United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
MARK S. DAVIS, District Judge.
This matter is before the Court on a motion to dismiss filed by the United States Department of the Navy ("the Navy"), ECF No. 9, as well as a motion to amend filed by Summer Crump ("Plaintiff"), ECF No. 11. After examining the briefs and the record, the Court determines that oral argument is unnecessary because the facts and legal contentions are adequately presented and oral argument would not aid in the decisional process. Fed.R.Civ.P. 78(b); E.D. Va. Loc. R. 7(J). For the reasons set forth below, Plaintiff's motion to amend is DISMISSED AS MOOT as to the Navy and GRANTED as to TCA and TCMP, and the Navy's motion to dismiss is DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff alleges that she was hired by "joint employers" TCAssociates ("TCA), TCMP Health Services ("TCMP"), and the Navy (collectively, "Defendants") in May of 2010 "as a Physician Assistant at Sewell's Point Branch Medical Clinic in Norfolk, VA, a Navy facility." Am. Compl. ¶¶ 5, 11, ECF No. 11-1. On April 26, 2011, Plaintiff, who "suffers from bilateral profound deafness, " "underwent a surgical procedure... whereby she received a cochlear implant revision" because her "existing cochlear implants" had failed. Id . ¶ 12. On June 17, 2011, three days before Plaintiff was scheduled to return to work, Plaintiff asserts that she submitted a request to TCA and TCMP for "a reasonable accommodation to eliminate unnecessary excessive noise in the clinical environment and an effective and accurate alternative form of telecommunication... so that she could perform the essential requirements of her position." Id . ¶ 14.
"In late July 2011, " Plaintiff asserts that she withdrew her request for the elimination of unnecessary and excessive noise, as she had since become "more acclimated to her implants." Id . ¶ 17. However, Plaintiff "maintained her request for accommodation... associated with telephone communications" and provided additional information to TCA and TCMP "regarding numerous reasonable accommodations, which included American Sign Language Interpreters or video relay service on a video phone or IPAD2 or similar device." Id . According to Plaintiff, TCA and TCMP, "following a delay of approximately one and one-half months, offered accommodations that were neither reasonable nor effective for (Plaintiff's] particular disability, " such as "a telephone attachment or headset, " which only "amplified sound" and "would have done nothing to accommodate her disability, " and "a non-signing staff person to paraphrase the communications by telephone, " which Plaintiff alleges would have carried a "risk of likelihood of patient communications being improperly relayed, especially in emergency situations." Id . 18-19.
In August of 2011, Plaintiff alleges that she "was advised that her request for accommodations' had been agreed to and that she would be allowed to return to work, " after the "details regarding the set up" were resolved. Id . ¶ 20. Plaintiff asserts that "the parties participated in a dialogue by email and other communications with regard to setting up the accommodation, getting the requisite approvals, coordinating... with regard to logistics set up, approvals, and responsibility for the cost for and provision of the accommodation, among other things." Id . However, "[o]n October 12, 2011, " according to Plaintiff's Amended Complaint, the Navy "forwarded a written form for Request for Accommodation to [Plaintiff], through [TCA] and/or TCMP, " which Plaintiff alleges she submitted "as instructed, " "request[ing] reasonable accommodations from the Navy." Id . ¶ 21. Plaintiff alleges that she also "requested a conference between the Navy, [TCA] and/or TCMP and herself to discuss the accommodations necessary, details regarding set up, and attempt to come to a resolution." Id . ¶ 23. Plaintiff asserts that "Defendants agreed to the conference" and that Plaintiff believed that TCA, TCMP, and the Navy "remained interested in resolving the issues." Id . ¶¶ 22-23. Plaintiff alleges that, "by February 21, 2012, the conference had not taken place and [Plaintiff] had not received a response from the Navy [regarding] her October 17, 2011 Request for Accommodation." Id . ¶ 24. Thus, in a "letter dated that day, [Plaintiff] advised the Navy that if it did not respond within ten (10) days of receipt of the letter, she would consider the request for accommodation to be denied and would proceed with consulting a counselor pursuant to 29 CFR 1614.105 in order to resolve the matter." Id. After "receiv[ing] no response, " Plaintiff "instituted an action against the Navy pursuant to the Rehabilitation Act." Id.
On June 15, 2012, during a "meeting with an EEO Counselor in connection with her claim against the Navy, " Plaintiff asserts that she received a copy of the Navy's response to her accommodation request, dated May 24, 2012, which Plaintiff alleges the Navy sent "directly to [TCA] and/or TCMP, and did not provide a copy directly to [Plaintiff]." Id . ¶ 25. Plaintiff asserts that "the Navy (and [TCA] and/or TCMP, through agreement) proposed the use of sign language services' and/or a Z150 video phone, " although Defendants could not offer either "assurance that the 2150 [video phone] would be approved or a date by which the [video phone] could be approved, ordered, installed or operational." Id . ¶ 26. Plaintiff also alleges that Defendants "could give no assurance to [Plaintiff] regarding the medical qualifications, certifications or credentials of the interpreters, with such being necessary in the medical profession, or their availability on short notice." Id . ¶ 27.
"As of July 27, 2012, " Plaintiff contends, "Defendants [had] failed to institute any accommodations... which would allow [Plaintiff] to return to work." Id . ¶ 29. According to Plaintiff, Defendants' failure demonstrated "a deliberate, intentional effort to force [Plaintiff's] resignation and [to create] impossible and intolerable working conditions." Id . Accordingly, Plaintiff alleges that she was forced "to quit her job effective that day" and that Defendants'"fail[ure] and refus[al] to cooperate in resolving [her] request for accommodation ultimately [led] to [Plaintiff's] constructive discharge." Id . ¶¶ 29-30.
On December 19, 2013, Plaintiff filed a Complaint against Defendants, alleging discrimination, failure to accommodate, and constructive discharge against TCA and TCMP in violation of the Americans with Disabilities Act of 1990 ("the ADA"), 42 U.S.C. §§ 12101 et seq., and against the Navy in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. Complaint, ECF No. 1. On January 29, 2014, TCA and TCMP filed an Answer to Plaintiff's Complaint, denying liability to Plaintiff and asserting various affirmative defenses. ECF No. 5. On March 31, 2014, the Navy filed a Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 9. Fourteen days later, on April 14, 2014, Plaintiff filed a Motion to Amend/Correct her Complaint, attached to which was a proposed Amended Complaint. ECF Nos. 11, 11-1. Defendants TCA and TCMP have not responded to either motion, but both motions have been fully briefed by Plaintiff and the Navy and are therefore ripe for review.
II. STANDARD OF REVIEW
A. Motion to Amend Complaint - Rule 15(a)
Under Rule 15(a) of the Federal Rules of Civil Procedure, a "party may amend its pleading once as a matter of course" within "21 days after serving it, " or, "if the pleading is one to which a responsive pleading is required, " such as a complaint, "21 days after service of [the] responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed.R.Civ.P. 15(a). Once a defendant has filed a responsive pleading, the plaintiff may amend its pleading "only with the opposing party's written consent or the court's leave." Id . The United States Court of Appeals for the Fourth Circuit has embraced the "policy to liberally allow amendment in keeping with the spirit of [Rule] 15(a), " Galustian v. Peter , 591 F.3d 724, 729 (4th Cir. 2010), which provides that a "court should freely give leave when justice so requires, " Fed.R.Civ.P. 15(a)(2).
The Fourth Circuit has "interpreted Rule 15(a) to provide that leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.'" Laber v. Harvey , 438 F.3d 404, 426 (4th Cir. 2006) (quoting Johnson v. Oroweat Foods Co. , 785 F.2d 503, 509 (4th Cir. 1980)). For instance, "a prejudicial amendment is one that raises a new legal theory that would require the gathering and analysis of facts not already considered by the [defendant, and] is offered shortly before or during trial.'" Id . (quoting Oroweat Foods , 785 F.2d at 509). "Futility is apparent if the proposed amended complaint fails to state a claim under the applicable rules and accompanying standards." Katyle v. Penn Nat'l Gaming, Inc. , 637 F.3d 462, 471 (4th Cir. 2011); see also United States ex rel. Wilson v. Kellogg Brown & Root, Inc. , 525 F.3d 370, 376 (4th Cir. 2008); Galustian , 591 F.3d at 730 (observing that "the doctrine of futility only applies when the plaintiff seeks leave of court to amend and does not have a right to amend"). ...