United States District Court, E.D. Virginia, Richmond Division
REPORT AND RECOMMENDATION
RODERICK C. YOUNG, Magistrate Judge.
Douglas Weakley ("Plaintiff" or "Mr. Weakley"), proceeding pro se and in forma pauperis, brings this suit against Homeland Security Solutions, Inc. ("Defendant" or "HSSI"), alleging violations of the Americans with Disabilities Act ("ADA") and the Virginia Human Rights Act ("VHRA"). Following the filing of his Original Complaint (ECF No. 3), Plaintiff filed a document styled "Plaintiff's Request to Amend Supplement" (Pl.'s Request to Amend Supplement, ("Pl.'s Request to Amend"), ECF No. 12) in which he moved to drop his VHRA claim and to raise a new claim under § 510 of the Employee Retirement Income Security Act ("ERISA").
Between Plaintiff's Original Complaint and his Request to Amend, the Court construes the universe of Plaintiff's claims to be: (1) that Defendant unlawfully terminated Plaintiff's employment due to his disability in violation of the ADA; (2) that Defendant retaliated against Plaintiff for engaging in ADA-protected activity; (3) that Defendant unlawfully terminated Plaintiff's employment due to his disability in violation of the VHRA; and, (4) that Defendant unlawfully canceled Plaintiff's health insurance benefits prior to his termination in violation of ERISA. Defendant responds" (1) that Plaintiff's ADA unlawful termination claim is untimely; (2) that Plaintiff's ADA retaliation claim is untimely; (3) that the VHRA does not apply to Defendant; and, (4) that Plaintiff's ERISA claim is untimely.
This matter comes before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on Defendant's Motion to Dismiss (ECF No. 6), Plaintiff's Request to Amend Supplement (ECF No. 12), Defendant's Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 18), and Defendant's Motion to Strike "Plaintiff's Response to Defendant's Reply Brief in Support of its Motion to Dismiss: Dated Feb 16, 2015 and Conclusion to Purtanant [sic] Facts of Case" (ECF No. 29). For the reasons set forth below, the Court RECOMMENDS that Defendant's Motion to Dismiss (ECF No. 6) be DENIED AS MOOT; Plaintiff's Request to Amend Supplement (ECF No. 12) be GRANTED; Defendant's Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 18) be GRANTED; and, Defendant's Motion to Strike (ECF No. 29) be GRANTED.
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation omitted) (emphasis added). Accordingly, on a motion to dismiss, the record includes "the complaint in its entirety, as well as... documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
The Court construes the allegations in the complaint in favor of the non-moving party, as required when resolving a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 591 (4th Cir. 2004) (citations omitted); see also Fed.R.Civ.P. 12(b)(6). Viewing the facts through such a lens, the Court has concluded that the relevant facts are as follows.
A. Facts Alleged in the Original Complaint
In his Original Complaint (ECF No. 3),  Plaintiff alleges
violations of his rights under [the] Americans with Disabilities Act of 1990 as well as discriminat[ion] against [him] due to [his] disability, [his] need for further surgeries and in retaliation for engaging [in] a protected activity, all in violation of the Americans with Disabilities Act of 1990, as amended - Section-503, and the Virginia Human Rights Act, Va Code 2-2-3900B et seq.
(Compl., ECF No. 3 at 1.) As noted above, the Court reads these statements as Plaintiff making the following claims: (1) that Defendant unlawfully terminated Plaintiff's employment due to his disability in violation of the ADA; (2) that Defendant retaliated against him for engaging in ADA-protected activity; and, (3) that Defendant unlawfully terminated Plaintiff's employment due to his disability in violation of the VHRA.
1. Exhaustion of Administrative Remedies
In his Original Complaint, Plaintiff alleges that he exhausted his remedies with the Equal Employment Opportunity Commission ("EEOC"). (Id. ) On August 14, 2014, the EEOC made a determination that Defendant had not violated the ADA. (Compl. Ex. 1, ECF No. 3-1.) Accordingly, the EEOC issued Plaintiff a Right to Sue Letter ("RTS Letter"), dated August 14, 2014. (Id. ) In his Original Complaint, Plaintiff did not allege when he actually received his RTS Letter.
2. Plaintiff's Medical Condition and Medical Leave
From August 2010 to August 2012, Plaintiff worked for Defendant as a Physical Security Specialist. (Compl. at 1.) Plaintiff alleges that "[a]t all times, [he] walked with a noticeable limp due to [his] disability." (Id. ) During the course of his employment, Plaintiff "was out of work due to a medical condition from July 2011 to November 2011." (Id. ) After returning to work, Plaintiff "advised [his] supervisor that [he] would need an additional four months of leave in 2012 due to an expected surgery related to [his] medical condition." (Id. ) "In or around May 2012, [Plaintiff] requested a leave of absence for a surgery as a reasonable accommodation." (Id. ) Plaintiff's surgery was originally scheduled for July 9, 2012. (Id. at 1, 4.) Plaintiff's surgery was for his knees. ( See Compl. Ex. 13, ECF. No. 3-14.) When Plaintiff requested his leave, Defendant's human resources office approved the request. (Compl. at 1.) Later, Plaintiff's surgery, originally "scheduled for July 2012[, ] was canceled due to a medical complication, " specifically, "a heart condition." (Id. at 1, 4.)
On August 17, 2012, shortly before his discharge, Plaintiff alleges that "Melissa Mason, Regional Sup, and Jim Turner, Regional Coord, met with [him] in [his] office[, and that t]hey asked [him] about the status of [his] need for surgery." (Id. at 2.)
3. Termination of Plaintiff's Employment
On August 31, 2012, Defendant terminated Plaintiff's employment, alleging that Plaintiff had falsified a timesheet on July 26, 2012. (Compl. Ex. 6, ECF No. 3-6.) Plaintiff alleges that he never falsified the timesheet. (Compl. at 2.) Plaintiff further alleges that the timesheet incident was a pretextual reason used by Defendant to discredit Plaintiff and subsequently to terminate his employment. (Compl. at 3.) Plaintiff further alleges that his termination was actually motivated by Defendant's "concern with [his] past and future medical leave." (Id. )
In support of Plaintiff's allegations of pretext, Plaintiff provides several affidavits from coworkers (Compl. Exs. 2, 5(c), 15, 16, ECF Nos. 3-2, 3-6, 3-15, 3-16), two signed and notarized statements (Compl. Exs. 5(a), 5(b), ECF Nos. 3-5, 3-6), and one signed statement (Compl. Ex. 4, ECF No. 3-4.) These documents, several of which are illegible, collectively contain numerous statements that support an inference that Plaintiff's supervisor, Ms. McGuigan, fabricated the timesheet incident to justify terminating Plaintiff's employment. ( See also Compl. at 2.) However, these documents do not contain allegations or statements that otherwise support an inference that Plaintiff was disabled or that Defendant discriminated against him due to his alleged disability. The Court, therefore, does not discuss these documents in great detail as they are largely irrelevant to ruling on Defendant's Motion to Dismiss.
In further support of his argument that the timesheet incident was a mere pretext for his termination, Plaintiff offers employee evaluations that allegedly demonstrate that Defendant was "clearly satisfied with [his] performance." (Compl. at 3; see Compl. Ex. 15, ECF No. 3-15 at 1-6.) One evaluation, dated August 8, 2011, is typed and shows Plaintiff with an evaluation score of 129/135; however, this evaluation is unsigned by either Plaintiff or his supervisor, Ms. McGuigan. (Compl. Ex. 15, ECF No. 3-15 at 1-3.) The other evaluation, dated January 26, 2011, is handwritten and shows Plaintiff with an evaluation score of 97/135; this evaluation is signed by both Plaintiff and Ms. McGuigan. (Id. at 4-6.)
4. Cancellation of Plaintiff's Medical and Dental Insurance
In his Original Complaint, Plaintiff alleges that Defendant cancelled his employee-benefit dental and medical insurance plans, without his knowledge, approximately one month before the termination of his employment. (Compl. at 2-3.) Plaintiff has attached a document from his medical insurance provider indicating that his medical insurance coverage ended on August 1, 2012. (Compl. Ex. 7, ECF No. 3-8 at 1.) Plaintiff has also attached a document indicating that his dental insurance coverage ended on July 31, 2012, before resuming on September 1, 2012. (Id. at 2.)
B. Facts Alleged in Plaintiff's Request to Amend Supplement
Construing Plaintiff's Request to Amend as a motion to file an amended complaint, and finding that Plaintiff has a right under the Federal Rules of Civil Procedure to amend his Original Complaint,  the Court will consider any claims and allegations in Plaintiff's Request to Amend, in addition to those in Plaintiff's Original Complaint.
Plaintiff begins his Request to Amend by asking the Court to remove his VHRA claim from his Original Complaint. (Pl.'s Request to Amend at 1.) Examining the Request to Amend further, the Court finds that Plaintiff's only factual allegation is Plaintiff's statement that "[w]ith plaintiff[']s Exhibit 1 a, b attached (showing a company paid health and dental plan cancelled months before [Plaintiff s] dismissal and company aware of upcoming surgeries)." (Id. at 2.) In support of this allegation, Plaintiff attaches medical and dental insurance documents-the same as those attached to his Original Complaint-that indicate that his coverage was cancelled prior to his discharge. ( See Pl.'s Request to Amend Exs. 1(a), 1(b), ECF Nos. 12-1, 12-2; see also (Compl. Ex. 7, ECF No. 3-8 at 1-2.) Despite the lack of new factual allegations, Plaintiff does officially add a claim under "Section 510 of ERISA, 29 U.S.C. § 1140." (Pl.'s Request to Amend at 2.) The balance of Plaintiff's Request to Amend is made up of legal argument that adds no new factual allegations in support of Plaintiff's claims.
C. Facts Alleged in Plaintiff's Response to Defendant's Motion to Dismiss
Plaintiff's Response to Defendant's Motion to Dismiss contains numerous exhibits and factual allegations found neither in Plaintiff's Original Complaint nor in Plaintiff's Request to Amend.
Specifically, Plaintiff alleges further details regarding his medical condition. ( See Resp. to Def.'s Mot. to Dismiss ("Pl.'s First Resp. Br."), ECF No. 11 at 3; Pl.'s First Resp. Br. Exs. 5(a), 5(d), ECF Nos. 11-7, 11-10.) Plaintiff also alleges, for the first time, that he actually received his RTS Letter on August 20, 2014. (Pl.'s First Resp. Br. at 2.) Plaintiff attached to his First Response Brief several Mail Tracking Records ("Tracking Records") that indicate that items mailed from Plaintiff's home in Mechanicsville, Virginia take more than three days to reach the EEOC Office in Washington, D.C. (Pl.'s First Resp. Br. Exs. 1-3, ECF Nos. 11-1, 11-2, 11-3; see also Pl.'s First Resp. Br. at 2-3.)
In light of these new allegations, the Court notes that
Plaintiff cannot assert new claims by raising them in h[is] brief in opposition to the Defendant's motion to dismiss. "[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss. To hold otherwise would mean that a party could unilaterally amend a complaint at will, even without filing an amendment, and simply by raising a point in a brief.'"
Marsh v. Virginia Dept. of Transp., No. 6:14-CV-00006, 2014 WL 6833927, at *8 (W.D. Va. Dec. 3, 2014) (quoting Morgan Distrib. Co., Inc. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir.1989) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984))); Shapiro v. Regent Univ., No. 2:09cv605, 2010 U.S. Dist. LEXIS 53172, at *6 n.3 (E.D. Va. May 26, 2010) (citing Morgan Distrib. Co., Inc., 868 F.2d at 995) (granting the defendant's motion to dismiss and noting that "[p]laintiff is not permitted to assert new claims by raising them in his brief in opposition to the [d]efendant's motion."); cf. Barclay White Skanska, Inc. v. Battelle Mem'l Inst., 262 F.Appx. 556, 563 (4th Cir. 2008) (citing Car Carriers, Inc., 745 F.2d at 1107) (recognizing that a plaintiff cannot amend his complaint by a brief in opposition to a motion for summary judgment).
Plaintiff seemingly made these new allegations and provided this documentation to counter Defendant's Motion to Dismiss in an attempt to support not only the merits of his disability discrimination claim, but also the allegation that he timely filed his Original Complaint. However, none of these new allegations are found in either the Original Complaint or Plaintiff's Request to Amend. The Court, therefore, cannot consider any of these allegations or this documentation in resolving Defendant's Motion to Dismiss and Motion to Dismiss Plaintiff's Amended Complaint.
This result may seem harsh; however, the Court hastens to note that Plaintiff also filed what was essentially an amended complaint on the same day as his First Response Brief. Plaintiff clearly had enough acumen to know that the Rules of Civil Procedure allow for the filing of amended complaints. Nonetheless, Plaintiff chose to separate the argument and allegations in his First Response Brief from the new claims and allegations raised in his Request to Amend. While pro se litigants are held to "less stringent standards, " Erickson v. Pardus, 551 U.S. 89, 94 (2007), it is not the responsibility of the Court to reorganize and edit Plaintiff's filings by conjecture or assumption while attempting to infer Plaintiff's intentions, nor would it be appropriate to do so. See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (noting that, when analyzing pro se documents, a district court need not transform itself from "its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.") Furthermore, as discussed below, even if the Court were to consider the new allegations raised in Plaintiff's First Response Brief, they still would not operate to establish that Plaintiff actually received his RTS Letter on August 20, 2014.
Ultimately, the Court will not consider the additional allegations in Plaintiff's First Response Brief as "No hold otherwise would mean that a party could unilaterally amend a complaint at will... by raising a point in a brief." Marsh, 2014 WL 6833927, at *8.
II. PROCEDURAL POSTURE
On February 19, 2013, Plaintiff filed a Charge of Discrimination with the EEOC. (Compl. Ex. 9, ECF No. 3-10.) Thereafter, on June 30, 2014, the EEOC notified Plaintiff that its investigation revealed "no causal link between [Defendant's] adverse action and [Plaintiff's] disability." (Compl. Ex. 10, ECF No. 3-11 at 1.) Accordingly, the EEOC dismissed Plaintiff's claim. (Id. ) On August 14, 2014, the EEOC issued Plaintiff the RTS Letter, which informed him of his right to file a civil action against Defendant in federal court within 90 days of his receipt of the RTS Letter. (Compl. Ex. 1, ECF No. 3-1.) Because the date that Plaintiff received the RTS ...