United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendants' Motion to
Dismiss Plaintiff's Original Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6).
Richardson ("Plaintiff") was employed as a police
officer with the Prince William County Police Department
until April 1, 2009, when he was fired, allegedly for lying
and using excessive force on a prisoner. That same day,
Plaintiff filed a charge with the EEOC. Two months later, on
June 19, 2009, Plaintiff filed an amended charge with the
EEOC alleging that he was discriminated against based on his
race and was subject to retaliation.
December 17, 2009, the EEOC issued a right-to-sue letter to
Plaintiff. Plaintiff did not file suit within the required 90
day time period. On March 22, 2017 Plaintiff again filed a
charge with the EEOC in what he classifies as an
"appeal" of the 2009 EEOC determination. The EEOC
issued a right-to-sue letter for the second charge on April
5, 2017. On July 6, 2017 Plaintiff filed suit in this Court.
complaint, Plaintiff presented seventeen counts. The
seventeen causes of action interchangeably allege violations
of Title VII, Americans with Disabilities
Act ("ADA"), 42 U.S.C. § 1981(a), 42 U.S.C.
§§ 1983-1986, VA Code § 2.2-3900, VA Code
§ 2.2-3011, torts of defamation, libel, slander, VA Code
§ 8.01-46.1, VA Code § 9.1 - 500, and intentional
infliction of emotional distress. There is considerable
overlap and repetition between the counts. For clarity's
sake, rather than address each count separately the Court
will address the various laws Plaintiff alleges were
motion to dismiss tests the sufficiency of the complaint.
See Republican Party of N.C. v. Martin, 980 F.2d
943, 952 (4th Cir. 1992). In a Rule 12(b)(6) motion to
dismiss, the court must accept all well-pled facts as true
and construe those facts in the light most favorable to the
plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The complaint must provide a short and plain
statement showing that the pleader is entitled to relief,
Fed.R.Civ.P. 8(a)(2), and it must state a plausible claim for
relief to survive a motion to dismiss, Iqbal, 556
U.S. at 679. The court should dismiss the case if the
complaint does not state a plausible claim for relief.
Bell Atl. Corp. v. Twornbly, 550 U.S. 544, 570
for claims under Title VII and the ADA (Counts 1-8), the
Court finds that Plaintiff has not presented a plausible
claim for relief. Under both Title VII and the ADA, only
employers and not individuals can be held liable. Baird
v. Rose, 192 F.3d 462, 472 (4th Cir. 1999) ("we
have expressly held that Title VII does not provide a remedy
against individual defendants who do not qualify as
'employers'" . . . "the ADA does not permit
an action against individual defendants for retaliation for
conduct protected by the ADA"). Plaintiff has not
alleged that the individual defendants are employers in
accordance with either Title VII or the ADA. Accordingly, all
Title VII and ADA claims against the individual defendants
the County, a prerequisite to bringing a claim under Title
VII and the ADA is that the plaintiff received a right-to-sue
letter from the EEOC. Davis v. North Carolina
Depft of Corrections, 48 F.3d 134, 140
(4th Cir. 1995). Plaintiff filed two complaints
with the EEOC, one in 2009 and one in 2017, to which he
received right-to-sue letters on both. However, the claims
based on both of these EEOC complaints are time barred.
EEOC issued the right-to-sue letter for the 2009 complaint on
December 17, 2009. Plaintiff failed to file a complaint
within the strict ninety day timeframe and the Court does not
find any waiver, estoppel, or equitable tolling is applicable
here. Davis v. Navy Fed. Credit Union, 2012 U.S.
Dist. LEXIS 2649, *14 (E.D.Va. 2012) ("this ninety-day
time period has been strictly construed and, absent, waiver,
estoppel, or equitable tolling, a lawsuit filed in excess of
the ninety-day period will be dismissed"). Thus, all of
the claims related to the 2009 charge are dismissed.
claims contained in the 2017 EEOC complaint, and the
subsequent complaint filed in this Court, relate to events
that occurred after 2009. In order to state a claim under
Title VII for race based harassment, the plaintiff must
allege that the harassment was sufficiently severe or
pervasive to alter the terms and conditions of
plaintiff's employment and create an abusive atmosphere.
Jones v. HCA (Hosp. Corp. of Am.), 16 F.Supp.3d 622,
629 (E.D. Va. Apr. 21, 2014) citing Bass v. E.I. Dupont
de Nemours & Co., 324 F.3d 761 (4th Cir.
Mar. 26, 2003). Here, the Plaintiff cannot sufficiently
allege workplace harassment and alteration to his terms of
employment, because Defendants did not employ him after 2009.
the retaliation claims stated in the 2017 charge were not
timely filed. Plaintiff alleges in the Complaint that the
alleged false statements by his previous employer took place
in 2010, but he did not file a complaint until 2017 - far
exceeding the 180 day deadline. For these reasons, Counts 1-8
to Counts 9-10, Plaintiff alleges constitutional violations
under 42 U.S.C. § 1983. As the Supreme Court and Fourth
Circuit have determined, the appropriate statute of
limitations period for a Section 1983 claim is borrowed from
state law. Rancho Palos Verdes v. Abrams, 544 U.S.
113, 123 n.5, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). Based
on Virginia's statute of limitations, a plaintiff must
bring a Section 1983 claim within two years of when the claim
accrues. A Soc' y Without A Name v. Virginia,
655 F.3d 342, 348 (4th Cir. 2011). The alleged
events relating to the § 1983 claim occurred in 2009,
far exceeding the two year statute of limitations.
Accordingly, Counts 9-10 fail to state a claim for which
relief can be granted.
11 alleges violations of 42 U.S.C. § 1985 and §
1986. Plaintiff alleges generally that Defendants conspired
to interfere with his federal rights. Claims brought under 42
U.S.C. § 1985 are subject to a two year statute of
limitations. Harris v. Obenshain, 452 F.Supp. 1172,
1176 (E.D. Va. May 12, 1978). All of the alleged events
supporting the § 1985 claim occurred in 2008-2009. A
claim for damages under 42 U.S.C. § 1986 is predicated
on the existence of a claim under § 1985. Trerice v.
Summons, 755 F.2d 1081, 1085 (4th Cir. 1985).
Accordingly, Count 11 also fails.
12 alleges a violation of the Virginia Human Rights Act
("VHRA"). The VHRA only applies to employers who
have more than five, but fewer than fifteen employees.
Virginia Code § 2.2-3903 (B). None of the individual
defendants are employers, nor does Plaintiff allege that they
are. Further, this Court takes judicial notice that Defendant