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Tomasello v. Fairfax County

United States District Court, E.D. Virginia, Alexandria Division

January 13, 2016

PATRICIA TOMASELLO, Plaintiff,
v.
FAIRFAX COUNTY, VIRGINIA, Defendant.

          MEMORANDUM OPINION

          T. S. ELLIS, III, District Judge.

         Plaintiff in this five-count employment discrimination and retaliation case has been an employee of defendant for nearly twenty years, serving in the Fairfax County Fire and Rescue Department since August 1996. Plaintiff alleges that dating back to when she first began her employment with defendant in 1996, she has been subjected to discriminatory treatment on the basis of her race and sex. More recently, in February 2010 plaintiff was diagnosed with cancer, which plaintiff alleges prompted a new wave of discrimination on the basis of her disability in addition to the already allegedly prevalent racial and gender discrimination. Accordingly, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on January 29, 2014, and thereafter (presumably after obtaining a right to sue letter) filed this action on January 26, 2015, alleging (i) discrimination in violation of Title VII[1] on the basis of race and sex (Count I), (ii) retaliation in violation of Title VII (Count II), (iii) violation of the First and Fourteenth Amendments (Count III), (iv) discrimination in violation of the Americans with Disabilities Act ("ADA")[2] (Count IV), and retaliation in violation of the ADA (Count V).

         Defendant Fairfax County filed a motion for summary judgment on all counts, which was thereafter fully briefed, argued, and taken under advisement. For the reasons that follow, the undisputed record facts disclose that defendant is entitled to judgment as a matter of law.

         I.

         The undisputed facts central to this dispute may be succinctly stated.[3] Plaintiff is an African-American female with a history of cancer who has been employed with the Fairfax County Fire and Rescue Department ("the Department") since August 1996. The Department is an agency of the named defendant, Fairfax County, Virginia.

         In September 2005, plaintiff was promoted to Lieutenant in the Fire and Hazardous Materials Investigative Services Section ("FHMIS") in the Department's Fire Prevention Division, a sworn law enforcement position. Upon completion of the required academy training, plaintiff was sworn in as a law enforcement officer and officially became a Fire Investigator. In this position, plaintiff's job duties included (i) conducting investigations to determine the origins of fires, explosions, and hazardous materials cases, (ii) responding to hazardous material incidents, (iii) interviewing witnesses and examining incident scenes for evidence, (iv) preparing cases for prosecution, and (v) testifying in court.

         In February 2010, plaintiff was diagnosed with cancer. Thereafter, in August 2010, plaintiff requested to be placed on light duty, and this request was granted. Plaintiff concedes she requested light duty because, as a result of her chemotherapy, she could not dig through debris to determine the origins of a fire or enter hazardous environments, both of which are listed in defendant's description of the "essential duties" of a Fire Investigator. See Def't Mem. Supp. (Doc. 35), Ex. 4. During her light duty, plaintiff temporarily swapped positions with a lieutenant in a technical support position, which did not require performance of duties inconsistent with her medical condition. In July 2011, plaintiff requested an extension of time on light duty beyond the one calendar year that Department policy allowed. This request was also granted. Then, in November 2011, Chief Barrero, plaintiff's supervisor, informed plaintiff that it was necessary to transfer plaintiff out of FHMIS, but in fact no transfer followed. Instead, plaintiff remained on light duty in FHMIS until December 2011, when she was medically cleared to return to regular shift duty as a Fire Investigator. She then resumed her former position.

         In February 2012, plaintiff's cancer recurred, and plaintiff thereafter again requested light duty in April 2012, which Chief Barrero approved.[4] Thus, plaintiff received a light duty work assignment within FHMIS, but was informed that no light duty assignments were permanent and that this assignment was subject to change at any time based on Department needs. Plaintiff once again switched positions with another employee such that plaintiff assumed a technical support position within FHMIS that did not require performance of duties inconsistent with her medical condition.

         In August 2012, plaintiff submitted to the Department her first and only written complaint alleging discourteous and discriminatory treatment by Chief Barrero. Plaintiff concedes that defendant's response to this complaint resolved her issues with Chief Barrero and that there were no subsequent incidents of discourteous or discriminatory treatment by Chief Barrero at FHMIS. Def't Mem. Supp. at 6-7, ¶ 26; P. Opp. (Doc. 41) at 18, ¶ 16 (not denying the relevant portion of defendant's stated fact). In September 2013, plaintiff was medically cleared to return to regular duty and she then returned to shift work as a Fire Investigator.

         Thereafter, in October 2013, defendant received a complaint from a rental property manager regarding employment verification information the property manager had received - ostensibly from human resources official Katrina Powell - regarding plaintiff's son, Armando, who had been employed with the Department from May 2013 until his termination in July 2013. When the property manager initially sought to verify Armando's employment with the Department, the property manager received, via fax, a signed employment verification form that listed a return telephone number, which the property manager then called to confirm the fax's authenticity. Over the telephone, the property manager spoke with a woman claiming to be Katrina Powell, the name matching the signature on the verification form. After observing that Armando never seemed to go to work, the property manager decided to double check his employment status. When the property manager again called the telephone number listed on the employment verification form, her call went to a voicemail system identifying the telephone number as plaintiff's rather than Powell's. From this, the property manager concluded that she had been deceived and lodged a complaint with defendant's human resources department.

         The matter was referred to Guy Morgan, the Department's Professional Standards Investigator, who then investigated plaintiff for a series of unprofessional and unlawful acts while on duty as a sworn law enforcement officer, including:

(1) providing false verbal and written employment information about Armando;
(2) impersonating Powell;
(3) forging Powell's signature on a public document; and
(4) using Department equipment to communicate false employment information in order to assist Armando in obtaining a lease.

         Over the course of the investigation, plaintiff admitted that she made false statements about Armando's employment, at one point telling Morgan, "I'm telling you, I lied. I did lie. I lied."[5] In fact, Morgan's interview of plaintiff was recorded, and a complete review of the video recording of plaintiff's interview discloses several instances in which plaintiff admitted to dishonesty with respect to her verification of Armando's employment. E.g., Def't Mem. Supp., Ex. 17 at 38:17 ("It was not true."); 1:25:30 ("I didn't tell the truth initially about my son. I didn't tell the truth."); 1:33:36 ("It is a lie, but I wasn't looking at it as a lie."). Based on his investigation, Morgan concluded that plaintiff violated at least six Department policies, including those touching on truthfulness.[6] Accordingly, in December 2013, one of plaintiff's supervisors, Chief Reilly, proposed terminating plaintiff's employment. Plaintiff appealed this recommendation, and the Department, acting through Fire Chief Bowers, ultimately decided in January 2014 to reduce the disciplinary action from termination to a ten-day suspension without pay.

         In addition to being suspended without pay, plaintiff lost her position as a Fire Investigator and was transferred to the Operations Bureau to serve there as a lieutenant, the same rank she held prior to this reassignment. The undisputed record further reflects that defendant concluded that the transfer was necessary because Fire Investigators, as part of their duties, must be able to present reliable testimony in criminal trials. Plaintiff, as a result of a finding of a truthfulness violation, would not be able to offer such testimony without being subject to an attack on her credibility. Indeed, defendant considered plaintiff to pose a Brady [7] problem, i.e., criminal defendants would be entitled to know about plaintiff's untruthful behavior and to use this fact for impeachment purposes were plaintiff to testify at a trial. Specifically, under the Supreme Court's decision in Giglio v. United States, 405 U.S. 150, 154 (1972), a witness's reliability falls within the scope of required Brady disclosures when the witness's reliability may be material to guilt or punishment. Given this, the Department concluded that plaintiff could not provide reliable testimony in trials and therefore could not perform an essential function of her job as a Fire Investigator.

         After her reassignment to the Operations Bureau, plaintiff, as part of her job duties, was required to perform fire suppression, which she had not performed since her promotion to Fire Investigator in 2005. Accordingly, prior to performing work in the field, plaintiff was required, consistent with standard operating procedures, to complete a Field Reentry Program. In January 2014, while participating in the Field Reentry Program, plaintiff filed her EEOC charge of discrimination.

         In February 2014, plaintiff entered the second phase of the Field Reentry Program, which required plaintiff to begin working 24-hour shifts. Prior to completing this phase of the program, in June 2014 plaintiff requested a change in her work schedule so that she could work day shifts rather than 24-hour shifts. Plaintiff also submitted an ADA Accommodation Request Form in June 2014 requesting "day work." The Department granted plaintiff's request and assigned plaintiff to perform a temporary day work assignment in Headquarters beginning in June 2014. A little over a year later, in August 2015, the Department classified plaintiff as medically disqualified from performing the essential job tasks of a firefighter based on a recommendation from Dr. Donald Stewart, M.D. Since October 2015, plaintiff has been on leave under the Family Medical Leave Act.[8]

         II.

         Plaintiff alleges a number discriminatory actions reaching back nearly twenty years to the commencement of her employment with defendant in 1996. Specifically, the Amended Complaint alleges five counts:

(1) Count I: Discrimination on the basis of race and sex in violation of Title VII based on
(i) defendant's transfer of plaintiff from FHMIS to the Operations Bureau;
(ii) denial of equal employment opportunities in training, promotion, and benefits;
(iii) creation of a hostile work environment; and
(iv) disparate treatment.
(2) Count II: Retaliation in violation of Title VII based on
(i) defendant's transfer of plaintiff from FHMIS to the Operations Bureau;
(ii) denial of equal employment opportunities in training, promotion, and benefits;
(iii) creation of a hostile work environment; and
(iv) disparate treatment.
(3) Count III: Violation of the First and Fourteenth Amendments based on
(i) defendant's custom and policy of discrimination; and
(ii) defendant's failure to train employees with respect to plaintiff's rights.
(4) Count IV: Discrimination in violation of the ADA based on
(i) defendant's failure to accommodate plaintiff;
(ii) defendant's transfer of plaintiff from FHMIS to the Operations Bureau;
(iii) denial of equal employment opportunities in training, promotion, and benefits;
(iv) creation of a hostile work environment;
(v) making unlawful inquiries into plaintiff's medical history; and
(vi) disparate treatment.
(5) Count V: Retaliation in violation of the ADA based on
(i) defendant's transfer of plaintiff from FHMIS to the Operations Bureau;
(ii) denial of equal employment opportunities in training, promotion, and benefits;
(iii) creation of a hostile work environment; and
(iv) disparate treatment.

         Common to Counts I, II, IV, and V are claims that defendant violated the law by (i) transferring plaintiff to a new position, (ii) denying equal employment opportunities with respect to training, promotion, and compensation, (iii) creating a hostile work environment, and (iv) engaging in "disparate treatment." In addition, Count IV claims further violations of the ADA through defendant's (i) failure to accommodate plaintiff's disability and (ii) making unlawful inquiries into plaintiff's medical history. Yet, not all of these claims are properly presented here. Two important doctrines - exhaustion of administrative remedies and the statute of limitations - operate to bar certain of plaintiff's claims. Thus, analysis properly begins by identifying which of plaintiff's claims are ripe for adjudication and which of her claims are barred by a failure to exhaust administrative remedies or by the statute of limitations.

         A.

         Both Title VII and the ADA require a plaintiff to exhaust administrative remedies before pursuing litigation in federal court. See Syndor v. Fairfax Cnty., 681 F.3d 591, 593 (4th Cir. 2012) ("[T]he ADA incorporates [Title VII]'s... requirement that a plaintiff must exhaust his administrative remedies by filing a charge with the EEOC before pursuing a suit in federal court."). Nor is this a mere formality; exhaustion is an integral part of the enforcement scheme for these statutes. Specifically, by channeling allegations of discrimination through the EEOC in the first instance, the exhaustion doctrine operates to provide employers with notice of the alleged violations and to allow the EEOC to use administrative conciliation to address and, where appropriate, to remedy any violations more quickly and inexpensively than may be typically accomplished through litigation. See id. Given the important role of the administrative process, courts have understandably and uniformly determined that the scope of a plaintiff's right to sue is limited by the contents of the charge of discrimination filed with the EEOC. See id. (citing Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009)). Thus, the touchstone of the administrative exhaustion analysis is whether the allegations in the complaint are reasonably related to the EEOC charge such that the claims in the complaint "can be expected to follow from a reasonable administrative investigation." Smith v. First Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000). In other words, a claim in a complaint that is not explicitly disclosed in an EEOC charge is nonetheless administratively exhausted if a reasonable administrative investigation would have disclosed the alleged conduct. By contrast, where the factual allegations in the formal lawsuit "reference different time frames, actors, and discriminatory conduct" when compared with the EEOC charge, the claims have not been exhausted. Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005).

         It follows that an EEOC charge of race discrimination cannot support a lawsuit for sex discrimination, nor can an EEOC charge of retaliation support a lawsuit for discriminatory employment practices. Syndor, 681 F.3d at 593. But at the same time, a broad charge of "discrimination in promotion" or "retaliation" may support a subsequent lawsuit based on aspects of a promotional system or retaliatory conduct that differ from that detailed in the EEOC charge. Id. at 594. Although it is appropriate to construe EEOC charges "liberally" because "lawyers do not typically complete the administrative charges, " the fact remains that a plaintiff cannot bring a lawsuit on a claim unless the EEOC charge made it reasonably likely that the EEOC would discover and investigate the claim. See Chacko, 429 F.3d at 509; Syndor, 681 F.3d at 594 (the goal of administrative exhaustion is "to strike a balance between providing notice to employers and the EEOC on the one hand and ensuring plaintiffs are not tripped up over technicalities on the other.").

         As noted supra, plaintiff's Amended Complaint asserts four claims with respect to plaintiff's allegation of discrimination and retaliation in violation of Title VII in Counts I and II: (i) transfer into a new position, (ii) denial of equal employment opportunities in training, promotion, and benefits, (iii) creation of a hostile work environment, and (iv) imposition of "disparate treatment." Am. Comp. ¶¶ 32, 36. In addition to each of the foregoing claims, which also appear in plaintiff's ADA causes of action in Counts IV and V, plaintiff further alleges discrimination in violation of the ADA through (i) defendant's failure to provide a reasonable accommodation for plaintiff's disability[9] and (ii) defendant's making unlawful inquiries into plaintiff's medical history. Am. Comp. ¶ 49.

         Accordingly, to determine whether plaintiff's claims have been properly exhausted, it is necessary to compare plaintiff's allegations in her EEOC charge with the claims asserted in the Amended Complaint. The claims "reasonably related" to the EEOC allegations are administratively exhausted and properly presented here; otherwise, the claims have not been exhausted and are barred from presentation here. On review of the allegations in the EEOC charge and the claims in the Amended Complaint, it is clear that some of plaintiff's claims are exhausted and others are not.

         Plaintiff's EEOC charge of discrimination contains the following allegations:

(1) Beginning in 2006, "supervisors and colleagues commented" that plaintiff was "selected because of [her] race and sex."
(2) Plaintiff was "the only person ever required to take a test... called the Minimum Staffing Qualifications Standard."
(3) In February 2010, plaintiff made an accommodation request "to avoid fire ground operations and hazardous environments, " but her second-level supervisor Chief Barrero instead wanted to transfer plaintiff and "repeatedly threatened and harassed [plaintiff] because of [her] disability."
(4) In August 2013, plaintiff's new second-level supervisor Chief McNamara ordered plaintiff's supervisor to downgrade plaintiff's evaluation "because of [plaintiff's] disability."
(5) In 2014, plaintiff was removed from her position as a Fire Investigator "because of [her] sex, race, disability, and in retaliation for [her] complaints of discrimination."

See Def't Mem. Supp., Ex. 36. Allegation (5) is clearly "reasonable related" to plaintiff's claim in this litigation - in Counts I, II, IV, and V - that she was transferred into a new position as the result of discrimination and retaliation. Similarly, allegations (2) and (4) constitute examples of "disparate" treatment, which plaintiff also claims in Counts I, II, IV, and V. And finally, allegations (1) and (3) may be liberally construed as alleging hostile work environments, which plaintiff once again claims as part of Counts I, II, IV, and V.

         Yet, entirely absent from plaintiff's EEOC charge is any indication that plaintiff was denied "equal employment opportunities" in training, promotion, or compensation as claimed in the Amended Complaint. These claims in the Amended Complaint are not reasonably related to the allegations in the EEOC charge; a reasonable administrative investigation would not have disclosed these claims. As such, these claims are unexhausted and not properly presented here.

         Similarly, the EEOC charge does not encompasses plaintiff's claims for failure to accommodate or making unlawful inquiries into plaintiff's medical records. Although plaintiff's EEOC charge alleges a continuing action of disability discrimination, the only specific reference to a failure to accommodate is mentioned in the context of plaintiff's conflict with Chief Barrero in February 2010. For purposes of this litigation, however, plaintiff's claim of failure to accommodate and making unlawful medical inquiries focus on events occurring in June 2014 and interactions with Phyllis Schwartz from defendant's Human Resources department. Am. Comp. ¶¶ 17-23. Simply put, the EEOC would not be put on notice to investigate these claims in the Amended Complaint, as they focus on timeframes and actors entirely different from the timeframe and actors in the EEOC charge. Cf. Chacko, 429 F.3d at 506 (no administrative exhaustion where the complaint references "different time frames [and] actors" from the EEOC charge). Moreover, plaintiff concedes that she did not file an amendment to the original EEOC charge to include these allegations. See Tr. at 39:22-40:6.

         Nonetheless, plaintiff attempts to save these claims in the present litigation by relying on the "continuing violation" doctrine to argue that these allegations are "reasonably related" to the allegations in the original charge. See id. This argument misunderstands the "continuing violation" doctrine, which has nothing to do with the operation of the exhaustion requirement; rather, the "continuing violation" doctrine addresses the statutory limitations period and "allows for consideration of incidents that occurred outside the time bar when those incidents are part of a single, ongoing pattern of discrimination, i.e., when the incidents make up part of a hostile work environment claim." Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (emphasis added). In short, because the claims in the Amended Complaint focus on timeframes and actors different from the allegations in the EEOC charge, the claims here are not "reasonably related" to the EEOC charge allegations, and plaintiff has not provided any authority to suggest that the "continuing violation" doctrine excuses the duty to amend an EEOC charge (or, perhaps, to file an entirely new charge).

         Accordingly, plaintiff's claims of (i) denial of "equal employment opportunities" with respect to promotion, training, and compensation in violation to Title VII and the ADA that appear in Counts I, II, IV, and V, (ii) failure to accommodate in violation of the ADA that appear in Count IV, and (iii) making improper medical inquiries in violation of the ADA that appear in Count IV, are barred by the doctrine of administrative exhaustion. The only claims that have been properly exhausted are plaintiff's claims with respect to ...


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