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Branscome v. Virginia Department of Environmental Quality

United States District Court, W.D. Virginia, Roanoke Division

October 30, 2017

CHRISTOPHER BRANSCOME, Plaintiff,
v.
VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY, Defendant.

          MEMORANDUM OPINION

          Glen E. Conrad, United States District Judge

         Christopher 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.

         Background

         The 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.").

         In 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.

         Branscome 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. ¶ 19.

         The 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.

         In late 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.

         In May 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.

         Branscome 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.

         Procedural History

         On June 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.

         After 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 Rehabilitation Act.

         In response to the motion to dismiss, Branscome acknowledges that the VDA claims are subject to dismissal. See Va. Code ยง 51.5-41(F) ("This section shall not apply to employers covered by the federal Rehabilitation Act of ...


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