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Craft v. Fairfax County Government

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

August 4, 2016

ANTHONY D. CRAFT, Plaintiff,



         This matter is again before the Court on Defendant Fairfax County Government’s (“Defendant” or “Fairfax”) Second Motion to Dismiss. [Dkt. 23] For the following reasons, the Court grants Defendant’s Second Motion to Dismiss and dismisses Plaintiff’s Amended Complaint [Dkt. 22] with prejudice.

         I. Background

         At the motion to dismiss stage, the Court must read the complaint as a whole, construe the complaint in the light most favorable to the plaintiff, and accept the facts alleged in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The facts below are taken from Plaintiff’s Amended Complaint and the attached documents.[1]

         Plaintiff Anthony Craft (“Craft” or “Plaintiff”) was employed by the Fairfax County Fire and Rescue Department (“FRD”) as a firefighter until July 31, 2015. (Am. Compl., ¶¶ 7, 21.) On August 22, 2013, Plaintiff suffered a work related back injury from slipping and falling on a wet boat dock while performing his duties as a firefighter. (Id. at ¶ 8.) On August 30, 2013, Plaintiff visited My Urgent Care, a physician approved by Fairfax County to handle Worker’s Compensation eligible claims. (Id. at ¶ 9.) Plaintiff saw My Urgent Care again on September 6, 2013 for a follow up appointment and to start physical therapy. (Id.) On September 13, 2013, Plaintiff visited Primary Care Physician, “due to persistent back pain and worker’s comp physician recommending Craft back to work ‘light duty no restrictions.’” (Id. at ¶ 10.) Plaintiff alleges that Defendant offers no such light duty for firefighters in his situation. (Id.) Yet Plaintiff also alleges that on October 7, 2013, he “returned to work light duty” in an unspecified role. (Id. at ¶ 11.)

         Around this same time, Plaintiff began a second physical therapy program with Kaiser Permanente that lasted approximately 4-6 weeks. (Id.) On November 5, 2013, Dr. Ian Gordon of Kaiser Permanente recommended that Plaintiff be taken out of work completely due to continued back pain, and scheduled Plaintiff for his first MRI. (Id.) On November 13, 2013, Plaintiff saw Dr. Alan Schreiber, a worker’s compensation physician, and received documents recommending he not work until after the MRI results. (Id. at ¶ 12.) On December 23, 2013, Jaunuary 13, 2014, and February 14, 2014, Plaintiff received epidural injections in his lower back due to a herniated disc between his L4 and L5 vertebrae. (Id.) On April 4, 2014, Plaintiff underwent surgery at Med Star Southern Maryland Hospital to remove the herniated disc. (Id. at ¶ 13.) In May of 2014 Plaintiff began post-operative physical therapy. (Id.)

         On May 19, 2014, Deputy Fire Chief Daniel V. Gray’s office called Plaintiff to Fire Headquarters to discuss his work status. (Id.) At the time of this meeting, Dr. Schrieber had “ordered Plaintiff off work completely.” (Id.) When Plaintiff arrived at FRD Headquarters, he was given a memo with six options to choose from regarding his future employment with Defendant. (Id.) Plaintiff argues that he could have been mailed this memo, and requiring him to come to Fire Headquarters while he was still “ordered off” of work by his physician was “harassment” and “total disregard for the physician’s orders.” (Id.)

         At some point thereafter, Plaintiff was awarded workers’ compensation by the Virginia Workers’ Compensation Commission. (Id. at ¶ 14.) On July 30, 2014, Plaintiff informed Deputy Chief Gray that he would be pursuing referral to the Uniformed Retirement Board (“the Retirement Board”) for service-connected disability retirement. (Id. at ¶ 15.) On August 6, 2014, Plaintiff submitted his formal application for disability retirement with the Fairfax County Retirement Agency (the “Agency”) after Dr. Schreiber stated he could no longer perform the duties of a firefighter. (Id. at ¶ 16.) On August 7, 2014, The Agency sent a memorandum to the Office of Risk Management requesting medical documents relating to Plaintiff’s claim of disability. (Id. at ¶ 17.)

         On April 10, 2015, Plaintiff filed his first charge with the Equal Employment Opportunity Commission (“EEOC”) alleging that delays in processing his retirement application constituted a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) and the Americans with Disability Act, 29 U.S.C. § 623(a)(1) (“ADA”). (Id. at ¶ 18.) Plaintiff now alleges that at the time he submitted this claim he was being subjected to “discrimination, bullying, and harassment” by Defendant’s employees “stalking the plaintiff in front of his home, harassing phone telephone calls by Captain Pete Pullen and others, and humiliation.” (Id.)

         On May 28, 2015, Plaintiff participated in a Functional Capacity Evaluation, the results of which allegedly confirmed Dr. Schreiber’s opinion that Plaintiff could no longer perform the duties of a firefighter. (Id. at ¶ 19.) Plaintiff also requested advance sick leave on May 28, 2015, but his request was denied due to his continuing ability to “perform light level work.” (Id.) On June 26, 2015, Plaintiff received a memorandum via certified letter from Deputy Chief Andrew L. Duke “proposing separation of employment.” (Id. at ¶ 19.) Plaintiff alleges that “despite [Plaintiff] being able to perform light level work, separation of employment was recommended.” (Id.) On July 31, 2015, Plaintiff received a letter from Fire Chief Richard Bowers written on July 23, 2015 that informed him the Chief had “decided to approve your separation as proposed effective at the close of business on Friday, July 31, 2015.” (Id. at ¶ 21.) On September 11, 2015, Plaintiff filed a second EEOC charge alleging retaliatory termination by Defendant.

         In October of 2015 Plaintiff received a letter from the Agency informing him that his case was going before the Retirement Board on October 21, 2015. (Id. at 23.) On October 21, 2015, Plaintiff and his wife arrived at the location for his meeting with the Retirement Board at 10:00 a.m., but his application was not heard for approximately 2 hours. (Id.) Plaintiff now alleges that this was another example of harassment and retaliation. (Id.)

         On December 9, 2015, Plaintiff received a letter from the Agency informing him that the Retirement Board would render a decision on his disability retirement application on December 16, 2015. (Id. at ¶ 24.) On December 17, 2015, Plaintiff was contacted via email by Chris D. Colandene, Deputy Director, Fairfax County Retirement Systems, that the Retirement Board had denied his application for disability retirement. (Id.) Plaintiff contends that being forced to wait until December for the Retirement Board’s decision after his hearing in November is a further example of harassment, bullying, and retaliation for filing his initial EEOC charge. (Id.) On December 28, 2015, Plaintiff sent an email to Chris Colandene informing him of his decision to appeal the Retirement Board’s decision. (Id. at ¶ 25.) There is no indication regarding the status or disposition of that appeal.

         Plaintiff filed this lawsuit on January 27, 2016, after receiving a dismissal and right to sue letter from the EEOC. (Compl., [Dkt. 1].) Plaintiff’s original complaint alleged discrimination in violation of Title VII and wrongful termination and failure to accommodate in violation of the ADA. (Id.) Defendant filed its First Motion to Dismiss on February 26, 2016, and that motion was granted by this Court on April 26, 2016. (See First. Mot. to Dismiss [Dkt. 8]; Mem. Op. of Apr. 26, 2016 [Dkt. 16]; Order of Apr. 26, 2016 [Dkt. 17].) This Court’s Order granting Defendant’s First Motion to Dismiss provided that “Plaintiff shall file an Amended Complaint, if any, no later than May 5, 2016.” (Order of Apr. 26, 2016 at 3.) Plaintiff filed a Motion for Extension of Time on May 5, 2016. (Pl.’s Mot. for Ext. of Time [Dkt. 18].) The Court granted Plaintiff’s Motion for Extension of Time in part, ordering that “Plaintiff is granted an additional 20 days from the date of this order to file an Amended Complaint, if any; Plaintiff shall file an Amended Complaint, if any, no later than May 30, 2016; If Plaintiff fails to file an Amended Complaint by May 30, 2016, his Complaint will be dismissed with prejudice.” (Order of May 10, 2016 [Dkt. 19] at 2-4.) Plaintiff failed to comply with this Order, first filing a Second Motion for Extension of Time on May 27, 2016, and then filing his Amended Complaint on June 2, 2016. (Pl.’s Sec. Mot. for Ext. of Time [Dkt. 21]; Am. Compl.) Plaintiff’s Amended Complaint repeats his claims for failure to accommodate in violation of the ADA, and further alleges retaliation and creation of a hostile work environment in violation of Title VII. (Pl.’s Am. Compl., ¶¶ 27-32.)

         On June 13, 2016, Defendant filed the instant motion, its Second Motion to Dismiss with an attached Roseboro notice to Plaintiff. (Def.’s Sec. Mot. to Dismiss [Dkt. 23].) Plaintiff has failed to file any opposition to Defendant’s Second Motion to Dismiss. Oral argument was heard on July 14, 2016, at which point Plaintiff appeared ...

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