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White v. Virginia Board for People With Disabilities

United States District Court, E.D. Virginia, Richmond Division

February 1, 2019

KARA A. WHITE, Plaintiff,
v.
VIRGINIA BOARD FOR PEOPLE WITH DISABILTIES, et al., Defendants.

          OPINION

          JOHN A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE.

         Kara White claims that the Virginia Board for People with Disabilities ("the Board"), Heidi Lawyer, and Penni Sweetenburg-Lee failed to promote her and then fired her because of her disability in violation of the Rehabilitation Act and the Americans with Disabilities Act ("ADA"). She also says that the defendants retaliated against her because she advocated for people with disabilities. The defendants have moved to dismiss White's amended complaint for lack of subject matter jurisdiction and for failure to state a claim.

         Because the Court has subject matter jurisdiction over White's ADA claims and she has stated plausible claims for relief under the ADA, the Court will deny the defendants' motion to dismiss as to White's ADA claims. The Court will also deny the motion as to White's retaliation claim under the Rehabilitation Act, but will grant the motion as to her claims for failure to promote and wrongful termination under the Rehabilitation Act.

         I. FACTS ALLEGED IN THE AMENDED COMPLAINT

         White, who has cerebral palsy, worked part-time for the Board from 2007 until February, 2018. She handled three training programs for people with disabilities, including the Partners in Policy ("PIP") program. White's annual evaluations showed that she met or exceeded the Board's expectations.

         In July, 2017, White emailed the Board's staff, asking them to use size 18-point font for all documents. Lawyer, the Board's Executive Director, responded that most people do not need 18-point font and that big font makes documents too long. Lawyer also told White that she should address her concerns with the communications director. White explained that the Board should have large prints on file because participants of the PIP program request larger font sizes every year. Lawyer responded that White should not instruct staff and that she should address further concerns with her supervisor, Sweetenberg-Lee. Sweetenburg-Lee also responded, thanking staff for their "responses and reprimands" and stating that she was "aghast" by White's email. (Am. Compl. ¶ 53.)

         In August, 2017, White applied for a full-time training and alumni coordinator position with the Board. Sweetenberg-Lee and two others interviewed White for the position. On September 3, Sweetenberg-Lee told White that she did not get the position, but that the Board could "facilitate [White] moving on to somewhere else." (Id. ¶ 61.) Instead, the defendants promoted Ronita Wilson, who does not have a disability. Wilson had two years of experience working at the Board, while White had over ten years of experience.

         On August 25, White learned that the Board planned to distribute a liability waiver to PIP participants, which she believed would discourage people with disabilities from attending PIP sessions. White told Sweetenberg-Lee that she believed the waiver discriminated against people with disabilities. On September 6, White expressed her concerns to Teri Morgan, a former employee of the Board, who contacted Lawyer. The next day, Lawyer sent an email to White and Sweetenberg-Lee, reprimanding White for ignoring the chain of command. White complained to Lawyer and Sweetenberg-Lee that they had insulted and disrespected her.

         On September 12, Sweetenberg-Lee told White to stop attending meetings with the Board's directors. Several weeks later, Sweetenberg-Lee asked White to start sending daily updates and weekly reports to Sweetenberg-Lee, to respond to all emails in writing, and not to make any recommendations or send any emails without Sweetenberg-Lee's approval.

         In White's November, 2017 performance evaluation, Sweetenberg-Lee praised White for her "knowledge of disability issues and her extraordinary responsiveness," but said that she expected White to respond to all emails in writing. (Id. If 80.) On December 7, White asked Sweetenberg-Lee not to demean her in front of others. Sweetenberg-Lee responded, "I am sorry you felt demeaned, but I am sure it will not happen again, since you will be following this directive." (Id. |f 82.) On February 22, 2018, Lawyer fired White, citing her "unsatisfactory job performance." (Id. ¶ 84.)

         White's amended complaint alleges that the defendants failed to promote her and fired her because of her disability in violation of the Rehabilitation Act (Count One) and the ADA (Count Two). White also claims that the defendants retaliated against her for her advocacy for people with disabilities in violation of the Rehabilitation Act and the ADA. The defendants have moved to dismiss White's Rehabilitation Act and ADA claims for failure to state a claim under Rule 12(b)(6) and her ADA claim for lack of subject matter jurisdiction under Rule 12(b)(1).

         II. DISCUSSION [1]

         A. ADA Claims

         1. Eleventh ...


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