United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Senior United States District Judge
Marie Via filed this action against Communications
Corporation of America, Inc. (CCA) and Steven R. Fisher,
asserting claims under the Americans with Disabilities Act of
1990 (ADA), 42 U.S.C. §§ 12101-12213, and Virginia
law. The case is presently before the court on the
defendants' partial motion to dismiss the second amended
complaint. For the reasons set forth below, the motion will
be granted in part and denied in part.
following factual allegations, taken from the second amended
complaint, are accepted as true for purposes of the pending
motion. 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.").
a Virginia corporation engaged in the business of producing
and issuing mass mailing campaigns. Fisher is the president
of CCA. He maintains final decisionmaking authority over the
hiring and firing of the company's managerial employees.
her wife, S. Gail Morris, are former employees of CCA. Via
began working for CCA in 1983 and eventually held several
managerial roles. Morris most recently served as a data
February of 2016, Via was diagnosed with fibromyalgia and
major depressive disorder. Her rheumatologist recommended
that she take between one and three months off from work to
address her symptoms. By letter dated February 25, 2016, CCA
granted Via twelve weeks of leave under the Family and
Medical Leave Act (FMLA). The letter indicated that Via was
expected to return to work on May 9, 2016.
on medical leave, Via responded to all of CCA's requests
for updates on her conditions. Via advised Fisher that she
wanted to eventually return to work. Fisher assured Via that
her position would remain available even if she were unable
to return immediately following the expiration of her FMLA
April 26, 2016, Via's psychologist opined that she would
not be ready to return to work on May 9, 2016. That same day,
the psychologist issued a notice to that effect. On May 3,
2016, Via's family physician issued a similar notice.
Both notices recommended that Via remain on medical leave for
an additional eight-week period.
6, 2016, Via met with Fisher and Kelli Drumgoole, CCA's
human resources director. Via advised them that her health
care providers had recommended that she remain on leave
through the beginning of July. At the conclusion of the
meeting, Fisher hugged Via and told her that '"it
will all work out.'" 2d Am. Compl. ¶ 26.
Neither Fisher nor Drumgoole suggested that taking additional
leave would place Via's job in jeopardy.
12, 2016, Fisher sent Via a registered letter terminating her
employment. The letter indicated that CCA was unable to hold
Via's position following the expiration of her FMLA leave
and that her employment would be terminated effective May 16,
about October 26, 2016, Via filed a charge of disability
discrimination with the Equal Employment Opportunity
Commission (EEOC). "Via's charge alleged disability
discrimination in the failure of Defendants, or either of
them, to engage in an interactive process on a good faith
basis to determine reasonable accommodations to enable Via to
resume her work and in Defendants' ultimate failure to
provide reasonable accommodation to Via." IcL ¶ 34.
17, 2017, Via filed the instant action against CCA and
Fisher. Via's original complaint asserted a single count
of disability discrimination under the ADA. See Compl. 10,
August 26, 2017, Via and Morris attended an all-day social
event. Upon returning home that night, Morris received a
frantic call from one of her crew members, Luis Yrupailla,
who reported that a fire had erupted at CCA's printing
plant in Boston, Virginia. Morris told Yrupailla that she
would come to the plant right away. Before leaving, Morris
called Mitzi Mills, CCA's director of production. 2d Am.
Compl. ¶ 45. Mills told Morris that she would meet her
at the plant.
arrived at the plant around the same time as Mills and her
husband, Nathan See, who worked for CCA as a machine
technician. Yrupailla advised Morris that he and other
employees began to smell smoke while working in the data
processing area of the plant. Yrupailla followed the smell
and found a fire burning in an enclosed machine shop that CCA
had recently constructed in the middle of the facility.
Yrupailla's efforts to extinguish the fire were
unsuccessful and the responding fire departments were unable
to contain the fire. The plant ultimately burned to the
speaking with See at the scene of the fire and reviewing
mechanical drawings of the plant, the chief of the Culpeper
County Fire Department determined that the fire had erupted
in a heating, ventilation, and air conditioning (HVAC) unit
on the roof of the plant, directly above the machine shop.
The fire caused the roof to collapse and ultimately spread to
the area below. See advised the fire chief that the HVAC unit
had not been working properly for approximately two weeks.
subsequently arrived at the scene of the fire and spoke with
many of the employees present. "By not later than
sundown [that day], Fisher understood that the fire that
consumed the CCA facility had commenced in an HVAC unit,
known by CCA to be in disrepair, located on the roof of the
facility." hi ¶ 63.
next morning, Fisher entered the Boston General Store and
spoke to another customer, Alfred Marsh, and the store's
owner. Their conversation eventually turned to the fire:
The conversation began when Fisher responded to the following
question from the store owner: "Do you know what caused
Fisher replied: "I think it is arson. I am on my way to
meet with fire investigators now, this morning."
Fisher then advised Marsh that Fisher was looking for a
building in the Culpeper Industrial Park in Brandy Station to
move "his printing business, " and that Brandy
Station is closer than Boston to Dulles airport.
Marsh, now understanding that he was speaking to Steve
Fisher, said to Fisher: "I smelled electrical
smoke." Marsh's house was fogged in on the night of