United States District Court, E.D. Virginia, Richmond Division
For Nathan Pickering, Plaintiff: Blackwell Nixon Shelley, Jr., Lauren Elizabeth Fisher, Tim Schulte, LEAD ATTORNEYS, Shelley & Schulte PC, Richmond, VA; Timothy E. Cupp, LEAD ATTORNEY, Shelley Cupp Schulte PC, Harrisonburg, VA.
For Virginia State Police, Defendant: Gregory Clayton Fleming, LEAD ATTORNEY, Office of the Attorney General, Richmond, VA; Charles Antony Quagliato, Christina Nicole Sydnor, Office of the Attorney General (Richmond), Richmond, VA.
For W. Stephen Flaherty, Colonel, Superintendent of Virginia State Police, Defendant: Christina Nicole Sydnor, LEAD ATTORNEY, Charles Antony Quagliato, Office of the Attorney General (Richmond), Richmond, VA; Gregory Clayton Fleming, LEAD ATTORNEY, Office of the Attorney General, Richmond, VA.
John A. Gibney, Jr., United States District Judge.
This matter comes before the Court on the defendants' motion to dismiss the amended complaint. (Dk. No. 6.) The plaintiff, Nathan Pickering, filed suit against the Virginia State Police and Colonel W. Stephen Flaherty, the Superintendent of the Virginia State Police. The defendants now move to dismiss the suit for lack of subject matter jurisdiction and for failure to state a claim. Fed.R.Civ.P. 12(b)(1), (6).
Pickering brings two claims against the defendants. Count I alleges discrimination in violation of the Rehabilitation Act of 1973. Count II alleges discrimination in violation of Title I of the Americans with Disabilities Act (" ADA" ). Because Pickering has pled facts sufficient for a prima facie allegation of causation under the Rehabilitation Act, the Court DENIES the defendants' motion to dismiss Count I. Regarding his claim under the ADA, Pickering has sued the proper state official and alleged an ongoing violation of federal law, as required by Ex Parte Young. Moreover, his allegation of the timing of his termination sufficiently gives rise to an inference of discriminatory intent under the ADA. For these reasons, the Court DENIES the defendants' motion to dismiss Count II.
I. Statement of Facts
The Virginia State Police (" VSP" ) hired Pickering on October 25, 2012, as an Agency Management Analyst Senior in the Bureau of Criminal Investigation. Prior to
working for the VSP, Pickering served in the Army from 1999 to 2003, including seven months in Afghanistan during 2002. After his honorable discharge from the Army in 2003, Pickering worked for the CIA as a Security Protective Officer and then for the Petersburg, Virginia, Police Department.
On January 31, 2013, Pickering commented to his VSP supervisor, Rob Reese, about the recent Sandy Hook Elementary school-shooting tragedy that had occurred on December 14, 2012. Pickering stated that " it seems like everyone is putting 'shooting up the place' on their bucket list."  (Dk. No. 6 at ¶ 37.) Reese took offense at Pickering's statement, considering it a " workplace threat," and suspended Pickering on February 1, 2013, pending an internal investigation. (Dk. No. 6 at ¶ 47.) On February 3, Pickering sent a letter to Captain Steven Lambert at the VSP apologizing for his comments and explaining that his diagnosis of Post-Traumatic Stress Disorder (" PTSD" ) includes " verbal impulsiveness." (Dk. No. 6 at ¶ 44.) Just over a week later, Pickering's psychiatrist sent a subsequent letter to Captain Lambert confirming that Pickering had been diagnosed with PTSD when he returned from Afghanistan in 2004. The psychiatrist stated that verbal impulsivity is a " target symptom" of PTSD and advised that Pickering was " engaged in treatment and is currently at low risk for self-harm or harm to others." (Dk. No. 6 at ¶ 45.)
On March 18, 2013, the VSP informed Pickering of his termination via letter from Captain Lambert. Pickering alleges that the VSP changed its reason for termination to " failure to follow a direct order," and several months later on July 5, 2013, indicated that Pickering had violated a rule against " publishing . . . any statement in which he/she represents himself as an official spokesman for the Department" without authorization. (Dk. No. 6 at ¶ ¶ 48, 49.) This apparently referred to an email the VSP claims Pickering sent to the Petersburg Police Department, his former employer. Pickering claims he sent the ...