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Gordon v. City of Emporia

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

December 18, 2017

REGINA H. GORDON, pro se Plaintiff,
v.
CITY OF EMPORIA, et al, Defendants.

          REPORT AND RECOMMENDATION

          DAVID J, NOVAK UNITED STATES MAGISTRATE JUDGE

         Plaintiff Regina H. Gordon ("Plaintiff), proceeding pro se, brings this wrongful termination action against the following defendants: the City of Emporia ("Emporia"); Brian Thrower, City Manager of Emporia ("Thrower"); Nancy Turner, Supervisor of the Emporia Family Violence and Sexual Assault Unit ("Turner"); F. Woodrow Harris, Director of Probation Services for Emporia ("Harris"); and, Mary Person, Mayor of Emporia ("Person") (collectively, "Defendants"). Plaintiff alleges that Defendants discriminated against her by failing to accommodate her disability and unlawfully terminated her employment with Emporia in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 el seq. (the "ADA"). Plaintiff seeks monetary damages for her wrongful discharge and for the pain, suffering and emotional distress that she has suffered as a result.

         This matter comes before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on Defendants' Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 7.) For the reasons set forth below, the Court recommends that Defendants' Motion to Dismiss be GRANTED.

         I. BACKGROUND

         When resolving a motion for judgment on the pleadings, the Court construes the allegations in favor of the non-moving party. Fed.R.Civ.P. 12(c); Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 591 (4th Cir. 2004). Accordingly, for the purpose of resolving Defendants' Motion, the Court finds the relevant facts as follows.

         On April 25, 2011, Plaintiff began working for the City of Emporia as a community service worker in the Family Violence Sexual Assault Unit. (Am. Compl. (ECF No. 3) at 2; Ex. 1 to Am. Compl.[1] (ECF No. 3-1 at 2) ("Job Description").) This full-time position required Plaintiff to work forty (40) hours per week and to provide emergency crisis services to domestic violence victims "on a 24 hour as needed basis." (Am. Compl. at 2; Job Description.) In November 2011, while walking on a sidewalk, Plaintiff was hit by a car and suffered injuries that required her to undergo two surgeries and continued medical treatment. (Am. Compl. at 2.)

         According to Plaintiff, she met "no harsh working conditions" until March 2013. (Am. Compl. at 2.) At that time, Turner, Plaintiffs supervisor, asked Plaintiff to provide a doctor's note to substantiate her claim that she could not climb stairs. (Am. Compl. at 2.) Turner also denied Plaintiffs request for reimbursement for her mileage commuting to and from work. (Am. Compl. at 4; Ex. 2 to Am. Compl. (ECF No. 3-1 at 3) ("Turner Email").) Harris, Emporia's Director of Probation Services, had previously approved mileage reimbursement for Plaintiff, but Turner described any past repayments as "an oversight." (Am. Compl. at 4; Turner Email.)

         On October 30, 2013, Plaintiff first sent a request and accompanying doctor's note to Turner, seeking a reduced work schedule of thirty-six (36) hours every other week.. (Am. Compl. at 3; Ex. 4 to Am. Compl. (ECF No. 3-1 at 10) ("Dr. Condecido's October 30, 2013 Letter").) Turner forwarded Plaintiffs request to Thrower, the city manager, who denied the request by letter dated December 3, 2013. (Am. Compl. at 3; Ex. 1 (ECF No. 9-1) ("Thrower's Letter") to PL's Opp'n to Defs.' Mot. to Dismiss (ECF No. 9) ("PL's Opp'n").) In his letter, Thrower informed Plaintiff that (1) she had exhausted her leave under the Family and Medical Leave Act ("FMLA"); (2) Emporia had received a letter from VCU Medical Center dated November 8, 2013, stating that Plaintiff could return to work with no restrictions; and, (3) if she did not provide additional documentation to support her request, she could be terminated by December 20, 2013. (Am. Compl. at 3; Thrower's Letter at 1-2.) Plaintiff resumed working forty hours per week on November 29, 2013 with another doctor's note stating that she could work full-time. (Am. Compl. at 3; Ex. 5 to Am. Compl. (ECF No. 3-1 at 11) ("Dr. Condecido's November 29, 2013 Letter").)

         Around the same time in late 2013, Turner began requiring Plaintiff to call in when she arrived to or left a worksite, and she instructed Plaintiff not to consult with victims during her lunch break. (Am. Compl. at 2; Ex. 6 to Am. Compl. (ECF No. 3-1 at 12) ("November 26, 2013 List").) Turner did not impose these "new procedures" on anyone else. (Am. Compl. at 2.) After receiving the new procedures, Plaintiff met with Mayor Person and alleged that she had endured discrimination from Turner, Thrower and Harris. (Am. Compl. at 4.) Person asked Plaintiff for documentation of the alleged discrimination and encouraged her to file a complaint with the Equal Employment Opportunity Commission ("EEOC"). (Am. Compl. at 4.) Plaintiff did not file with the EEOC at that time, and she heard nothing further from Person. (Am. Compl. at4.)[2]

         On February 25, 2015, Plaintiff submitted another note from her doctor requesting that she work part-time or "risk serious injury." (Am. Compl. at 3.)[3] Turner and Thrower granted Plaintiffs request, and she began working twenty-four (24) hours per week. (Am. Compl. at 3.) However, Turner and Thrower continued to harass Plaintiff about her work schedule until her termination. (Am. Compl. at 3.) On June 3, 2015, Plaintiff met with Turner and Thrower to discuss her reduced work schedule. (Am. Compl. at 3.) During the meeting, Thrower explained that Plaintiff had again exhausted her FMLA leave, but that "they would try to find a way to accommodate" Plaintiff. (Am. Compl. at 3.)

         Evidently they did not find such a way, because, on July 28, 2015, Plaintiff filed a charge of discrimination with the EEOC, alleging that Emporia would no longer accommodate her request to work part-time. (Am. Compl. at 3, 5; Ex. 2 to Br. in Supp. of Defs.' Mot. to Dismiss (ECF No. 8-2) ("EEOC Charge").) The EEOC responded to Plaintiff by letter stating that Plaintiffs request placed "an 'undue hardship' on the City of Emporia." (Am. Compl. at 5.)[4]

         On August 7, 2015, Emporia requested additional documentation about Plaintiffs estimated time of recovery, anticipated treatments and appointments, as well as other information relating to her "medical conditions as it relate[d] to [her] employment status . ..." (Am. Compl. at 4.) At that time, Emporia notified Plaintiff that failure to provide the requested information could result in denial of leave and disciplinary action, including termination. (Am. Compl. at 4.)

         By letter dated August 24, 2015, Emporia terminated Plaintiffs employment. (Am. Compl. at 4; Ex. 10 to Am. Compl. (ECF No. 3-1 at 16) ("Letter of Termination").) In the Letter of Termination, Thrower explained that Plaintiff had exhausted her FMLA leave and had not been released to work a full-time forty-hour workweek by her doctor. (Am. Compl. at 4; Letter of Termination.) In June 2016, Plaintiff contacted Person asking whether she knew of Plaintiff s discharge. (Am. Compl. at 4.) Person stated that she knew that Plaintiff had exhausted her leave, and that she would look into the matter. (Am. Compl. at 4.) Plaintiff did not hear from Person again. (Am. Compl. at 4.)

         Plaintiff commenced this action on July 13, 2016, and she filed her Amended Complaint on February 9, 2017. (ECF No. 1; Am. Compl.)

         II. STANDARD OF REVIEW

         A motion made pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges a court's jurisdiction over the subject matter of the complaint. If a defendant contends that the "complaint simply fails to allege facts upon which subject matter jurisdiction can be based, " all facts in the complaint are presumed true. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). Alternatively, if the defendant argues that the jurisdictional facts in the complaint are untrue, the Court "may go beyond the allegations of the complaint... [to] determine if there are facts to support the jurisdictional allegations." Kerns, 585 F.3d at 192 (quoting Adams, 697 F.2d at 1219). Consideration of evidence outside of the pleadings does not necessarily convert the motion to one for summary judgment. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (citing Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)). In either case, the plaintiff bears the burden of proof to establish jurisdiction. Richmond, Fredericksburg, & Potomac R. Co., 945 F.2d at 768.

         "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin,980 F.2d 943, 952 (4th Cir. 1992) (citation omitted). The Federal Rules of Civil Procedure "require[] only 'a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Ail. Corp. v. Twombly,550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,355 U.S. 41, 47 (1957)). A complaint need not assert "detailed factual allegations, " but must contain "more than labels and conclusions" or "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Thus, the "[f]actual allegations must be ...


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