United States District Court, W.D. Virginia, Roanoke Division
E. Conrad, United States District Judge
Branscome filed this action against his former employer, the
Virginia Department of Environmental Quality
("DEQ"), asserting claims of discrimination and
retaliation in violation of the Rehabilitation Act of 1973
("Rehabilitation Act"), 29 U.S.C. § 701 et
secu; the Virginians with Disabilities Act ("VDA"),
Va. Code § 51.5-1 et seq.; and Virginia common
law. The case is presently before the court on DEQ's
partial motion to dismiss. For the reasons that follow, the
court will grant the motion.
following facts, taken from the plaintiffs complaint, are
accepted as true for purposes of the defendant's motion
to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) ("[W]hen ruling on a defendant's motion to
dismiss, a judge must accept as true all of the factual
allegations contained in the complaint.").
December of 2014, Branscome was hired to work as a Solid
Waste Compliance Inspector at DEQ's Blue Ridge Regional
Office in Roanoke, Virginia. In that position, Branscome was
supervised by Aziz Farahmand and Rebecca Wright.
claims that he is disabled as a result of Attention Deficit
Hyperactivity Disorder ("ADHD"), which affects his
ability to maintain focus and concentration, organize tasks,
communicate, and engage in critical and/or analytical
thinking. After requesting accommodations for his disability,
Branscome met with Farahmand and Wright on February 25, 2016.
During the meeting, Branscome advised the supervisors of his
disability and requested more specific direction on goals and
objectives applicable to his position. Branscome summed up
his request for accommodation by asking Farahmand and Wright
to "[p]ut it in black and white" and "[t]ell
[him] what to do." Compl. ¶ 15, Docket No. 1-1.
Branscome claims that neither Farahmand nor Wright
"offer[ed] any sort of accommodation" or
"engage[d] in the interactive process by which a correct
accommodation could be determined." Id. ¶
following month, Branscome contacted Farahmand via email and
requested permission to travel to a worksite directly from
his residence instead of stopping by the Roanoke office
first. Although similar requests from other employees had
been granted, Farahmand denied Branscome's request and
directed him to proceed to the Roanoke office prior to
heading to the worksite.
spring of 2016, after being reprimanded on several occasions
for the manner in which he was filling out timesheets,
Branscome asked Farahmand for a copy of a completed timesheet
to use as an example. Branscome alleges that Farahmand
"denied this very reasonable request for an
accommodation." Id. ¶ 25.
of 2016, Branscome asked Farahmand whether he should enroll
in a technical writing course to improve his writing skills.
Farahmand advised Branscome that it was not necessary for
Branscome to enroll in any class.
alleges that he was repeatedly accused of performing poorly
at work, even though his work performance met the legitimate
needs of his employer. Alternatively, to the extent his
performance did not meet expectations, Branscome claims that
he could have met the legitimate expectations of his employer
if he had been afforded reasonable accommodations for his
disability. Branscome alleges that his employment was
wrongfully terminated on June 21, 2017.
16, 2017, Branscome filed the instant action against DEQ in
the Circuit Court for the City of Roanoke. In Count I,
Branscome claims that he was subjected to disability
discrimination in violation of the Rehabilitation Act. In
Count II, Branscome alleges that he was subj ected to
retaliation in violation of the Rehabilitation Act. In Count
III, Branscome claims that DEQ violated the Rehabilitation
Act by failing to accommodate his disability. In Count IV,
Branscome alleges that the DEQ wrongfully terminated him in
violation of public policies expressed in the VDA. In Counts
V through VII, Branscome asserts claims of discrimination,
retaliation, and failure to accommodate under the VDA.
removing the case to this court on the basis of federal
question jurisdiction, DEQ filed the instant motion for
partial dismissal. DEQ seeks dismissal of Count III on the
basis that the claims of failure to accommodate are barred by
the applicable one-year period of limitation. DEQ seeks
dismissal of Count IV on the basis that the Virginia General
Assembly abrogated the common law such that no plaintiff may
bring a claim of wrongful discharge based on a public policy
that is also reflected in the Virginia Human Rights Act, Va.
Code § 2.2-3900 et seq. Finally, DEQ has moved
to dismiss the VDA claims asserted in Counts V through VII on
the basis that the department is covered by the
response to the motion to dismiss, Branscome acknowledges
that the VDA claims are subject to dismissal. See
Va. Code § 51.5-41(F) ("This section shall not
apply to employers covered by the federal Rehabilitation Act