." Betts v. Medcross Imaging Ctr., Inc. , 246 Ga. App. 873, 874, 542 S.E.2d 611, 614 (2000) (citing Boulware v. Quiktrip Corp. , 226 Ga. App. 399, 400, 486 S.E.2d 662 (1997) ). Whether a claim is barred by the exclusivity provision of the GWCA is a question of law. Boulware v. Quiktrip Corp. , 226 Ga. App. 399, 399, 486 S.E.2d 662, 663 (1997) (citing Bishop v. Mangal Bhai Enterprises , 194 Ga. App. 874 (1), 392 S.E.2d 535 (1990) ).
The Parties dispute the applicability of the Georgia Workers' Compensation Act ("GWCA") and whether provisions within the GWCA bar Plaintiff's claims for emotional distress. The GWCA provides the exclusive remedy for injured employees who are covered by the terms of the GWCA. O.C.G.A. § 34-9-11(a). For an injury to be covered by the Act, two prerequisites must be satisfied: the employee's injury must (a) occur in the course of employment, and (b) arise out of the employment. O.C.G.A. § 34-9-1 ; Mayor & Aldermen of Savannah v. Stevens , 278 Ga. 166, 166, 598 S.E.2d 456, 457 (2004) ("The test [for compensation under the Act] presents two independent and distinct criteria, and an injury is not compensable unless it satisfies both."). In the Mayor & Aldermen case, the Supreme Court of Georgia clarified the two prongs:
An injury arises in the course of certain employment if the employee is engaged in that employment at the time the injury occurs. ...
An injury arises out of certain employment when it results from exposure occasioned by the nature of the employment, or where there is a " ‘causal connection between the conditions under which the work is required to be performed and the resulting injury.’ " An injury does not arise out of the employment if it was caused by a " ‘hazard to which the work[er] would have been equally exposed apart from the employment.’ " Where the injury does not " ‘arise out of’ the employment, the [Workers' Compensation] Act is not applicable regardless whether the injury ... occurred ‘in the course’ of the employment."
278 Ga. at 166, 598 S.E.2d at 457–58 (footnotes and citations omitted) (citing SCI Liquidating Corp. v. Hartford Ins. Co. , 272 Ga. 293, 294, 526 S.E.2d 555 (2000) ; and New Amsterdam Cas. Co. v. Sumrell , 30 Ga. App. 682, 688, 118 S.E. 786 (1923) ); see also Blair v. Georgia Baptist Children's Home & Fam. Ministries, Inc. , 189 Ga. App. 579, 581, 377 S.E.2d 21, 23 (1988) ("The words ‘in the course of employment’ relate to the time, place, and circumstances under which the incident takes place, and if the incident occurs within the period of employment, at a place where the employee may reasonably be in the performance of her duties or engaged in doing something incidental thereto, the employee is within ‘the course of employment.’ ") (quoting Barge v. City of College Park , 148 Ga. App. 480, 481, 251 S.E.2d 580 (1978) ). This analysis was embraced by the Supreme Court of Georgia again as recently as 2020, where it wrote, "[a]n injury arises ‘in the course of’ employment when it ‘occurs within the period of the employment, at a place where the employee may be in performance of her duties and while she is fulfilling or doing something incidental to those duties.’ " Frett v. State Farm Emp. Workers' Comp. , 309 Ga. 44, 46, 844 S.E.2d 749, 752 (2020) (quoting Hennly v. Richardson , 264 Ga. 355, 356 (1), 444 S.E.2d 317 (1994) ); see also Potts v. UAP-Ga. Ag. Chem., Inc. , 270 Ga. 14, 15, 506 S.E.2d 101 (1998) ("[In the course of employment] relates to the time, place and circumstances under which the injury takes place.").
While Plaintiff does not dispute that her miscarriage "arose out of" her employment, she says that "she has never alleged that she miscarried her baby at McKinsey's offices while she was actively working" and therefore her injury cannot be said to have arisen "in the course of employment." (Objections, Doc. 43 at 10 (citing Savannah Hospitality Services v. Scriven , 350 Ga. App. 195, 198, 828 S.E. 2d 423 (2019) ; and Frett v. State Farm , 309 Ga. 44, 844 S.E.2d 749 (2020) ).)
The R&R addressed this argument by saying that, " ‘[w]here the duties of the employment call for a quantity and quality of exertion which actually contribute as an immediate precipitating factor to the injury,’ the injury falls under the Act, ‘regardless of whether [it occurs] on or off the actual physical premises of the employer.’ " (R&R, Doc. 41 at 6 (quoting Maryland Cas. Co. v. Dixon , 83 Ga. App. 172, 174, 63 S.E.2d 272, 274 (1951) ).) The R&R further observed that,
Ordinarily, it would become "a question of fact" as to whether there is evidence demonstrating that the stress at work was "the immediate precipitating cause" of Plaintiff's injury. But Plaintiff is caught in a Catch-22. If the miscarriage
occurred because of the stress Plaintiff endured at work, then the injury falls under the Act regardless of when or where it occurred. For the injury to fall outside the Act, Plaintiff would need to show it was not caused by the stress she endured at work, which is the exact opposite of what Plaintiff alleges.
(R&R, Doc. 41 at 7 (internal citations omitted) (citing Maryland Cas. Co. , 83 Ga. App. at 174, 63 S.E.2d 272 ; and U.S. Asbestos v. Hammock , 140 Ga. App. 378, 378–79, 231 S.E.2d 792, 794 (1976) (holding that the employee's injury was an aggravation of an earlier injury which arose in the course of his employment, even though his disability occurred "several years after [he] last worked for the [employer]," because the ongoing and dusty plant employment conditions "caused or greatly contributed to" the ultimate injury and total disability)).)
Plaintiff is correct that whether the miscarriage of a baby is an injury arising out of and in the course of employment such that the GWCA's exclusivity provisions would apply appears to be a question of first impression in Georgia. (Objections, Doc. 43 at 8.) Indeed, neither "miscarriage" nor any corollary term appears anywhere within the GWCA nor the body of case law relating to the GWCA. But the determination of whether a claim relating to an injury or medical condition is covered by the exclusivity provision of the GWCA, is not guided by the nature of the particular condition or the injury, so much as whether the injury or condition itself arguably arose out and in the course of the employment. Pursuant to Georgia case law and the plain language of the GWCA, "aggravation of a pre-existing condition is compensable even when the pre-existing condition is not work-related and unknown to the employee at the time." Savannah Hosp. Servs., LLC v. Scriven , 350 Ga. App. 195, 198, 828 S.E.2d 423, 426 (2019) (quoting Rheem Mfg. Co. v. Butts , 292 Ga. App. 523, 525, 664 S.E.2d 878 (2008) ); O.C.G.A. § 34-9-1(4) ("Except as otherwise provided in this chapter, ‘injury’ and ‘personal injury’ shall include the aggravation of a preexisting condition by accident arising out of and in the course of employment, but only for so long as the aggravation of the preexisting condition continues to be the cause of the disability; the preexisting condition shall no longer meet this criteria when the aggravation ceases to be the cause of the disability.").
The GWCA specifically excludes from its definition of "injury" several specific conditions unless they can be shown through medical evidence to be caused by the employment in question: "heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, stroke, or thrombosis [shall not be included in the definition of "injury"] unless it is shown by a preponderance of ... evidence ... that any of such conditions were attributable to the performance of the usual work of employment." O.C.G.A. § 34-9-1(4). This list of specific conditions notably does not include miscarriages, and Plaintiff has not alleged that her miscarriage occurred secondarily to one of these enumerated conditions. Whether a miscarriage could or should be included in this list of excepted positions is not a question before this Court; it is one that would have to be addressed by the Georgia Legislature. This specially crafted "heart attack" evidentiary-related provision was adopted by the legislature in amendments to the Workers Compensation code. See Sears, Roebuck & Co. v. Poole , 112 Ga.App. 527, 528, 145 S.E.2d 615, 617 (1965) (explaining that the legislature amended the code in 1963 "to provide that the terms ‘injury’ and ‘personal injury’ shall not include ‘heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, or thrombosis, unless it is shown by preponderance of competent and creditable evidence that it was attributable to the performance of the usual work of employment"); O.C.G.A. § 34-9-1(4) (Supp. 1996); see also Georgia State University Law Review, LABOR AND INDUSTRIAL RELATIONS Workers' Compensation: Refine the Definitions of Injury and Independent Contractor; Require the Use of Medical Evidence; Provide Exemptions for Limited Liability Corporations; Require Probate Courts to Appoint Guardians; Specify the Use of Guidelines in the Determination of Impairment , 13 Ga. St. U. L. Rev. 233, 234-35 (1996). (detailing HB 1291, the 1996 amendment to O.C.G.A. § 34-9-1 et seq. and noting the change to include "stroke" to the list of compensable injuries). Contrary to Plaintiff's argument, the Court has no authority to construe this provision to encompass conditions and circumstances that do not fall within the specific heart related diseases and events identified in this statutory provision. See O.C.G.A. § 34-1-23, relating to principles for construction of the Act's provisions ("This chapter shall be liberally construed only for the purpose of bringing employers and employees within the provisions of this chapter and to provide protection for both. This chapter is intended to provide a complete and exclusive system and procedure for the resolution of disputes between employers and employees who are subject to this chapter concerning accidents and injuries arising out of and in the course of employment as defined by this chapter. The provisions of this chapter shall be construed and applied impartially to both employers and employees."); see also England v. Beers Construction , 224 Ga.App. 44, 46–47, 479 S.E.2d 420, 423 (1996).
Plaintiff suffered from one or more serious preexisting medical conditions, including liver disease as well as a new pregnancy (also a medical condition). (Doc. 17 at 31-32.) In the Amended Complaint, Plaintiff alleges that "McKinsey's demand that Ms. Slater work overnight was the proximate cause of her miscarriage, a physical impact that resulted in severe emotional distress to Ms. Slater." (Doc. 17 at 14.) Specifically, Plaintiff alleges that when Defendant forced her to work overnight contrary to her doctor's advice (regarding her serious medical conditions that she had advised Defendants about), the overnight work impacted her health and in turn caused her miscarriage. (Id. at 13), ¶¶ 43–44; 14 at ¶46; see also Response to Motion to Dismiss, Doc. 31 at 15 ("Here, ... Ms. Slater contends that her injury – her miscarriage – occurred as a result of the strain on her body caused by her overnight work[.]") (emphasis supplied)).) In this broader context, Plaintiff's injuries may be viewed as an aggravation of her pre-existing conditions. Plaintiff argues that her injuries from these circumstances include both the miscarriage itself as well as the medical and ongoing traumatic emotional effects of having experienced the miscarriage. (Objections, Doc. 43 at 13.) Alternatively, independent of the aggravated injury analysis, Plaintiff's ultimate miscarriage injury might arguably also be viewed as falling within the scope of a covered injury under the GWCA, even though it occurred at a location other than her employment site a few days after she had been required to work all night. This is similarly because Plaintiff alleges that the all-night work placed strain on her body (i.e. , a physical impact requisite under controlling law) that in turn triggered her miscarriage and further medical treatment and emotional pain and suffering.
The Court of Appeals of Georgia has held that "to be compensable under the Act, the injury must be a physical injury or harm." Oliver v. Wal-Mart Stores, Inc. , 209 Ga. App. 703, 704, 434 S.E.2d 500, 501 (1993) (citing W.W. Fowler Oil Co. v. Hamby , 192 Ga. App. 422, 385 S.E.2d 106 (1989) ; Hanson Buick v. Chatham , 163 Ga. App. 127, 129, 292 S.E.2d 428 (1982) ); but see Betts v. Medcross Imaging Ctr., Inc. , 246 Ga. App. 873, 875, 542 S.E.2d 611, 613 (2000) (finding that where non-physical emotional injuries "stem solely from" concern about possible future injury, the claims are subject to the exclusivity provisions of the GWCA).
Whether or not the State Board of Workers' Compensation would ultimately determine that Plaintiff's injuries were in fact aggravated and compensable or independently viable is a separate question. But whether an injury is compensable under the GWCA is a separate concern from whether an injury is covered by the GWCA's exclusivity provision. Betts v. Medcross Imaging Ctr., Inc. , 246 Ga. App. 873, 874, 542 S.E.2d 611, 614 (2000) ("But whether injuries are compensable under the Act is not determinative of whether the exclusivity provision is applicable.")
Accordingly, even when read in the light most favorable to Plaintiff, the Court must find that at very least, Plaintiff's allegations bring her related state law emotional distress claims within the ambit of the exclusivity bar of the GWCA.
The Court therefore agrees with the R&R's view that Plaintiff's physical and related emotional injuries arose out of and in the course of her employment with McKinsey, although the Court applies a somewhat different legal analysis than that articulated by the R&R. Plaintiff's state law infliction of emotional claims in Counts I and II are therefore barred by the exclusivity bar provision of the GWCA. The Court takes care to note here that Plaintiff may still be entitled to potential recovery for emotional-based damages in relation to some of her federal claims. This ruling only finds that her state tort law-based claims for intentional and negligent infliction of emotional injury are barred by the exclusivity provisions of the GWCA. And the Court makes clear that its ruling here is limited to the specific factual circumstances and causation contentions alleged in the Plaintiff's Amended Complaint.
The Court OVERRULES Plaintiff's Objection and ADOPTS the R&R as to Counts I & II, subject to the modified reasoning set forth in this Order. The Motion to Dismiss is GRANTED as to Counts I & II.
B. Count III
Count III alleges tortious interference with employment opportunities. "The elements of a claim for tortious interference with employment include the existence of an employment relationship, interference by one who is a stranger to the relationship, and resulting damage to the employment relationship." Lee v. Gore , 221 Ga. App. 632, 634, 472 S.E.2d 164, 167 (1996) (citing Hylton v. American Assn., Inc. , 214 Ga. App. 635 (2), 448 S.E.2d 741 (1994) ). "In addition, it must be shown that the alleged intermeddler acted maliciously and without privilege." Id. (citing Phillips v. MacDougald , 219 Ga. App. 152, 155 (2, c), 464 S.E.2d 390 (1995) ; and Wilkinson v. Trust Co. of Ga. Assoc. , 128 Ga. App. 473, 475 (3), 197 S.E.2d 146 (1973) ); see also Feldman v. Am. Dawn, Inc. , 849 F.3d 1333, 1343 (11th Cir. 2017) (Under Georgia law, a claim of tortious interference with business relations requires "improper action or wrongful conduct by the defendant," while acting as a "stranger to the contract or business relation at issue.") (citing Mabra v. SF, Inc. , 316 Ga. App. 62, 728 S.E.2d 737, 739–40 (2012) ).
However, as noted in the R&R, "Plaintiff does not allege she had an actual contractual relationship with a third party that Defendant allegedly interfered with, and thus she asserts claims for tortious interference with business relations, not with contractual relations." (R&R, Doc. 41 at 8, n.2; cf. also Tidikis v. Network for Med. Commc'ns & Rsch. LLC , 274 Ga. App. 807, 812, 619 S.E.2d 481, 486 (2005) (Applying the same four-factor test to a claim for tortious interference with contractual relations or potential business relations)).)
The elements of tortious interference with potential business relations are: (1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant caused a third party to fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant's tortious conduct proximately caused damage to the plaintiff. Duke Galish, LLC v. Manton , 291 Ga. App. 827, 832, 662 S.E.2d 880 (2008). Furthermore, "in order to be liable for tortious interference, one must be a stranger to both the contract at issue and the business relationship giving rise to and underpinning the contract." Tidikis v. Network for Med. Commc'ns & Rsch. LLC , 274 Ga. App. 807, 812, 619 S.E.2d 481, 486 (2005)
The R&R recommends dismissal of Count III for several reasons, focusing first on Defendant's restriction of Plaintiff's use of the alumni database, and second on Defendant's alleged negative recommendation to potential employers of Plaintiff.
First, the R&R recommends that Plaintiff failed to state a claim for tortious interference with employment opportunities insofar as she made that claim relating to having access to McKinsey's alumni network database. Plaintiff did not allege in her Amended Complaint that McKinsey spread rumors about her among its alumni, for instance, but only that her access to the database was restricted. The R&R draws a distinction between these two scenarios, finding that the first would conceivably state a claim for tortious interference, but that the second cannot. The Magistrate Judge recommends that, because the database is the property of McKinsey, McKinsey cannot have tortiously interfered with access to the same. Second, the R&R says that any potential relationships that Plaintiff might have formed through the database "would necessarily have been ‘interwoven with, or derivative of,’ Plaintiff's relationship with McKinsey." (R&R, Doc. 41 at 10–11 (citing Feldman v. Am. Dawn, Inc. , 849 F.3d 1333, 1344 (11th Cir. 2017) ).) As such, according to the R&R, Defendant "would not be a ‘stranger’ to any such relationship, and thus cannot have tortiously interfered with Plaintiff forming new business relationships by denying her access to its own database and resources." (Doc. 41 at 11 (citing Feldman , at id. ).) Plaintiff objects to the R&R's findings relating to the alumni database, saying that her allegation is that restricting her access to the database was de facto a prohibition of her ability to access the individuals on the network within. Plaintiff says that she was "denied access to the individual alumni who use the database[,]" because some of those alumni exclusively interact through the database system. (Objections, Doc. 43 at 19.) Plaintiff asserts in her Objection that restricting her access to the database was done "for malicious reasons and in bad faith." (Id. at 19–20.)
Lastly, the R&R concludes that even though Plaintiff alleges that McKinsey told potential business employers of the Plaintiff that "they should not hire her," Plaintiff has failed to allege that this interference was through "improper action or wrongful conduct" and done "purposely and with malice with the intent to injure." (R&R, Doc. 41 at 11 (citing Duke Galish, LLC v. Manton , 291 Ga. App. 827, 832, 662 S.E.2d 880 (2008) ).) Plaintiff objects to this portion of the R&R's recommendation pointing to her allegation that McKinsey specifically told prospective employers not to hire her. (See Objections, Doc. 43 at 18; Amended Complaint, Doc. 17 at 12–13.) Plaintiff says that this allegation, combined with her allegation that such conduct was willful and in bad faith – and the other factual allegations in the Amended Complaint – is enough to state a claim for tortious interference with employment opportunities.
Defendant supports the R&R's conclusion, saying that "McKinsey's alumni database is a resource belonging to McKinsey, and McKinsey cannot tortiously interfere with the use of its own property." (Response, Doc. 44 at 11 (citing Dalton Diversified, Inc. v. AmSouth Bank , 270 Ga. App. 203, 209, 605 S.E.2d 892 (2004) ; Lake Tightsqueeze, Inc. v. Chrysler First Fin. Servs. Corp. , 210 Ga. App. 178, 181, 435 S.E.2d 486 (1993) ).) Defendant also pushes back on Plaintiff's Objection, saying that Plaintiff is now seeking in the Objection to recharacterize her allegation, but that ultimately whether Plaintiff is alleging harm due to restriction of access to the database or the people using it, Plaintiff fails to state a claim. (Id. at 11–12.) Defendant says "[c]ontrary to Plaintiff's Objection to the R&R, she has not lost the ability to contact whomever she wants from among McKinsey's alumni through other available channels." (Id. at 12.) In her Reply, Plaintiff reiterates her Objection, saying that through blocking Plaintiff's access to the alumni database, "McKinsey prevented Ms. Slater from taking advantage of opportunities and relationships reserved just for McKinsey alumni through the use of this database. " (Reply, Doc. 45 at 10 (emphasis in original).)
On review of the arguments presented, the Court agrees with the R&R as it relates to accessing the database. The database itself was the property of McKinsey, and therefore McKinsey could not have tortiously interfered with Plaintiff's access to it. Furthermore, although Plaintiff may have lost the relative advantage of accessing alums through the database – some alumni prefer this method of contact, according to the Amended Complaint – she was not prevented from contacting those persons through other means. Plaintiff was simply denied a competitive advantage in the marketplace. Her ability to access the persons who use the database was not restricted by McKinsey.
However, when it comes to Plaintiff's second allegation in Count III – that McKinsey actively told prospective employers not to hire Plaintiff – the Court disagrees with the analysis in the R&R. The R&R finds that Plaintiff's allegation fails to allege that Defendant engaged in any "wrongful" conduct, and does not allow the Court to infer "more than the mere possibility of misconduct[.]" (R&R, Doc. 41 at 12 (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ) (emphasis in original)).) The R&R also looks to the statutory presumption under Georgia law that an employer acts in "good faith" when communicating with prospective employers of a former employee. (R&R, Doc. 41 at 12 (citing O.C.G.A. § 34-1-4(b) ).) Plaintiff argues in her Objections that this presumption is only available to employers "when the information provided to a prospective employer is (1) factual and (2) provided in good faith. " (Objections, Doc. 43 at 20–21 (citing O.C.G.A. § 34-1-4(b) ).)
The statute in question says,
An employer as defined in subsection (a) of this Code section or any person employed by an employer and designated as the employer's representative who discloses factual information concerning an employee's or former employee's job performance, any act committed by such employee which would constitute a violation of the laws of this state if such act occurred in this state, or ability or lack of ability to carry out the duties of such job to a prospective employer of such employee or former employee upon request of the prospective employer or of the person seeking employment is presumed to be acting in good faith unless lack of good faith is shown by a preponderance of the evidence, unless the information was disclosed in violation of a nondisclosure agreement or the information disclosed was otherwise considered confidential according to applicable federal, state, or local statute, rule, or regulation.
O.C.G.A. 34-1-4(b). As specified in the statute, an employer may be afforded a presumption of good faith when they interact with a prospective employer about a former employee, when the former employer "discloses factual information concerning an employee's or former employee's job performance, any act committed by such employee which would constitute a violation of the laws of this state if such act occurred in this state, or ability or lack of ability to carry out the duties of such job[.]" (Id. ) However, this section also specifies that the presumption stands "unless lack of good faith is shown by a preponderance of the evidence [.]" (Id. (emphasis added).) There is a dearth of case law on the application of this particular statute, but by the plain meaning of this portion of the statute, the presumption is best considered at an evidentiary stage, and not at the pleading stage, as Plaintiff has yet to have an opportunity to present any evidence which might refute the presumption. Whether the presumption of good faith attaches and bars Plaintiff's Count III is more appropriately considered at the summary judgment or trial stage, when the Court has the benefit of a developed factual record.
As it stands now, Plaintiff has alleged that her termination was itself wrongful, unlawfully discriminatory, and done potentially in retaliation against her voicing concerns relating to overbilling a client and requesting a work schedule that did not include overnight assignments based on her medical condition. Plaintiff has also alleged that McKinsey specifically told prospective employers not to hire her. That is, she has not alleged that McKinsey told prospective employers facts about her work performance which would dissuade them from hiring her – she alleged that they flat out advised against hiring her. Lastly, Plaintiff alleges that, because of McKinsey's interference, she has been unable to obtain employment commensurate with her skills, education, and experience. (Amended Complaint, Doc. 17 at 13, 19.)
Thus, when reading the Amended Complaint in the light most favorable to Plaintiff, it states that McKinsey, without a defensible factual basis to do so, told prospective employers not to hire Plaintiff, and that Plaintiff suffered damages by way of the loss of employment opportunities. When read in the light most favorable to Plaintiff, the Defendant was a stranger to the prospective employers, as well. Furthermore, the Amended Complaint can be construed to say that this negative recommendation was the final extension of a long running process of retaliating against Plaintiff based on impermissible factors under federal law and for voicing concerns about overbilling and complaining about working conditions that would have been treated differently if she were a man. In this light, the Amended Complaint would otherwise sufficiently allege unlawful motivation to state a claim in Count III to tortious interference with business opportunities, except for the plain fact that Plaintiff never actually says the words "malice" or "without privilege." Although the Court may be able to infer these aspects from the nature and context of Plaintiff's other allegations and claims, as well as her objections and response brief, it is best practice for Plaintiff to formally make the allegations. If Plaintiff believes that she can allege in good faith that McKinsey acted with malice and without privilege with respect to this count, the Court will give her an opportunity to clarify and state so plainly in a Second Amended Complaint.
Accordingly, the Court SUSTAINS Plaintiff's Objection and DECLINES TO ADOPT the R&R in part as to Count III, as discussed herein. Accordingly, Defendant's Motion to Dismiss is GRANTED as to Plaintiff's claim in connection with access to the McKinsey alumni database. Subject to the conditions specified below, Defendant's Motion is DENIED as to Plaintiff's claim in Count III that Defendant tortiously interfered with Plaintiff's business opportunities through its employment recommendations. Plaintiff is DIRECTED to file an Amended Complaint in connection with Count III within 14 days of the date of this Order that in good faith specifies her allegations as to whether Defendant acted purposely and with malice with the intent to injure and further, acted without privilege. If and only if Plaintiff elects not to file or fails to file a Second Amended Complaint in conformity with this direction, the Court authorizes Defendant to file a motion to dismiss as to this claim within 10 days of Plaintiff's filing or decision not to file such an amended pleading by the due date. The Court cautions Defendant to avoid needless motion practice.
C. Count IV
Count IV alleges tortious interference with Plaintiff's security clearance. The R&R recommends dismissal, because Plaintiff failed to allege that the reclassification of her termination – which resulted in her losing her security clearance – was wrongful and malicious. (R&R, Doc. 41 at 13–14.) The R&R recommends that because Plaintiff "never alleges why Defendant recharacterized her termination, or that Defendant did so for a wrongful or malicious reason[,]" Plaintiff has failed to allege essential elements of a tortious interference claim. (R&R, Doc. 41 at 14.)
Plaintiff objects, reiterating the deleterious effects of the alleged sudden recharacterization of her termination to one "for cause." (Objections, Doc. 43 at 22–23.) Plaintiff also says:
McKinsey's conduct was improper, malicious, purposeful, and without privilege; it interfered with Ms. Slater's prospective relationships with employers in the aerospace and other industries whose employees must have security clearances in order to perform their duties; and it has caused Ms. Slater career damage and financial harm.
With these allegations, Ms. Slater has alleged all elements of a claim of tortious interference in Count IV, and Count IV should not be dismissed.
(Objections, Doc. 43 at 23.) Although Plaintiff has alleged in the Amended Complaint that McKinsey's conduct in this respect was "willful or with conscious indifference to the consequences," this – in Plaintiff's Objections – is the first time that Plaintiff uses the word "malicious." (See Amended Complaint, Doc. 17 at 36.) Similarly, "improper," "purposeful," and "without privilege" do not appear even once in the Amended Complaint. Instead, Plaintiff discusses the loss of her security clearance as a consequence of McKinsey's decision to recharacterize her termination to one "for cause." (Amended Complaint, Doc. 17 at 12.) But also, Plaintiff makes this allegation within the broader context of the rest of her Amended Complaint, which – when read in totality and in the light most favorable to Plaintiff – may be construed to allege sufficiently that McKinsey acted with malice toward her based on impermissible factors under federal law. Although the approval or revocation of the security clearance is not wholly within McKinsey's power necessarily, Plaintiff does allege that McKinsey acted willfully in this regard, recharacterizing her termination as "for cause" for the purpose of retaliating against her. Plaintiff further alleges that, after holding that security clearance for several years, she lost it the same month that McKinsey terminated her, and she has not identified any other potential reason that her clearance would have been revoked. (R&R, Doc. 17 at 21.) Plaintiff therefore appears to argue that McKinsey out of spite or malice recharacterized her termination not only to strip her of the benefits of being "counseled to leave," but also to inhibit her ongoing ability to maintain the security clearance necessary for her to work in her chosen (and former) fields of employment. Especially when considered in conjunction with Plaintiff's allegation that McKinsey also told prospective employers to simply not hire her, the inferences raised allow the Court to infer that the Amended Complaint is in effect alleging that McKinsey did purposefully and with malice cause her to lose a long-held security clearance as part of its ongoing retaliation against her, and as part of its broader pattern of interfering with her ability to find comparable employment. But as with Count III, Plaintiff simply does not expressly plead these aspects of her claim. Again, it is best practice for Plaintiff to actually and expressly make these allegations. If Plaintiff believes that she can allege a proper factual basis that McKinsey acted purposefully and with malice and without privilege with respect to the security clearance interference claim in Count IV, the Court will give her an opportunity to clarify and state by amending her allegations in connection with Count IV.
Accordingly, Plaintiff's Objection is SUSTAINED , and the Court DECLINES TO ADOPT the R&R is as to Count IV. The Motion to Dismiss is DENIED as to Count IV, subject to the following condition. Plaintiff is DIRECTED to file a Second Amended Complaint in connection with Count IV within 14 days of the date of this Order that in good faith specifies her allegations as to whether Defendant acted purposely, improperly, without privilege and with malice in connection with this specific claim. If and only if Plaintiff fails to file an Amended Complaint in conformity with this direction or decides not to file such an amended pleading by the due date, the Court authorizes Defendant to file a motion to dismiss as to this claim within 10 days of Plaintiff's filing. The Court cautions Defendant anew to avoid needless motion practice.
IV. CONCLUSION
The Court OVERRULES Plaintiff's Objections (Doc. 43) in part and SUSTAINS them in part.
Accordingly, and consistent with the above Order, the Court ADOPTS the R&R as to Counts I and II, subject to the modifications in the Court's analysis explained, and also as Count V. [Doc. 41.]
The Court DECLINES TO ADOPT the R&R as to Count III in part and Count IV. [Doc. 41.] Plaintiff is authorized and DIRECTED to file a Second Amended Complaint with respect to certain supplemental allegations in Count III (negative reference claim) and Count IV, as specifically discussed herein, within 14 days of the date of this Order's filing.
Accordingly, Defendant's Motion to Dismiss is DENIED in part as to Counts III and DENIED in total as to Count IV, subject to the conditions set forth herein. The Defendant's Motion to Dismiss is GRANTED as to Count I, II, and V. [Doc. 29.]
The Parties are DIRECTED to file within 14 days of the date of this Order a Proposed Scheduling Order for the Magistrate Judge's approval, and they may commence discovery immediately upon such approval.
IT IS SO ORDERED this 30th day of March, 2021.