United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DEFENDANTS' MOTION TO
E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE
Eric Berthiaume, is an employee of the Virginia Department of
Health ("VDH") who has cerebral palsy. According to
the First Amended Complaint, he has limited mobility that
requires the aid of a walker. He also struggles with fine
motor skills, including carrying large stacks of paper files
and assembling paper files into bradded binders by hand.
(First Am. Compl. 1, ECF No. 7.) Plaintiff contends that
despite "two EEOC charges and a prior lawsuit, VDH has
failed to provide a reasonable, reliable accommodation for
his disability." (Id.) As a consequence,
Plaintiff filed the immediate lawsuit seeking injunctive
relief and damages. It is presently before the Court on
Defendants' Motion to Dismiss filed pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6).
VDH, an agency of the Commonwealth of Virginia, maintains
that Plaintiff is precluded by a prior settlement agreement
from reviving claims resolved conclusively in previous
litigation. Alternatively, VDH contends that the First
Amended Complaint fails to allege an actionable claim for
failure to accommodate a disability because the job tasks he
seeks to restructure are a central function particularly
described in his work plan. (Defs.' Mem. Supp. Mot.
Dismiss 1-2, ECF No. 13.)
parties have filed memoranda supporting their respective
positions. The Court heard oral argument on October 29, 2019.
Before analyzing the merits of the parties' arguments,
some historical background is instructive.
to acquiring his current position presently at issue,
Plaintiff was a senior secretary in the VDH Office of
Licensure Certification. Because of his inability to timely
perform proper filing tasks, he received a substandard
performance evaluation from his supervisor. Despite a note
from his physician "describing his disability and
explaining how it limited his production speed," (First
Am. Compl. 9), he was subject to disciplinary action,
culminating in a negative probationary progress review and
probation period extension. Each adverse performance
assessment focused on the slow pace of Plaintiff s document
filing skills. According to the First Amended Complaint,
subsequent communications from his physician describing his
disability and requesting accommodations, such as a transfer
to another job, were unavailing. (Id. at 11-12.) As
a consequence of VDH's inaction, Plaintiff filed his
initial lawsuit in this Court- Civil Action No. 3:16-cv-968
(the "2016 lawsuit").
2016 lawsuit, VDH agreed to transfer Plaintiff to the
Division of Acute Care Services. Plaintiff understood that as
part of the agreement, his duties would be restructured to
eliminate paper filing and replace that task with other
duties. With this assurance, the 2016 lawsuit was dismissed
with prejudice. Initially, Plaintiffs paper filing duties
were eliminated. According to the First Amended Complaint,
Plaintiff received assistance with paper filing tasks until
the assigned employee was terminated in March 2019.
(Id. at 17.) Plaintiffs subsequent request for
further accommodation was denied. The immediate lawsuit
it has jurisdictional implications, the Court must initially
address VDH's Motion to Dismiss under Fed.R.Civ.P.
12(b)(1). VDH contends that Plaintiffs claims replicate those
resolved in the prior release and settlement agreement
discussed above. VDH maintains that Plaintiff previously had
a full and fair opportunity to litigate his claims. In
support of its jurisdictional claim, VDH draws the
Court's attention to Plaintiffs EEOC Charge of
Discrimination referenced in his First Amended Complaint. In
that context, Plaintiff claimed that he is "now being
subjected to the same harassment and discrimination by the
same people who caused me problems before." (Defs.'
Mem. Supp. Mot. Dismiss, Ex. 5, ECF No. 13-5.) This Court is
not convinced that Plaintiffs present claims are based on the
same supporting facts.
careful reading of Plaintiff s First Amended Complaint
reveals that references to conditions underlying the prior
litigation are contextual. It appears to be intended to
provide background, not a free-standing claim. The historical
reference is intended to demonstrate a continuing course of
discrimination and lack of accommodation. Therefore,
Defendants' Motion to Dismiss under Fed.R.Civ.P. 12(b)(1)
will be denied. The Court will turn next to Defendants'
contention that the First Amended Complaint fails to state a
required by Rule 12(b)(6), the Court assumes Plaintiffs
well-pleaded allegations to be true and views all facts in
the light most favorable to him. T.G. Slater & Son v.
Donald P. & Patricia A. Brennan LLC, 385 F.3d 836,
841 (4th Cir. 2004) (citing Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). To restate
the time-honored standard, "[a] 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). The Federal Rules of Civil
Procedure and interpretative case law "require 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 Alt. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint
need not assert "detailed factual allegations," it
must contain "more than labels and conclusions" or
a "formulaic recitation of the elements of a cause of
action." Id. However, the "[f]actual
allegations must be enough to raise a right to relief above
the speculative level" to one that is "plausible on
its face." Id. at 555, 570 (citation omitted).
survive Rule 12(b)(6) scrutiny, a complaint need only contain
"enough facts to state a claim to relief that is
plausible on its face." Id. at 570. A complaint
achieves facial plausibility when the facts contained therein
support a reasonable inference that the defendant is liable
for the misconduct alleged. Id. at 556; see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This
analysis is context-specific and requires "the reviewing
court to draw on its judicial experience and common
sense." Francis v. Giacomelli, 588 F.3d 186,
193 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 679).
core claim is that VDH failed to provide him with a
reasonable accommodation to enable him to perform the
essential function of his position, namely serving as a
resource for agency customers. Plaintiff maintains that
moving large files and inserting papers into binders are
merely incidental tasks. VDH disagrees, drawing the
Court's attention to language in Plaintiff s job
description, which includes filing functions.
in the light most favorable to Plaintiff, his claims of
disability discrimination are more than adequate to survive
Rule 12(b)(6) scrutiny. As the United States Court of Appeals
for the Fourth Circuit noted in Jacobs v. N.C.
Administrative Office of the Courts, "[n]ot all job
requirements or functions are essential. A job function is
essential when 'the reason the position exists is to
perform that function.'" 780 F.3d 562, 579 (4th Cir.
2015) (quoting 29 C.F.R. § 1630.2(n)(2)). On the other
hand, the Court in Jacobs also noted that a
pre-existing job description "shall be considered
evidence of the essential functions of the job."
Id. (quoting 42 U.S.C. § 12111(8)).
Plaintiff has demonstrated a sufficiently plausible claim to
advance his case to next the stage, whether filing duties are
an essential function of his position must await the
development of a more fulsome ...