United States District Court, E.D. Virginia, Richmond Division
REGINA H. GORDON, pro se Plaintiff,
CITY OF EMPORIA, et al, Defendants.
REPORT AND RECOMMENDATION
J, NOVAK UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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. (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.)
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.)
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").)
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.)
February 25, 2015, Plaintiff submitted another note from her
doctor requesting that she work part-time or "risk
serious injury." (Am. Compl. at 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.)
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
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
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.)
commenced this action on July 13, 2016, and she filed her
Amended Complaint on February 9, 2017. (ECF No. 1; Am.
STANDARD OF REVIEW
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.
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