United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendants Fairfax-Falls
Church Community Service Board ("FFCCSB"), Fairfax
County Government ("FCG"), and Inova Health
System's ("Inova") (collectively
"Defendants") Motions to Dismiss Plaintiff's
Complaint pursuant to Federal Rules of Civil Procedure
12(b)(1), 12(b)(2), and 12(b)(6).
is a forty-six-year-old, African-American man who I suffers
from osteoporosis in his hips and sleep apnea. Plaintiff
alleges that he was a substance abuse counselor for FCG
before I that function was given to FFCCSB, and then
subsequently for FFCCSB. Plaintiff alleges that during his
employment, FFCCSB underwent budget cuts and Inova was to
hire many of its employees as part of the 2014 Merrifield
Land Agreement ("MLA"). Plaintiff further states
that he attempted to get a needed certification in order to
work for Inova as a substance abuse counselor. The
certification required, among other things, for Plaintiff to
work 2000 hours in the field which could be done at FFCCSB.
alleges that FFCCSB discriminatorily prevented him from
reaching the hours requirement due to his race, age,
genetics, and disabilities. Plaintiff alleges that FFCCSB
knew of his disabilities due to the access FFCCSB employees
had to Inova's patient record system. Plaintiff also
states that he requested leave in order to have surgery on
his hip which would have alerted FFCCSB to some medical
disability. Plaintiff further alleges that he did not always
have an African-American manager at FFCCSB, but Nurse
Meacham, an African-American woman, was placed over him near
the end of his employment to provide cover his eventual
firing. Plaintiff also alleges that Nurse Meacham used her
ability to access Inova's patient records to use
Plaintiff's medical record against him and eventually to
support Plaintiff's termination from FFCCSB.
to being fired. Plaintiff was required to undergo a "Fit
for Duty" evaluation after requesting leave to have
surgery on his "hip. On the evaluation form, which was
completed on May 13, 2016, the evaluator wrote that
Plaintiff's co-workers were afraid of him and that
Plaintiff was a threat to his co-workers. Plaintiff was
ultimately terminated from FFCCSB on July 21, 2016.
alleges that he continues to be subject to retaliation from
FFCCSB and FCG employees he believes are preventing his
employment across the country.
filed his first charge with the Equal Employment Opportunity
Commission (EEOC) against FCG alleging race and age
discrimination along with retaliation on June 1, 2016.
Plaintiff received his right-to-sue-letter for that charge on
June 14, 2016. Plaintiff filed his second charge against FCG
in July 2016 alleging racial discrimination and retaliation.
He received his right-to-sue-letter for that charge on
September 8, 2016. Plaintiff did not check the box for
genetic or disability discrimination on either EEOC charge.
filed this lawsuit on July 3, 2018. Defendants move to
dismiss the lawsuit for lack of subject-matter jurisdiction,
personal jurisdiction, and failure to state a claim.
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). A complaint must provide a short,
plain statement showing that the pleader is entitled to
relief. Fed.R.Civ.P. 8(a)(2), and must state a plausible
claim for relief to survive a motion to dismiss,
Iqbal, 556 U.S. at 679; Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
Rule 12(b)(1) motion to dismiss for lack of subject-matter
jurisdiction, a court may look beyond the four corners of the
complaint in order to satisfy itself of jurisdiction.
Mims v. Kemp, 516 F.2d 21, 23 (4th Cir. 1975). The
plaintiff has the burden of proving that jurisdiction exists.
Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th
Cir. 1999). Once it is established that there is no
subject-matter jurisdiction, "the only function
remaining to the court is that of announcing the fact and
dismissing the cause." Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 94 (1998) (internal
Rule 12(b)(6) motion to dismiss, a court must accept all
well-pleaded facts as true and construe those facts in the
light most favorable to the plaintiff. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A court may only look
at the facts pleaded in the complaint when determining its
sufficiency on a 12(b)(6) motion. E.I. du Pont de Nemours
& Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th
Cir. 2011). "[I]f the time bar is apparent on the face
of the complaint," a court may grant a 12(b)(6) motion
on statute of limitations grounds. Dean v. Pilgrim's
Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005).
s Amended Complaint alleges eleven counts which are:
Violation of the Virginia Business Conspiracy Statute (Count
I); Violation of the Americans with Disabilities Act of 1990
(ADA) (Count II); Violation of the Age Discrimination in
Employment Act of 1967 (ADEA) (Count III); Violation of Title
VII of the Civil Rights Act of 1964 (Count IV); Violation of
the Genetic Information Nondiscrimination Act of 2008 (GINA)
(Count V); Defamation (Count VI); Breach of Contract (Count
VII); Tortious Interference with a Business Expectancy (Count
VIII); Statutory Conspiracy (Count IX); Preventing Employment
by Others of former Employee, Va. Code Ann. § 40.1-27
(Count X); and Violations of the Fifth and Fourteenth
Amendments to the United States Constitution (Count XI).
Court will first respond to FFCCSB's contention that this
court lacks personal jurisdiction over it. FFCCSB argues that
it is not statutorily capable of being sued. Rule 12(b)(2)
permits dismissal of an action where there is a lack of
personal jurisdiction. See, e.g., Muniz v.
Fairfax Cty. Police Dep't, No. 1:05-cv-466, 2005
U.S. Dist. LEXIS 48176 *4 (E.D. Va. Aug. 2, 2005). The
capacity of an entity that is neither an individual or
corporation is determined by state law. Fed.R.Civ.P.
17(b)(3). An entity that does not have capacity to be sued is
outside the personal jurisdiction of the court.
Muniz, 2005 U.S. Dist. LEXIS 48176 *4.
law determines the capacity for suit of entities that are not
individuals or corporations. Fed.R.Civ.P. 17(b)(3). When a
statutorily created body is not granted the power to sue or
be sued in the enumeration of its powers, it is not capable
of being sued. See Davis v. City of Portsmouth, 579
F.Supp. 1205, 1210 (E.D. Va. 1983), aff'd 742 F.2d 1448
(4th Cir. 1984). Here, FFCCSB was created by statute, Va.
Code Ann. §§ 37.2-500 et seq., and was not
granted the power to sue or be sued in the enumeration of its
powers, Va. Code Ann. § ...