United States District Court, E.D. Virginia, Alexandria Division
January 5, 2017
Tanyon Watson, Plaintiff,
Virginia Department for Aging & Vocational Rehabilitation Services, et al.,
matter comes before the Court on Defendants Virginia
Department for Aging and Rehabilitative Services
("DARS"), Teresa Bertsch, Carrie Gilbert, Douglas
James and Davian Morrell ("Individual Defendants")
(collectively "Commonwealth Defendants") Motion to
Dismiss for lack of subject matter jurisdiction and failure
to state a claim, Dkt. Nos. 9, 10; as well as Defendant Julie
Triplett's Motion to Dismiss for failure to state a
claim. Dkt. No. 7. Plaintiff, Tanyon Watson, represents
himself pro se in this matter. For the reasons stated below,
Defendants' Motion to Dismiss for lack of subject matter
jurisdiction is GRANTED, Defendants' Motions to Dismiss
for Failure to State a Claim are DENIED AS MOOT; and
Plaintiffs Complaint is DISMISSED WITH PREJUDICE. Plaintiffs
claims under Title II of the Americans with Disabilities Act
and Section 504 of the Rehabilitation Act of 1973 are barred
by the one-year statute of limitations for such actions.
Tanyon Watson suffers from dyslexia and attention-deficit
disorder/hyperactivity ("ADHD"). Because of these
learning disabilities, Plaintiff has struggled throughout his
life in traditional educational environments. Notably,
Plaintiff graduated from Herndon High School in 1977 at age
22. His post-secondary education was limited to some classes
at Northern Virginia Community College. While the learning
disabilities make paper and pencil work difficult, Plaintiff
has a record of performing at a comparatively higher level in
hands-on coursework. Consequently, Plaintiff has explored the
possibility of pursuing a career as a certified personal
pursue his career goals, Plaintiff applied for vocational
rehabilitation services with Virginia Department for Aging
and Rehabilitative Services ("DARS" or "the
Agency") in either 2007 or 2009. Plaintiff advised DARS of
his goal of becoming a personal trainer and the organization
took a number of steps to support him. Among other forms of
assistance, DARS referred Plaintiff to a specialist for a
Learning Needs Assessment Report. Through the consultation,
the specialist identified studying techniques which might
benefit Plaintiff and also recommended tutoring sessions. In
addition, a DARS counselor, Defendant Carrie Gilbert,
assisted Plaintiff in identifying work goals in an Individual
Plan of Employment ("IPE") which was updated on an
annual basis. The IPE was revised on numerous occasions in
response to Plaintiffs health issues and his desire to pursue
a job prospect as a security guard. During this time,
Plaintiff repeatedly participated in fitness certification
programs but was unsuccessful in passing any required written
tests. In March 2014, Plaintiff requested a new counselor,
and Defendant Davian Morrell took responsibility for
Plaintiffs case. In a meeting with Plaintiff on June 25,
2014, Defendant Morrell advised Plaintiff that he should
consider other career opportunities because of his inability
to succeed in his goal of becoming a personal trainer.
Specifically, Defendant Morrell advised that DARS would not
pay for Plaintiff to receive training from the National
Personal Training Institute because the program was a diploma
and not a certification (thus a written-test based
certification would still be required); Plaintiff was unable
to succeed on previous attempts to pass required personal
trainer coursework; and Plaintiff suffered back issues which
Defendant Morrell believed would limit his ability to work in
the personal training industry.
objected to these findings and requested a formal written
notice of the DARS decision. The requested written notice was
provided to him on August 4, 2014. Thereafter, Plaintiff
explored further administrative remedies. Plaintiff does not
specify the dates of these administrative proceedings but the
dates can be gleaned from the exhibits attached to the
Complaint and from Defendants' statements of facts.
Plaintiff requested and obtained an administrative hearing
with a hearing officer from DARS on November 18, 2014. Dkt.
No. 1, Exh. 2, at 31; Exh. 3-6. An undated and unattributed
"Administrative Review for Tanyon Watson vs. Dars"
is attached to the Complaint and encourages reconsideration
of the agency decision based in part on the audio from the
November 18, 2014 hearing. See Dkt. No. 1, Exh. 6,
at 2. The Review is a piece of advocacy but it is unclear to
whom it was directed. Separately, Plaintiff requested
reconsideration by DARS on February 12, 2015. Dkt. No. 1,
Exh. 6, at 13. The Agency filed a rebuttal to Plaintiffs
request for reconsideration on February 20, 2015.
Id. On March 13, 2015, the Commissioner of DARS
issued a final affirmation of the original agency finding.
Dkt. No. 1, Exh. 6, at 16. Having obtained no relief through
direct appeals to the Agency, Plaintiff contacted the Office
of Civil Rights for the U.S. Department of Education alleging
that DARS had violated its duties under Section 504 when it
denied the request to participate in the NPTI program and
denied a request for a copy of the transcript from the
November 18, 2014 hearing. Dkt. No. 1, Exh. 6, at 20. The
Office of Civil Rights noted that Plaintiffs complaint was
sent on August, 14, 2015. Id. The Office issued its
findings on February 10, 2016, and found no evidence of
violations by DARS. See Dkt. No. 1, Exh. 6, at 20,
24-25. Plaintiff also submitted as an exhibit an email from
Plaintiffs account to an unidentified "department"
asking for assistance in looking into Plaintiffs complaints
against DARS. Dkt. No. 1, Exh. 6, at 18. The email is dated
March 16, 2015 and the recipient is not apparent on the face
of the document. Id. Plaintiff filed the Complaint
pro se with the Court on August 4, 2016. Defendants have
moved to dismiss for lack of subject matter jurisdiction and
for failure to state a claim. Plaintiff has replied to the
motions. The matter is now ripe for adjudication.
Rule of Civil Procedure 12(b)(1) permits the defendant to
move for dismissal of a claim when the court lacks subject
matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The court must
dismiss the action if it determines at any time that it lacks
subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3). Plaintiff
bears the burden to establish that subject matter
jurisdiction exists. See Evans v. B.F. Perkins Co.,
166 F.3d 642, 647 (4th Cir. 1999). A district court should
grant a Rule 12(b)(1) motion if the material jurisdictional
facts are known and the moving party is entitled to prevail
as a matter of law. See Richmond, Fredericksburg &
Potomac R.R. Co. v. United States, 945 F.2d 765, 768
(4th Cir. 1991).
filed by pro se plaintiffs are liberally construed. See
Haines v. Kerner, 404 U.S. 519, 520 (1972).
"However inartfully pleaded by a pro se plaintiff,
allegations are sufficient to call for an opportunity to
offer supporting evidence unless it is beyond doubt that the
plaintiff can prove no set of facts entitling him to
relief." Thompson v. Echols, No. 99-6304, 1999
WL 717280 (4th Cir.1999) (citing Cruz v. Beto, 405
U.S. 319 (1972)). Thus, if a pro se complaint contains
potentially cognizable claims, the plaintiff should be
allowed to particularize those claims. Id. (citing
Beaudett v. City of Hampton, 775 F.2d 1274 (4th
Cir.1985); Coleman v. Peyton, 340 F.2d 603, 604 (4th
Section 504 nor Title II causes of action include a
statutorily mandated statute of limitations. Where a statute
does not provide a statute of limitations, the Court draws
from analogous state law statutes of limitations. See
Wilson v. Garcia, 471 U.S. 261 (1985). Claims brought
under Section 504 in Virginia are subject to the one year
statute of limitations imposed by the Virginia Rights of
Persons with Disabilities Act. Wolsky v. Med. Coll. of
Hampton Rds., 1 F.3d 222 (4th Cir. 1993). The same
statute of limitations applies to claims brought under Title
II of the Americans with Disabilities Act. A Soc'y
Without A Name v. Virginia, 655 F.3d 342, 348 (4th Cir.
2011) ("the one-year limitations period in the Virginia
Disabilities Act applies to ADA claims brought in
Virginia."). For both of these causes of action,
"[t]he applicable statute of limitations begins to run
once a claim accrues." Id.
has brought claims pursuant to Section 504 and Title II and
these claims are governed by the one year statute of
limitations. Therefore, to determine if Plaintiff has filed
within the statute of limitations, the Court must determine
the date on which the claims accrued.
civil rights claim accrues when the plaintiff knows or has
reason to know of the injury which is the basis of the
action." Id. "[A] cause of action accrues
when the plaintiff possesses sufficient facts about the harm
done to him that reasonable inquiry will reveal his cause of
action." Nasim v. Warden, Maryland House of
Correction, 64 F.3d 951, 955 (4th Cir. 1995). "Once
imputed with that knowledge, the plaintiff is on inquiry
notice, imposing on him a duty to inquire about the details
of [his claim] that are reasonably discoverable. To excuse
him from promptly [making inquiry] by postponing the accrual
of his claim would undermine the purpose of the limitations
statute." Id. (quotations and citations
omitted). In the context of Section 504 and Title II claims,
the cause of action accrues when the plaintiff discusses the
conduct giving rise to the discrimination with the defendant,
or at the latest, when the plaintiff receives a formal
written document which outlines the facts underpinning the
alleged discrimination. See Guerrero v. Weeks, 2013
WL 5234248, at *4 (E.D. Va. Sept. 16, 2013), affd,
555 F.App'x 264 (4th Cir. 2014).
facts and findings in Guerrero are instructive for
this case. In Guerrero, the plaintiff filed a civil
rights action against the truancy officer for a local public
school alleging that the defendant fabricated a truancy
summons for plaintiffs nephew, upon die service of which, an
altercation ensued between the plaintiff and police.
Id. at *1. The plaintiff met with the defendant and
school officials to discuss the allegedly illegal truancy
summons in 2007. Id. at *4. The court found that the
statute of limitations for Section 504 and Title II claims
ought to have run from that date. Id. Nevertheless,
the court found that at the statute of limitations began to
run at the latest in 2009 when the plaintiff received a copy
of the alleged illegal truancy summons. Id. On
either date, "[p]laintiff was aware of her alleged
injury and the parties involved". Id.
Therefore, the causes of action did not satisfy the one year
statute of limitations applied in Virginia. Id.
claim accrual in this case mirrors Guerrero.
Plaintiff received a letter from Defendant Morrell on August
4, 2014, denying his request for support for training to the
NPTI. The letter from Defendant, like the letter in
Guerrero, advised the recipient of an administrative
decision. See Id. at *1; see also Dkt. No.
1, Exh. 22 at 22-23 ("you have requested a letter
explaining the rationale for not providing support for
training.. .there is substantial evidence that this goal is
no longer one DARS can support.")- The decision affected
the rights of the Plaintiff, in much the same way that the
letter in Guerrero affected the rights of the nephew
represented by his aunt in the litigation. See
Guerrero, 2013 WL 5234248, at *1. And while unstated in
the Guerrero decision, the court assumed for the
sake of reviewing the statute of limitations, that the
discrimination of the truancy letter was based on a
disability. See Id. at *4. In this respect, the case
at bar more clearly illustrates the date the case accrued
because the letter indisputably advised Plaintiff that he was
denied the rights because of his disability-in this case his
inability to pass required personal trainer testing with
academic support and testing accommodations. See
Dkt. No. 1, Exh. 2 at 22-23 ("Despite your best efforts,
even with tutoring, you still were not successful in passing
the certification exam. Specifically regarding 'other
suitable options' it's increasingly clear there are
no other options if your goal continues to be a Personal
Trainer."). At this point, Plaintiff was aware of each
of the facts necessary to plead a claim under Section 504 or
Title II: (1) knowledge of his disability; (2) a denial of
the use of public services, in this case the support of the
DARS in pursuing the NPTI training; and (3) that the denial
was based on his disability.
concedes the notice date in the Complaint, observing that
"The Virginia Department of Aging & Vocational
Rehabilitation Services (DARS) violated TW 504 rights when
his assigned counselor Davian Morrell, verbally denied TW
funded services on June 25, 2014, ...TW did not receive the
written denial from DM until August 4, 2014." Dkt. No.
1, at 1. Here too, the facts mirror Guerrero.
Plaintiff was likely on notice of all facts necessary to
plead a claim after the verbal denial on June 25, 2014.
See Dkt. No 1, at 1. But even if the verbal notice
was insufficient, the letter sent on August 4, 2014 provided
sufficient information for Plaintiff to bring his claim for a
violation of Section 504 and Title II.
has not responded to Defendants' argument that he is
barred by the statute of limitations but he may be inclined
to argue that the statute of limitations should have been
tolled during the time that Plaintiff pursued administrative
remedies before filing the Complaint. But whatever
administrative remedies Plaintiff sought, "non-federal
employees need not exhaust administrative remedies before
bringing a private action under Section 504 of the
Rehabilitation Act...[and] Title II of the ADA likewise does
not require exhaustion prior to bringing suit."
Lucas v. Henrico Cty. Sch. Bd, 822 F.Supp.2d 589,
603-604 (E.D. Va. 2011); see also Thompson v. Virginia
Dep't of Game & Inland Fisheries, 2006 WL
1310363, at *4 (W.D. Va. May 14, 2006), affd, 196
F.App'x 164 (4th Cir. 2006) ("claims involving
public services arising under Title II of the ADA and §
504 of the Rehabilitation Act do not require that plaintiffs
exhaust their administrative remedies prior to filing
suit."); Grubbs v. Med. Facilities of Am.,
Inc., No. 94-0009-D, 1994 WL 791708, *1 (W.D. Va. Sept.
23, 1994) (holding there is no exhaustion requirement under
Title III of the ADA or the Rehabilitation Act).
there is no exhaustion requirement for Section 504 or Title
II claims, Plaintiff was free to file a complaint with the
Court at any time. The tradeoff for this right to file
notwithstanding the administrative process is that the
statute of limitations ran from the date that Plaintiff was
aware of the alleged violation of his rights. Whether the
date on which the statute of limitations runs is the verbal
discussion with Morrell on June 25, 2014; the written DARS
decision on August 4, 2014; the formal hearing on November
18, 2014; or the final decision of the DARS Commissioner on
March 13, 2015; Plaintiff still failed to meet the one year
statute of limitations when he filed the Complaint on August
4, 2016. As a result, the Court lacks jurisdiction over the
Complaint and it must be dismissed with prejudice.
foregoing reasons, the Court finds thai Defendants'
Motion to Dismiss for Lack of Jurisdiction, Dkt. No. 9, is
GRANTED. Defendants' Motions to Dismiss for Failure to
State a Claim, Dkt. Nos. 7, 10, are DENIED AS MOOT.
Plaintiffs Complaint, Dkt. No. 1, is DISMISSED WITH
PREJUDICE. An appropriate order shall follow.
 Reading all factual assertions in
favor of the Plaintiff, he began receiving services in 2007.
The official report from the Office of Civil Rights of the
Department of Education (included as an attachment to
Plaintiffs Complaint) found that services commenced in 2009.
The precise date is immaterial to the issue before the