United States District Court, E.D. Virginia, Richmond Division
HANNAH LAUCK UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants' Greater
Richmond Association for Retarded Citizens
("GRARC"), John Walker, and Charles Story,
Ill's (collectively, "Defendants") Partial
Motion to Dismiss Plaintiffs Complaint (the "Motion to
Dismiss"). (ECF No. 7.) Plaintiff Virginia Walsh
responded, (ECF No. 11), and Defendants replied, (ECF No.
12). This matter is ripe for disposition. The Court dispenses
with oral argument because the materials before it adequately
present the facts and legal contentions, and argument would
not aid the decisional process. The Court exercises
jurisdiction pursuant to 28 U.S.C. §§
1331. For the reasons that follow, the Court
will deny the Motion to Dismiss.
Factual and Procedural Background
1, 2018, Walsh filed a two-count Complaint against Defendants
in this Court. (Compl. 9, 11, ECF No. 1.) In Count One, she
claims disparate treatment by GRARC, in violation of the
Americans with Disabilities Act, 42 U.S.C. § 12101,
et seq. (the "ADA"). Count Two alleges
wrongful termination against all Defendants, in violation of
the Family Medical Leave Act of 1993, 29 U.S.C. § 2601,
et seq. (the "FMLA"). On May 23, 2018,
Defendants filed the Motion to Dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(1), seeking dismissal of Count
One for failure to exhaust administrative remedies.
Walsh's Employment Background
claims arise from the termination of her employment with
GRARC. She began working with GRARC in April 2012 and GRARC
terminated her employment on September 20, 2016. Throughout
her tenure with GRARC, Walsh "received positive
performance evaluations, promotions, and increases to her
annual salary." (Compl. ¶ 19, ECF No. 1.) Walsh
claims that "[h]er superiors were uniformly pleased with
her performance." (Id.)
2015, Walsh became the step-mother to a five-year-old girl,
M, who had been the victim of sexual abuse and required
treatment for post-traumatic stress disorder. Due to M's
diagnosis, Walsh required "intermittent leave from work
to care for M and allow M to receive the medical treatment
necessary." (Id. ¶ 26.) Specifically, M
required "weekly treatment sessions with a therapist. .
. between August 17, 2015 and September 26, 2016."
(Id. f 28.) Because the 37 therapy sessions took
place at 4:00 p.m., Walsh was "absent from work for a
few hours on the day[s] of the treatment." (Id.
K 29, 30.)
2015, Walsh informed her supervisors of her family's
situation. She states that "[b]oth managers seemed very
supportive and understanding and expressed to Walsh that they
understood the emotional impact such a traumatic event would
have on M and her family." (Id. ¶ 25.) She
also asserts that she "kept her supervisors ... informed
of M's treatment and the fact that Walsh would need to
leave early approximately once a week." (Id.
later, in July 2016, "Defendants suddenly put Walsh on a
Performance Improvement Plan." (Id. ¶ 32.)
But during an August 26, 2016 meeting, the next month, Walsh
alleges that she received positive feedback from Story, the
Vice President of GRARC's Human Resources. On September
20, 2016, less than one month after the meeting with Story,
GRARC terminated Walsh's employment. During the September
20, 2016 meeting in which she was terminated, Story told
Walsh: "'This doesn't have anything to do with
you taking time off,' or words to that effect."
(Id. ¶ 34 (quoting Story).) Walsh states that
Walker agreed, saying, "that is correct."
(Id. (quoting Walker).) According to Walsh,
Defendants maintained that GRARC "had decided to make a
change and that her leadership skills were not
sufficient." (Id. ¶ 35.) Walsh maintains
that she was terminated "because of [her] role as
caretaker of her disabled daughter and because she had been
taking intermittent FMLA leave." (Id. ¶
13, 2017, following her termination, Walsh, through the same
counsel currently representing her, timely filed a charge of
discrimination with the United States Equal Employment
Opportunity Commission (the "EEOC"). On July 25,
2017, the EEOC contacted Walsh's counsel to request a
telephonic interview with Walsh. On July 27, 2017, the EEOC
interviewed Walsh via a conference call which included Walsh,
representatives of the EEOC, and Walsh's counsel.
August 8, 2017, two weeks after Walsh's EEOC interview,
the EEOC issued Walsh's right-to-sue letter (the "EEOC
Notice" or "Notice"). Walsh maintains that
neither she nor her counsel knew that the EEOC sent the EEOC
Notice. Walsh asserts that the EEOC failed to send her or her
counsel the EEOC Notice, and that neither ever received it.
claims that she first learned that the EEOC issued its Notice
nearly eight months after the EEOC says it sent the EEOC
Notice, during an April 4, 2018 telephone call between an
EEOC investigator and Walsh's counsel. During a second
phone call three days later, this time between the EEOC
Director for the Richmond office and Walsh's counsel,
Walsh learned "that the EEOC was looking into whether it
could issue a new" right-to-sue letter. (Id. K
8e.) As of the May 1, 2018 filing date of her Complaint,
Walsh states that "[n]either [Walsh] nor her counsel has
heard anything else on the matter from the
EEOC." (Id. ¶ 8f.)
Applicable Legal Standards
Standard of Review: Rule 12(b)(6)
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) (citing 5 A
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (1990)). In
considering a motion to dismiss for failure to state a claim,
a plaintiffs well-pleaded allegations are taken as true and
the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual
allegations, however, and "a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
Federal Rules of Civil Procedure "required 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 Atl. Corp.
v. Twombly,550 U.S. 544, 555 (2007) (omission in
original) (quoting Conley v. Gibson,355 U.S. 41, 47
(1957)). Plaintiffs cannot satisfy this standard with
complaints containing only "labels and conclusions"
or a "formulaic recitation of the elements of a cause of
action." Id. (citations omitted). Instead, a
plaintiff must assert facts that rise above speculation and
conceivability to those that "show" a claim that is
"plausible on its face." Iqbal, 556 U.S.
at 678-79 (citing Twombly, 550 U.S. at 570;
Fed.R.Civ.P. 8(a)(2)). Therefore, in order for a claim or
complaint to survive dismissal for failure to state a claim,