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Marsh v. Virginia Department of Transportation

United States District Court, W.D. Virginia, Lynchburg Division

December 3, 2014



NORMAN K. MOON, District Judge.

The pro se Plaintiff alleged that her former employer, the Virginia Department of Transportation ("VDOT"), terminated her employment in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, after she complained about mold in the Fiscal department of the Lynchburg facility, where she worked, and the affect of the mold on her health. Defendant submitted a motion to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that the VDOT, as an arm of the state, is immune from claims filed pursuant to Title I of the ADA. I granted the motion to dismiss the ADA claims for lack of jurisdiction. However, Plaintiff also moved to amend her complaint to state a claim pursuant to § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701, and I granted the motion.

Plaintiff filed an amended complaint, which is a near-verbatim duplication of Plaintiff's original complaint, with one notable exception: in one exhibit, Attachment A, Plaintiff replaces a reference to the ADA with a reference to § 504 of the Rehabilitation Act ("Rehabilitation Act, " or "Section 504"). Otherwise, the amended complaint and attachments thereto duplicate the original complaint. Plaintiff used a local form designated for pro se plaintiffs filing a complaint under the Equal Employment Opportunity Act, 42 U.S.C. 2000e, et seq. ("Title VII"). However, the amended complaint makes no reference to any claim covered by Title VII, which only covers discrimination claims based on race, color, religion, sex, or national origin.

The amended complaint is a jumble, [1] but given a careful parsing and liberal construction, Plaintiff lodges the following allegations (although she does not state how they violate the Rehabilitation Act): (1) on September 11, 2012, VDOT refused to accommodate Plaintiff's disability when it declined to relocate her to an enclosed office; (2) on December 17, 2012, VDOT denied Plaintiff a tangible employment benefit when it did not allow her to participate in "cross training" for another position; (3) on July 8, 2013, VDOT refused to accommodate Plaintiff's disability when, after granting her previous requests to relocate, it declined to relocate her a third time; and (4) on August 21, 2013, VDOT discharged Plaintiff on the basis of her disability when she was forced to go on long term disability.

At the hearing on the motion to dismiss, Plaintiff fleshed out an argument that she has been treated differently from similarly situated individuals, particularly that she has been treated differently from other VDOT employees who were given the accommodation of telecommuting. Accordingly, out of an abundance of caution, I will deny the motion to dismiss the § 504 claim, and this matter will proceed to summary judgment. However, given the motion to dismiss pleading standard as refined by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), [2] Plaintiff has not alleged a violation of any other statute, including Title VII, and the applicable one-year statute of limitations period bars any § 504 claim that occurred prior to February 7, 2013.


As previously mentioned, Plaintiff alleges that she suffers from chronic allergies that cause various respiratory ailments when she is exposed to mold spores. Plaintiff alleges she was "discharged because of [her] health" when she was placed on long term disability and accordingly removed from the VDOT payroll. As a consequence of going on long term disability, Plaintiff's position became vacant, and VDOT was authorized to fill the position.

Although the style of her complaint names the VDOT as the only Defendant, she specifies the following "[p]arties involved in [her] discharge":

John Hays, Assistant Director and Business Administrator, Joyce Coleman, Financial and Accounting Manager, and Joyce Henry, Fiscal Supervisor were the management team supplying the information for the State EEOC investigation.
Phyllis Brice, EEO & Civil Rights Manager, Sally Blanchard, Human Resource Manager were council to the management team.
Janice F. Curtis, Affirmative Action Officer Section 504/ADA Coordinator Civil Rights Division, Shay Ponquinette, Acting Civil Rights Administrator and Sandra Norman, Assistant Division Administrator Civil Rights Division. This team reported the findings and made the determinations.
Tim McCoy, Facilities Manager, David Gardner, Facilities Technician supplied technical facility information. Shamsi Taghavi, Statewide Industrial Hygienist was responsible for air testing.

Plaintiff states that she "would like a similar job, but not in VDOT fiscal." She alleges that she has suffered unspecified damages, adding that, "[b]ecause of their failure to make accommodations available I was forced to leave my job and my medical conditioned [sic] was worsened because I continued to try to work. I seek damages in an amount maximum allowable under law."

The complaint and the record submitted in support thereof indicate that, on May 21, 2013, the U.S. Equal Employment Opportunity Commission ("EEOC") issued a "DETERMINATION" that,

Examination of evidence showed that [Plaintiff] was a qualified individual with a disability and could perform the essential functions of her job, satisfying all job requirements established by Respondent. Evidence showed that Respondent was aware of [Plaintiff's] physical impairment. Respondent admits that it incurred costs associated with renovating [Plaintiff's] immediate work area. Nevertheless, mold continues to be present in her work area and Respondent refuses to relocate [Plaintiff] to another room or floor within its building as a reasonable accommodation, which would allow her to perform the essential functions of her job.... Respondent knowingly denied the [Plaintiff] the opportunity to continue performing her job duties as a member of the Finance staff by its failure to provide an effective reasonable accommodation.

The EEOC concluded that, "[b]ased on the analysis of the evidence, there is reasonable cause to believe [Plaintiff] was denied reasonable accommodation, in violation of the [ADA] of 1990, as amended."[3] "Upon the finding that there is reason to believe that a violation has occurred, " the EEOC attempted "to eliminate the alleged unlawful practice by informal means of conciliation, " inviting "the parties to join with it in reaching a just resolution of the matter." However, on July 23, 2013, the EEOC issued a "NOTICE OF CONCILIATION FAILURE, " notifying the parties that it was "forwarding [the] case to the Department of Justice for possible litigation or the issuance of the Notice of Right to Sue (NRTS)."

According to Plaintiff, by "[l]etter dated September 30, 2013, " she "was removed from VDOT's payroll" and was informed that she "was no longer an employee." At some point, she was informed that she would be placed on long-term disability ("LTD") on August 21, 2013, and she is apparently receiving LTD, as she complains that representatives from the LTD insurance ...

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