Ainsworth v. Loudoun County Public Schools et al

Filing 27

MEMORANDUM OPINION Re: 11 MOTION to Dismiss for Failure to State a Claim by Loudoun County School Board and 13 MOTION to Dismiss for Failure to State a Claim by Jill Broaddus, Delores Creech, Mary M. Kearney, Brian Peppiat, Paul H. Webb. Signed by District Judge James C. Cacheris on 3/16/2012. (stas)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

KRISTIN AINSWORTH,
Plaintiff,
v.
LOUDON COUNTY SCHOOL BOARD,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

1:11cv1228 (JCC/JFA)

M E M O R A N D U M

O P I N I O N

This matter is before the Court on Motions to Dismiss
[Dkts. 11, 13] filed by Defendant Loudon County School Board
(“LCSB”) and Defendants Paul Webb, Jill Broaddus, Mary Kearney,
Delores Creech, and Brian Peppiat (the “Individual Defendants”)
(collectively “Defendants”).1

For the following reasons, the

Court will grant in part and deny in part LCSB’s Motion and
grant in part and deny in part the Individual Defendants’
Motion.
I. Background
This case arises out of an employment dispute that
implicates the Family and Medical Leave Act (“FMLA”), 29 U.S.C.

1

In the Amended Complaint, the headings for the four counts and the prayer
for relief also identify “Mary Anne Hardebeck” as a defendant. This person,
however, is not identified in the caption or the “parties” section of the
Amended Complaint (nor is she referenced anywhere else). Plaintiff
acknowledges that the references to Mary Anne Hardebeck are typographical
errors, and that she is not a defendant in this case.

1

§ 2601, et seq., and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq.
A.

Factual Background
1.

Ainsworth’s Employment with LCSB

Plaintiff Kristin Ainsworth was employed by LCSB from
2001 until June 21, 2010, during which time she worked as a
Teacher’s Assistant and Behavioral Assistant at various schools.
(Am. Compl. [Dkt. 3] ¶¶ 4, 27.)

While working as a Teacher’s

Assistant at Seneca Ridge Middle School from 2002 to 2004,
Ainsworth began to experience severe headaches, which
occasionally required her to take leave from work.
¶ 29.)

(Am. Compl.

In 2004, Ainsworth transferred to Algonkian Elementary

School, where she worked as a Teacher’s Assistant until 2007.
(Am. Compl. ¶ 30.)

Ainsworth continued to experience severe

headaches during this time, and occasionally took leave without
pay as a result.

(Id.)

In 2008, Ainsworth accepted a

Behavioral Assistant position at Rosa Lee Carter Elementary
School, a promotion with a pay increase from $17 per hour to $25
per hour.

(Am. Compl. ¶ 31.)

Ainsworth received positive

performance evaluations up to this time.

(Am. Compl. ¶¶ 28-30.)

The severe headaches persisted, and began to increase in
intensity and frequency.

(Am. Compl. ¶ 31.)

2

2.

Ainsworth’s Medical Condition and FMLA Leave

Ainsworth was approved for FMLA leave from March to
June 2008 due to the increasing severity of the headaches.
Compl. ¶ 32.)
brain tumor.

(Am.

On May 13, 2008, Ainsworth was diagnosed with a
(Am. Compl. ¶ 35.)

Ainsworth received a

performance evaluation in June 2008 which noted that she had
taken medical leave, but nonetheless concluded that her
performance was positive.

(Am. Compl. ¶ 36.)

She was

reassigned to Rosa Lee Carter Elementary School as a Behavioral
Assistant for the 2008-09 school year.

(Id.)

In July 2008, Ainsworth underwent surgery to remove
her brain tumor.

(Am. Compl. ¶ 37.)

She subsequently

experienced post-operative complications and underwent emergency
surgery in August 2008.

(Id.)

Ainsworth was approved for FMLA

leave from August 27, 2008 to December 1, 2008.
38.)

(Am. Compl. ¶

Ainsworth was granted permission to remain on a leave of

absence from December 2, 2008 to January 27, 2009.

(Am. Compl.

¶ 39.)
3.

Ainsworth Works Part-Time for Remainder of
2008-09 School Year

Ainsworth was medically cleared to return to work
part-time on January 5, 2009.

(Am. Compl. ¶ 40.)

Ainsworth

discussed the status of her classroom position with Mary
Kearney, Director of Special Education, and Delores Creech, an
LCSB Personnel Specialist.

(Am. Compl. ¶ 41.)
3

Kearney and

Creech assured Ainsworth that her position had not been filled,
and that a long-term substitute teacher would hold the position
until Ainsworth was medically cleared to work full-time.

(Id.)

In the meantime, Ainsworth was placed as an assistant to Kearney
and performed secretarial work.

(Am. Compl. ¶ 42.)

On March 25, 2009, Ainsworth was medically released to
work in the classroom with only a restriction on the duration of
her work.

(Am. Compl. ¶ 43.)

Ainsworth’s doctor recommended

that she initially work one day per week and gradually increase
her workload.

(Id.)

The goal was for Ainsworth to reach full-

time status after four months.

(Id.)

Ainsworth asked Kearney and Creech if she could return
to the classroom position at Rosa Lee Carter Elementary School.
(Am. Compl. ¶ 44.)

Both told her that she could not return to

the classroom position during the middle of the school year
because the children were already in a comfortable routine with
the long-term substitute.

(Id.)

Ainsworth continued to work as

an assistant to Kearney and performed secretarial work for the
remainder of the academic year.

(Am. Compl. ¶ 44.)

During the spring and summer of 2009, Ainsworth asked
Kearney and Creech on several occasions whether she would be
returning to a classroom position for the 2009-10 school year.
(Am. Compl. ¶ 45.)

Each time Ainsworth asked, Kearney and

4

Creech assured her that she would return to the classroom
position.

(Id.)
In June 2009, Ainsworth spoke with Creech and again

asked about returning to the classroom position.
46.)

(Am. Compl. ¶

This time, Creech told Ainsworth that her classroom

position had been filled, and that she would need to find
another position for the next academic year.

(Id.)

Ainsworth

was also informed that her salary would decrease from $25 per
hour to $17 per hour.

(Am. Compl. ¶ 47.)

When Ainsworth

protested the salary decrease and told Creech that they “can’t
do this to [her],” Creech replied, “Well honey, we can, and we
did.”

(Id.)
Once Ainsworth was advised that her position had been

filled, she began searching for an alternative position for the
next school year.

(Am. Compl. ¶ 48.)

Ainsworth was in regular

contact with Creech and Kearny in trying to locate another
position.

(Am. Compl. ¶¶ 48-49.)
4.

Ainsworth’s Assignment for the 2009-10
School Year

Over the summer, Creech informed Ainsworth that she
was being placed at Cool Spring Elementary School as a Teacher’s
Assistant.

(Am. Compl. ¶ 50.)

Ainsworth told Creech and

Kearney that she preferred to work with autistic children in a
self-contained class, and not with emotionally disturbed
children.

(Am. Compl. ¶¶ 49-51.)
5

Kearney informed Ainsworth

that she is the person responsible for determining assignments.
(Am. Compl. ¶ 51.)
Ainsworth was medically released to return to work
full-time beginning August 21, 2009.

(Am. Compl. ¶ 52.)

In the

summer of 2009, Ainsworth received a letter and contract stating
that she would be working as a Teacher’s Assistant (Special
Education) in an integrated class.

(Am. Compl. ¶ 53.)

Based on

her conversations with Creech, Ainsworth had believed she would
be working with autistic children in a self-contained class.
(Id.)
In the summer of 2009, Jill Broaddus, Principal at
Cool Spring Elementary School, contacted Ainsworth by telephone
and asked Ainsworth what type of children she wanted to work
with.

(Am. Compl. ¶ 54.)

Ainsworth reiterated her desire to

work with autistic children in a self-contained class, and not
with emotionally disturbed children.

(Id.)

During this

conversation, Broaddus stated to Ainsworth, “Well, we get a lot
of people like you.”

(Am. Compl. ¶ 55.)

When Ainsworth asked

her to explain, Broaddus replied, “Oh, you know, people with
issues.”

(Id.)

Ainsworth interpreted Broaddus’s statement as

referring to “problem” employees, or people who miss a lot of
work.

(Id.)

Ainsworth was surprised by this comment, given the

positive performance evaluations she had received during her
employment at LCSB.

(Id.)

Broaddus ended the conversation by

6

telling Ainsworth that she would take her preferences into
consideration.

(Am. Compl. ¶ 56.)

On the first day of the school year, Ainsworth learned
that she would be working with emotionally disturbed children,
despite her request to the contrary.

(Am. Compl. ¶ 57.)

Other

teachers and teacher’s assistants received the assignments they
requested.

(Id.)
At Cool Spring Elementary School, Ainsworth was given

increased responsibilities -- for example, preparing lesson
plans for the class.

(Am. Compl. ¶ 58.)

However, Ainsworth

received negative treatment from other teachers who were aware
of her medical condition.

(Am. Compl. ¶ 59.)

Broaddus and

Brian Peppiat, the Assistant Principal, had knowledge of
Ainsworth’s brain tumor and subsequent surgeries and treatments,
but had conferences with her regarding absences.
60-61.)

(Am. Compl. ¶¶

Ainsworth reiterated that she had been diagnosed and

treated for a brain tumor and that her treatments were
continuing.

(Am. Compl. ¶ 61.)
5.

Negative Performance Evaluations, Continuing
Medical Treatment, and Additional FMLA Leave

Thereafter, Ainsworth had meetings with Broaddus and
Peppiat in which she was given negative feedback.
62.)

(Am. Compl. ¶

Specifically, Ainsworth was told that she was not doing

her job, that she was inconsistent with the children, that the
children did not like her, and that she was failing to follow
7

instructions.

(Id.)

Ainsworth contends that she was doing her

job well, and that Broaddus and Peppiat’s statements to the
contrary were false.

(Id.)

On February 18, 2010, Broaddus presented Ainsworth
with a memorandum concerning her absences from work.
Compl. ¶ 63.)

(Am.

The memorandum indicated that in addition to

being out of work for thirty days during the 2009-10 school
year, Ainsworth would “call in sick late mornings when teachers
are aware the day before due to Facebook postings that you are
not coming to work the next day.”

(Id.)

The memorandum also

indicated that Ainsworth was being placed on formal evaluation
for the remainder of the school year and that if there was not
an improvement in Ainsworth’s attendance, she was in danger of
receiving an unsatisfactory rating.

(Id.)

After Ainsworth

prepared a rebuttal and questioned Broaddus about the claim
regarding Facebook postings, Broaddus prepared a revised
memorandum dated February 22, 2010, which removed the Facebook
reference.

(Am. Compl. ¶ 64.)
According to Broaddus’s memorandum, Ainsworth had

missed thirty days of work for medical reasons as of February
18, 2010.

(Am. Compl. ¶ 67.)

Ainsworth continued to receive

medical treatment related to the removal of her brain tumor, and
was excused from work on February 19, 2010, March 5 to 8, 2010,
March 18 to 19, 2010, March 25 to 26, 2010, and April 7, 2010.

8

(Id.)

On April 9, 2010, Ainsworth received an “overall

unsatisfactory” performance evaluation from Broaddus which
indicated that Ainsworth was “not meeting [her] job requirements
due to [her] frequent absences.”

(Am. Compl. ¶ 68.)

The

performance evaluation also noted, however, that Ainsworth was
“very organized and completes clerical tasks efficiently.”
(Id.)
Ainsworth was approved for FMLA leave from April 12 to
30, 2010, so that she could receive nerve block injections to
treat her frequent headaches.

(Am. Compl. ¶ 70.)

While

Ainsworth was on leave, Broaddus told her that FMLA would no
longer help her and that she should get “professional help” and
apply for long-term benefits.

(Am. Compl. ¶ 71.)

Ainsworth was

approved for additional FMLA leave from May 1 to 28, 2010 and
June 1 to 17, 2010, which related to cervical nerve block
treatment.

(Am. Compl. ¶ 72.)

Ainsworth took a leave of

absence for the final four days of the school year, June 18 to
21, 2010.

(Am. Compl. ¶ 73.)

In total, Ainsworth took

approximately eighty-nine days of leave during the 2009-10
school year due to health issues related to the brain tumor,
subsequent surgeries, radiation treatments, and nerve block
injections.

(Am. Compl. ¶ 66.)
6.

LCSB Declines to Offer Ainsworth an
Employment Contract for the 2010-11 School
Year

9

Following the April 9, 2010, performance evaluation,
Creech assured Ainsworth multiple times that she would obtain
another employment contract for the following school year.
Compl. ¶ 74.)

(Am.

Nonetheless, Ainsworth received a letter from

LCSB dated May 28, 2010, stating that her employment was
terminated effective June 21, 2010.

(Am. Compl. ¶ 76.)

Ainsworth spoke with Creech, who confirmed that she was not
receiving an employment contract based on her last performance
evaluation.
B.

(Am. Compl. ¶ 78.)
Procedural History

Ainsworth initially filed suit on November 9, 2011.
[Dkt. 1.]

She subsequently filed an Amended Complaint on

December 20, 2011.

[Dkt. 3.]

The Amended Complaint contains

four counts: (1) FMLA interference (Count I); (2) FMLA
retaliation (Count II); (3) ADA wrongful discharge and failure
to accommodate (Count III); and (4) intentional infliction of
emotional distress (“IIED”) against the Individual Defendants
(Count IV).

LCSB and the Individual Defendants filed Motions to

Dismiss on January 20, 2012.

[Dkts. 11, 13.]

Ainsworth filed

two opposition briefs on January 31, 2012 [Dkts. 20, 21], to
which LCSB and the Individual Defendants replied on February 3,
2012 [Dkts. 23, 24].

Defendants’ Motions are before the Court.

10

II.

Standard of Review

Federal Rule of Civil Procedure 12(b)(6) allows a
court to dismiss those allegations which fail “to state a claim
upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6).

A

Rule 12(b)(6) motion tests the legal sufficiency of the
complaint.
2008).

Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.

A court reviewing a complaint on a Rule 12(b)(6) motion

must accept well-pleaded allegations as true and must construe
factual allegations in favor of the plaintiff.

See Randall v.

United States, 30 F.3d 518, 522 (4th Cir. 1994).
A court must also be mindful of the liberal pleading
standards under Rule 8, which require only “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8.

While Rule 8 does not require

“detailed factual allegations,” a plaintiff must still provide
“more than labels and conclusions” because “a formulaic
recitation of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)
(citation omitted).
To survive a Rule 12(b)(6) motion, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 570).

“A claim has facial plausibility

11

when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.”

Id.

However, “[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” to meet this standard,
id., and a plaintiff’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level . . . .”
Twombly, 550 U.S. at 555.

Moreover, a court “is not bound to

accept as true a legal conclusion couched as a factual
allegation.”

Iqbal, 129 S.Ct. at 1949-50.
III. Analysis

A.

Counts I and II: FMLA Claims

In Count I of the Amended Complaint, Ainsworth alleges
that LCSB interfered with her substantive rights under the FMLA
by failing to reinstate her to the same, or an equivalent,
position following the conclusion of her FMLA leave in December
2008.

In Count II, Ainsworth alleges that LCSB terminated her

employment in retaliation for exercising her FMLA rights.2

2

LCSB

In analyzing these two types of claims, courts, including the Fourth
Circuit, have described the FMLA as including both prescriptive and
proscriptive rights. See Yashenko v. Harrah’s N.C. Casino Co., LLC, 446 F.3d
541, 546 (4th Cir. 2006). The substantive rights provided by the FMLA are
prescriptive, “set[ting] substantive floors for conduct by employers, and
creating entitlements for employees.” Id. (alteration in original) (quoting
Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998)).
Interference claims (also known as “entitlement” or “restoration” claims)
involve alleged violations of these prescriptive rights, id., and arise under
29 U.S.C. § 2615(a)(1), which provides that “[i]t shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of or the attempt
to exercise, any right provided under this subchapter.” In addition to
prescriptive rights, the FMLA provides proscriptive rights, protecting
employees from discrimination or retaliation for exercising their substantive

12

argues that both causes of action should be dismissed for
failure to state a claim.

(LCSB Mem. [Dkt. 12] at 4-8.)

The

Individual Defendants join in this argument, but also contend
that they should be dismissed from both counts because they may
not be held liable for alleged FMLA violations as public
employees in their individual capacities and, alternatively,
because Ainsworth fails to allege that they possessed sufficient
control over the terms of her employment.
Mem. [Dkt. 14] at 6-10).

(Individual Defs.’

The Court first addresses the

threshold issue of individual liability before proceeding to
Defendants’ other arguments.
1.

Liability of Individual Defendants
a.

Whether the FMLA Permits Public
Employees to be Held Individually
Liable

The Individual Defendants first argue that the FMLA
does not permit liability against public employees in their
individual capacities.

There is a split of authority as to

whether public employees qualify as “employer[s]” and hence may
be held individually liable under the FMLA.

The Fifth and

Eighth Circuits have concluded, based on the statutory text,
that public employees may be sued in their individual capacities
under the FMLA if they act directly or indirectly in the
rights under the FMLA. Yashenko, 446 F.3d at 546 (citations omitted).
Retaliation claims (also known as “discrimination” claims) involve alleged
violations of proscriptive rights, id., and arise under 29 U.S.C. §
2615(a)(2), which provides that “[i]t shall be unlawful for any employer to
discharge or in any other manner discriminate against any individual for
opposing any practice made unlawful by this subchapter.”

13

interest of their employer -- for example, by exercising hiring
and firing authority.

See Modica v. Taylor, 465 F.3d 174, 184-

87 (5th Cir. 2006); Darby v. Bratch, 287 F.3d 673, 681 (8th Cir.
2002).

The Sixth and the Eleventh Circuits have reached the

opposite conclusion.

See Mitchell v. Chapman, 343 F.3d 811,

825–33 (6th Cir. 2003); Wascura v. Carver, 169 F.3d 683, 685–87
(11th Cir. 1999).

The Fourth Circuit has yet to rule on this

issue, see Jones v. Sternheimer, 387 F. App’x 366, 369 (4th Cir.
2010) (recognizing that the issue is an open question, and
expressing no opinion on the viability of [plaintiff’s] claim),
while district courts within the Fourth Circuit are split.

See

Weth v. O’Leary, 796 F. Supp. 2d 766, 776-77 (E.D. Va. 2011),
Sheaffer v. Cnty. of Chatham, 337 F. Supp. 2d 709, 727-29
(M.D.N.C. 2004), Cantley v. Simmons, 179 F. Supp. 2d 654, 657-58
(S.D. W.Va. 2002) and Knussman v. State of Maryland, 935 F.
Supp. 659, 664 (D. Md. 1996) (public employees can be
individually liable under the FMLA) with Sadowski v. U.S. Postal
Serv., 643 F. Supp. 2d 749, 757 (D. Md. 2009), Miller v. Cnty.
of Rockingham, No. 5:06cv00053, 2007 WL 990135, at *4 (W.D. Va.
Mar. 30, 2007) and Keene v. Rinaldi, 127 F. Supp. 2d 770, 777-78
(M.D.N.C. 2000) (public employees cannot be held individually
liable under the FMLA).

The majority view appears to be that

public employees may be individually liable under the FMLA.
Weth, 796 F. Supp. 2d at 776 (citations omitted).

14

See

The Court is persuaded by the majority view, and holds
that public employees may be sued in their individual capacities
for alleged violations of the FMLA.

In analyzing this issue,

the Court is mindful that “the beginning point must be the
language of the statute.”

Ramey v. Dir., Office of Workers’

Comp. Program, 326 F.3d 474, 476 (4th Cir. 2003) (citation
omitted).

The Court must presume that when Congress writes a

statute, it means what it says and says what it means.

Conn.

Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992).
The text of the FMLA provides that the term
“employer”:
(i)

means any person engaged in commerce or in any
industry or activity affecting commerce who
employs 50 or more employees for each working day
during each of 20 or more calendar workweeks in
the current or preceding calendar year;

(ii) includes-(I)

any person who acts, directly or indirectly,
in the interest of an employer to any of the
employees of such employer; and

(II) any successor in interest of an employer;
(iii) includes any “public agency,” as defined in
section 203(x) of this title; and
(iv) includes the Government Accountability Office and
the Library of Congress.
29 U.S.C. § 2611(4)(A).
The FMLA plainly includes in the definition of
employer “any person who acts, directly or indirectly, in the

15

interest of an employer to any of the employees of such
employer.”

29 U.S.C. § 2611(4)(A)(ii)(I).3

includes public agencies as employers.

The statute also

Id. § 2611(4)(A)(iii).

It therefore follows from a plain reading of the statute that if
a public employee “acts, directly or indirectly, in the interest
of an employer,” she too falls within the FMLA’s definition of
employer, and thus, may be held liable in her individual
capacity.

Modica, 465 F.3d at 184; Weth, 796 F. Supp. 2d at

777.
The Court is unconvinced by the reasoning of those
courts that have held otherwise.

Some of these courts have

pointed out that the individual liability provision and the
public agency provision are located in two distinct clauses, 29
U.S.C. §§ 2611(4)(A)(ii)(I) and (iii), respectively, which they
believe compels the interpretation that the two clauses are
mutually exclusive.

See Mitchell, 343 F.3d at 830; Sadowski,

643 F. Supp. 2d at 755.

The use of the conjunctive word “and”

after clause (iii), however, demonstrates precisely the opposite
-- namely, that the term “employer” can include both a public
agency and individuals who act, directly or indirectly, in the
3

Courts finding individual liability under the FMLA have frequently looked to
the Fair Labor Standards Act (“FLSA”) because the definitions of “employer”
in the two acts are similar and because the FMLA’s implementing regulations
reference this similarity. See Weth, 796 F. Supp. 2d at 776 (citing 29
C.F.R. § 825.104(d)). Most courts, including the Fourth Circuit, have taken
the position that individuals can be liable for FLSA violations provided that
they have sufficient control over the conditions and terms of a plaintiff’s
employment. See Brock v. Hamad, 867 F.2d 804, 808 n.6 (4th Cir. 1989)
(explaining that an individual defendant with the power to hire and direct
employees was an “employer” under the FLSA).

16

interest of a public agency.

Weth, 796 F. Supp. 2d at 777; see

also Modica, 465 F.3d at 185 (“Congress’s use of the word “and”
following clause (iii) suggests that there is some relationship
between clauses (i)-(iv).”)
Courts subscribing to the minority view have also
concluded that an interpretation that permits individual
liability for public employees renders other provisions of the
statute superfluous and creates several “oddities.”

See, e.g.,

Mitchell, 343 F.3d at 831; Sadowski, 643 F. Supp. 2d at 755-56.
Each supposed oddity or superfluity has, however, been
persuasively refuted by other courts.
First, 29 U.S.C. § 2611(4)(B), which provides that “a
public agency shall be considered to be a person engaged in
commerce or in an industry or activity affecting commerce,” is
not rendered superfluous by the majority view.

It is true that

the commingling of “employer” in 29 U.S.C. § 2611(4)(A)(i)
(“employer” means “any person engaged in commerce or in any
industry or activity affecting commerce”) with “public agency”
in § 2611(4)(A)(iii), of course, yields the following: a public
agency is “any person engaged in commerce or in any industry or
activity affecting commerce.”
756.

See Sadowski, 643 F. Supp. 2d at

Even so, 29 U.S.C. § 2611(4)(B) is not superfluous --

rather, it acts to relieve plaintiffs from having to prove that
the public agency is engaged in commerce.

17

See Modica, 465 F.3d

at 186; Hewett v. Willinboro Bd. of Educ., 421 F. Supp. 2d 814,
820 (D.N.J. 2006).
Second, the majority view does not create an
“absurdity” by commingling other clauses –- namely, the
successor-in-interest provision, 29 U.S.C. § 2611(4)(A)(ii)(II)
and the Government Accountability Office (“GAO”) and Library of
Congress provision, § 2611(4)(A)(iv).

See Mitchell, 343 F.3d at

831 (arguing that the majority interpretation “implies that the
FMLA extends specific protection to employees of the GAO and the
Library of Congress from future successors in interest. . . .
[I]t is an exercise in absurdity to consider that the FMLA
sought to protect employees of two long-standing federal
entities from threats posed by any future successors in
interest”).

Importantly, Section 2611(4)(A)(iv) was only

included in the statute by a 1995 amendment.

See Congressional

Accountability Act of 1995, Pub.L. 104–1, § 202, 1995
U.S.C.C.A.N. (109 Stat. 9).

That the amendment had an

unanticipated effect on the statute as enacted should not change
the “straightforward language of the clauses” with which the
Court is presently concerned.

Hewett, 421 F. Supp. 2d at 820-

21.
In short, a plain reading of the statute indicates
that public employees who act directly or indirectly in the
interests of their employer may themselves be considered

18

“employers” subject to suit in their individual capacities under
the FMLA.

See Weth, 796 F. Supp. 2d at 777.

Accordingly, the

Court concludes that the Individual Defendants may be liable in
their individual capacities under the FMLA.
b.

Whether the Amended Complaint Alleges
that the Individual Defendants
Possessed Sufficient Control over the
Terms of Ainsworth’s Employment

The Individual Defendants next argue that even if the
FMLA permits individual liability for public employees, the
Amended Complaint fails to demonstrate that they possessed
sufficient authority for them to be sued in their individual
capacities.4

The Court disagrees.

The Amended Complaint alleges

that Webb was the Director of Employee Relations at LCSB, who
signed Ainsworth’s non-renewal letter, (Am. Compl. ¶ 77), and
that Creech was the Personnel Specialist at LCSB, (Am. Compl. ¶
14), who told Ainsworth she would not be receiving an employment
contract for the 2010-11 school year, (Am. Compl. ¶¶ 77-78.)
The Amended Complaint further alleges that Kearney, Director of
Special Education at LCSB, was responsible for Ainsworth’s
assignment at Cool Spring Elementary School for the 2009-10

4

At oral argument, defense counsel also argued that pursuant to special rules
applicable to public schools, LCSB was Ainsworth’s “employer” with exclusive
hiring and firing authority, and that, as a matter of law, the Individual
Defendants lacked such authority. Other courts have rejected the argument
that such “special rules” preclude individual liability under the FMLA in
cases against public school boards and their employees. See, e.g., Fields v.
Trollinger, No. 1:10cv296, 2011 WL 3422689, at *7-8 (W.D.N.C. Mar. 28, 2011),
report and recommendation adopted, 2011 WL 3421489 (W.D.N.C. Aug. 4, 2011);
Cooley v. Bd. of Educ. of the City of Chicago, 703 F. Supp. 2d 772, 775 (N.D.
Ill. 2009).

19

school year (see Am. Compl. ¶¶ 12, 51), and that Broaddus,
Principal at Cool Spring and Ainsworth’s direct supervisor, and
Peppiat, Assistant Principal at Cool Spring, presented Ainsworth
with negative performance evaluations prior to the non-renewal
of her employment contract, (Am. Compl. ¶¶ 10, 16, 61-63, 68.)
These allegations, accepted as true and viewed in a light most
favorable to Plaintiff, raise the reasonable inference that the
Individual Defendants acted in the interest of their employer,
LCSB, and had sufficient control over the terms and conditions
of Ainsworth’s employment that they may be individually liable
under the FMLA.

It would be premature to conclude otherwise at

this stage of the litigation.
2.

FMLA Interference Claim

The basis of Ainsworth’s interference claim is LCSB’s
failure to reinstate her to her classroom position following the
expiration of her FMLA leave in December 2008.
89-90.)

(Am. Compl. ¶¶

Instead, LCSB allegedly assigned Ainsworth part-time

secretarial work for the remainder of the 2008-09 school year.
(Am. Compl. ¶¶ 42-44.)

The FMLA prohibits employers from

interfering with the ability of employees to exercise their
substantive (or “prescriptive”) rights under the FMLA.
U.S.C. § 2615(a)(1).

See 29

To state a claim of interference with FMLA

rights, the plaintiff must establish that “(1) she was an
eligible employee, (2) the defendant was an employer as defined

20

under the FMLA, (3) she was entitled to leave under the FMLA,
(4) she gave the employer notice of her intention to take leave,
and (5) the employer denied the employee FMLA benefits to which
she was entitled.”

Bullock v. Kraft Foods, Inc., No. 3:11cv36,

2011 WL 5872898, at *4 (E.D. Va. Nov. 22, 2011) (citing Edgar v.
JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006)).
Defendants argue that Ainsworth does not adequately plead the
fifth element given her failure to return to work after
expiration of FMLA leave in December 2008 and her physical
inability to perform the essential functions of her position due
to continued health issues.

(LCSB Mem. at 4-5.)

For the

following reasons, the Court agrees.
Under the FMLA, eligible employees are entitled to a
total of twelve workweeks of leave during any twelve-month
period due to a serious health condition that makes the employee
unable to perform the functions of her position.
2612(a)(1)(D).

29 U.S.C.

The FMLA also provides that an employee who

takes FMLA leave shall be entitled, on return from such leave
“to be restored by the employer to the position of employment
held by the employee when the leave commenced,” id. §
2614(a)(1)(A), or “to be restored to an equivalent position with
equivalent employment benefits, pay, and other terms and
conditions of employment, id. § 2614(a)(1)(B).

However, an

employee who remains “unable to perform an essential function of

21

the position” once her FMLA leave ends is not entitled to
restoration or another position.

29 C.F.R. § 825.216(c).

Thus, an employer does not violate the FMLA when it fails to
reinstate an employee who is physically unable to return to work
at the conclusion of the twelve-week period of FMLA leave.

See

Penn v. Cnty. of Fairfax, No. 06cv1449, 2008 U.S. Dist. LEXIS
109007, at *9 (E.D. Va. Feb. 1, 2008) (granting summary judgment
in favor of employer that terminated employee who was physically
unable to return to work at the end of FMLA leave), aff’d 289 F.
App’x 648 (4th Cir. 2008) (unpublished); Rodriguez v. Smithfield
Packing Co., Inc., 545 F. Supp. 2d 508, 523 (D. Md. 2008)
(citing Edgar, 443 F.3d at 513) (“[I]nability to work at the end
of the twelve-week period bars relief [under the FMLA] because
any prior violation caused no harm.”).5
Here, Ainsworth alleges that she was on FMLA leave
from August 27 to December 1, 2008 (over thirteen weeks).
Compl. ¶ 38.)

(Am.

She further alleges that, with LCSB’s permission,

she took additional, non-FMLA leave from December 2, 2008 to
January 27, 2009.

(Am. Compl. ¶ 39.)

It is therefore clear

from the allegations in the Amended Complaint that Ainsworth did

5

As Ainsworth notes in her opposition, these cases were decided on summary
judgment. Numerous cases have, however, decided this issue on Rule 12(b)(6)
motions. See, e.g., Peoples v. Langley/Empire Candle Co., No. 11-2469, 2012
WL 171340, at *3-4 (D. Kan. Jan. 20, 2012); Hofferica v. St. Mary Med. Ctr.,
--- F. Supp. 2d ----, 2011 WL 4374555, at *7 (E.D. Pa. Sept. 20, 2011);
Coffman v. Robert J. Young Co., Inc., No. 3:10-1052, 2011 WL 2174465, at *3
(M.D. Tenn. June 1, 2011), report and recommendation adopted, 2011 WL 2416745
(M.D. Tenn. June 14, 2011); Fleck v. WILMAC Corp., No. 10-05562, 2011 WL
1899198, at *8 (E.D. Pa. May 19, 2011).

22

not return to work until after her FMLA leave expired.
Ainsworth, in fact, concedes that she was not medically cleared
to return to work until January 5, 2009 -- and even then only on
a part-time basis.

(Am. Compl. ¶ 40.)

Ainsworth was medically

released to return to classroom work on March 25, 2009, (Am.
Compl. ¶ 43), with a restriction on duration of work which was
not lifted until August 21, 2009, (Am. Compl. ¶ 52).

Even

viewed in a light most favorable to Plaintiff, the assignment to
part-time secretarial work appears to have been a form of
accommodation given Ainsworth’s medical restrictions rather than
an attempt to interfere with her FMLA rights.
In sum, it is clear from the allegations in the
Amended Complaint that Ainsworth did not, and was physically
unable to, return to work upon expiration of her FMLA leave.
Consequently, LCSB was under no obligation to reinstate her to
her former, or an equivalent, position.6

Because Ainsworth was

not denied an FMLA benefit to which she was entitled, the Court
dismisses Ainsworth’s interference claim.
3.

FMLA Retaliation Claim

Ainsworth also alleges that LCSB violated the FMLA by
terminating her in retaliation for taking FMLA leave.

6

(Am.

That LCSB permitted Ainsworth to remain on leave of absence beyond her FMLA
leave does not change this result. See Ackerman v. Beth Israel Cemetery
Ass’n of Woodbridge, N.J., No. 09-1097, 2010 WL 2651299, at *7 (D.N.J. June
25, 2010) (“Employees who exceed the twelve weeks of leave the FMLA provides
for stand to lose their entitlement to job restoration even if their
employers provide additional, non-FMLA, leave.”) (internal quotation marks
omitted).

23

Compl. ¶ 102.)

In addition to providing substantive (or

“prescriptive”) rights to unpaid leave in certain situations,
the FMLA also provides proscriptive rights “that protect
employees from discrimination or retaliation for exercising
their substantive rights under the FMLA.”

Yashenko v. Harrah’s

N.C. Casino Co., 446 F.3d 541, 546 (4th Cir. 2006).

To state an

FMLA retaliation claim, a plaintiff must establish that: (1) she
engaged in a protected activity, (2) her employer took an
adverse employment action against her, and (3) the adverse
employment action was causally connected to the plaintiff’s
protected activity.

Id. at 551 (citation omitted).

Here, there is no dispute that Ainsworth engaged in a
protected activity by requesting FMLA leave.

Ainsworth also

suffered an adverse employment action when LCSB declined to
offer her an employment contract for the 2010-11 school year.
Courts confronted with FMLA retaliation claims have imported the
definition of “adverse employment action” used in the Title VII
context.

See Payne v. Fairfax Cnty., No. 1:05cv1446, 2006 WL

3196545, at *4 (E.D. Va. Nov. 1, 2006).

Adverse employment

actions are those that negatively impact the terms, conditions,
or benefits of employment, id., termination being the
quintessential example, see Yashenko, 446 F.3d at 551 (no
dispute that termination constituted an adverse employment
action).

That Ainsworth’s termination arose by way of non-

24

renewal of an employment contract is of no consequence.

See

Leibowitz v. Cornell Univ., 584 F.3d 487, 501 (2d Cir. 2009)
(“An employee seeking a renewal of an employment contract, just
like a new applicant or a rehire after a layoff, suffers an
adverse employment action when an employment opportunity is
denied and is protected from discrimination in connection with
such decisions under Title VII . . . .”); cf. Swaim v.
Westchester Acad., 208 F. Supp. 2d 579, 584-86 (M.D.N.C. 2002)
(holding that offer of ten-month renewal contract at a reduced
salary instead of customary twelve-month contract was an adverse
employment action for purposes of Title VII).
Defendants focus on the third element of Ainsworth’s
retaliation claim -- the causal connection between protected
activity and the adverse employment action.

According to

Defendants, Ainsworth’s absenteeism during the 2010-11 school
year, as alleged in the Amended Complaint, demonstrates that it
had a legitimate basis for deciding not to renew her employment
contract.

Defendants argue that other facts alleged in the

Amended Complaint, including LCSB’s continuing employment of
Ainsworth following her FMLA leave in 2008, make retaliatory
animus implausible.

The Court finds it premature to resolve

these issues at this stage of the litigation.

Ainsworth’s

allegations adequately establish a causal connection between her
termination and her FMLA leave for purposes of surviving these

25

Motions to Dismiss.

For one, temporal proximity between the

adverse employment action and the protected activity has been
deemed sufficient for purposes of establishing a prima facie
case of causality.
3196545, at *5.

Yashenko, 446 F.3d at 551; Payne, 2006 WL

Here, Ainsworth’s FMLA leave concluded on June

17, 2010, and her termination was effective June 21, 2010.
Pursuant to the low threshold articulated in the Fourth Circuit,
this connection sufficiently establishes a prima facie showing
of causality.

Ainsworth also alleges that she was treated

unfavorably as a result of her FMLA leave.

Specifically, she

alleges that, unlike other staff, she did not receive her
preferred assignment for the 2010-11 school year and that she
received negative feedback contrary to her actual performance in
the classroom.

(Am. Compl. ¶¶ 57, 62.)

These allegations,

accepted as true, raise Ainsworth’s right to relief on her
retaliation claim above the speculative level.
The Court also rejects Defendants’ argument that
because Ainsworth failed to return to work upon expiration of
her FMLA leave in June 2010, non-renewal of her employment
contract effected no harm upon her.

The problem with this

argument is that it conflates Ainsworth’s retaliation claim with
her interference claim.

“A retaliation claim under the FMLA

differs from an interference claim under the FMLA in that the
interference claim merely requires proof that the employer

26

denied the employee his entitlements under the FMLA, while the
retaliation claim requires proof of retaliatory intent.”

Bosse

v. Baltimore Cnty., 692 F. Supp. 2d 574, 588 (D. Md. 2010).

The

FMLA is not a strict liability statute and therefore employees
seeking to recover on an interference claim must establish that
the employer’s violation caused them harm.
507-08.

Edgar, 443 F.3d at

Under the retaliation theory, in contrast, “[t]he

employer’s motive is relevant because retaliation claims impose
liability on employers that act against employees specifically
because those employees invoked their FMLA rights.”

Id. at 508

(emphasis in original).
It is true, as discussed above, that once an employee
exceeds the duration of her FMLA leave, the employer is not
obligated by FMLA to keep that position open or reinstate the
employee upon her return.

See, e.g., Cehrs v. Ne. Ohio

Alzheimer's Research Ctr., 155 F.3d 775, 784-85 (6th Cir. 1998).
That an employer may have a legitimate basis for its employment
decision does not, however, provide it with a complete defense
to a “proscriptive” retaliation claim.

Keim v. Nat’l R.R.

Passenger Corp., No. 05-cv-4338, 2007 WL 2155656, at *6-7 & n.6
(E.D. Pa. July 26, 2007); see also Rogers v. AC Humko Corp., 56
F. Supp. 2d 972, 978 (W.D. Tenn. 1999) (“[T]he purposes of the
FMLA would be frustrated if an employer could escape from all
liability for a retaliatory discharge . . . simply because it

27

was shown that the employee could not have returned to work
after having taken FMLA leave.”).

Thus, while LCSB may have

been justified in terminating Ainsworth because she remained
absent at the end of her FMLA leave, this does not necessarily
preclude the finding that unlawful considerations may have
played a determinative role in its employment decision.

The

appropriate time for LCSB to present evidence supporting its
decision not to renew Ainsworth’s employment contract is summary
judgment.
Finally, the Individual Defendants argue that
Ainsworth does not sufficiently identify which individuals were
involved in terminating her employment.
at 9.)

The Court disagrees.

(Individual Defs.’ Mem.

At this stage of the litigation,

Ainsworth’s allegations adequately demonstrate that each of the
Individual Defendants engaged in conduct which -- viewed in a
light most favorable to Plaintiff -- qualify as retaliatory.
For these reasons, dismissal of Ainsworth’s retaliation claim is
inappropriate.
B.

Count III: ADA Claims

In Count III, Ainsworth alleges violations of the ADA.
The ADA prohibits discrimination “against a qualified individual
on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms,

28

conditions, and privileges of employment.”
12112(a).

42 U.S.C. §

Although organized under one count, Ainsworth brings

two separate claims under the ADA: (1) a claim for wrongful
discharge and (2) a claim for failure to accommodate.

LCSB

argues that Ainsworth fails to state a claim under either
theory.7

The Court addresses each claim in turn.
1.

Wrongful Discharge

In order to state a claim for ADA wrongful discharge,
a plaintiff must demonstrate that (1) she is within the ADA’s
protected class; (2) she was discharged; (3) at the time of her
discharge, she was performing the job at a level that met her
employer’s legitimate expectations; and (4) her discharge
occurred under circumstances that raise a reasonable inference
of unlawful discrimination.

Haulbrook v. Michelin N. Am., Inc.,

252 F.3d 696, 702 (4th Cir. 2001).

One falls within the ADA’s

protected class if she is “a qualified individual with a
disability.”

Id. (citation omitted).

LCSB spends most of its

energy arguing that Ainsworth’s ADA wrongful discharge claim
fails because she was not a qualified individual with a
disability.

Under the ADA, a qualified individual is “an

individual who, with or without reasonable accommodation, can
perform the essential functions of the employment position that
7

In the Amended Complaint, Ainsworth asserts her ADA claims against both LCSB
and the Individual Defendants. In her opposition brief, she concedes that no
cause of action exists against the Individual Defendants for ADA violations.
(Opp. to Individual Defs.’ Mot. to Dismiss [Dkt. 21] at 10.) Accordingly,
Count III is dismissed with prejudice insofar as it is asserted against the
Individual Defendants.

29

such individual holds or desires.”

42 U.S.C. § 12111(8).

According to LCSB, Ainsworth was not a qualified individual
because she could not perform an essential function of her job
-- i.e., attendance at work.
“In addition to possessing the skills necessary to
perform the job in question, an employee must be willing and
able to demonstrate these skills by coming to work on a regular
basis.”

Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d

209, 213 (4th Cir. 1994).

Therefore, a regular and reliable

level of attendance is an essential function of most jobs.

Id.

Moreover, this Court has previously concluded that FMLA leave
may be held against an employee in determining whether she is
able to perform the essential functions of her job within the
meaning of the ADA.

Payne, 2006 WL 3196545, at *8.

Here, Ainsworth was released to return to work full
time without restrictions on August 21, 2009 (Am. Compl. ¶ 52),
but continued to miss work on a regular basis.

Before February

18, 2010, Ainsworth missed thirty days of work for medical
reasons and was excused from work by her doctors on February 19,
2010, March 5 to 8, 2010, March 18 to 19, 2010, March 25 to 26,
2010, and April 7, 2010.

(Am. Compl. ¶ 67.)

Ainsworth took

FMLA leave from April 12 to May 28, 2010 and June 1 to 17, 2010,
and took additional, non-FMLA leave from June 18 to 21, 2010.
(Am. Compl. ¶¶ 72-73.)

Ainsworth also pleads that she was to

30

continue nerve block treatments until August 2011.

(Am. Compl.

¶ 80.)
While it is true that regular attendance is a
necessary element of most jobs, it is also true that modified
work schedules can constitute a form of reasonable
accommodation.

Leschinskey v. Rectors & Visitors of Radford

Univ., No. 7:11cv189, 2011 WL 5029813, at *2 (W.D. Va. Oct. 24,
2011) (“The term reasonable accommodation may include

. . .

part-time or modified work schedules.”) (quoting 42 U.S.C. §
12111(9)).

And, although an employer need not “wait

indefinitely” for an employee’s medical conditions to be
corrected, Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995), many
courts have held that “a period of leave can in some
circumstances be a reasonable accommodation required of an
employer under the ADA,” Garcia-Ayala v. Lederle Parenterals,
Inc., 212 F.3d 638, 652 (1st Cir. 2000) (emphasis in original);
Kitchen v. Summers Continuous Care Ctr., LLC, 552 F. Supp. 2d
589, 595 (S.D. W.Va. 2008).
Whether periods of leave may be considered a
reasonable form of accommodation presents a “troublesome
problem, partly because of the oxymoronic anomaly it harbors”
and also “because of the daunting challenge of line-drawing it
presents.”

Garcia-Ayala, 212 F.3d at 651.

Indeed, courts have

held that this issue is generally a question of fact, Pandazides

31

v. Va. Bd. of Educ., 13 F.3d 823, 833 (4th Cir. 1994), and is
more appropriately addressed at summary judgment, see Shannon v.
City of Philadelphia, No. 98-5277, 1999 WL 126097, at *3 (E.D.
Pa. Mar. 5, 1999) (“Whether granting the additional leave
requested was a reasonable accommodation and whether the
[defendant] could provide it to [plaintiff] without undue
hardship are factual inquiries that are not properly decided in
the context of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6).”).
Although Ainsworth missed substantial time at work, it
is at least plausible at this stage of the litigation that her
leaves of absence qualify as a form of reasonable accommodation.
Notably, Ainsworth was a teaching assistant and not a teacher,
which suggests that a modified work schedule may have been a
workable arrangement.

Ainsworth also alleges that despite her

absences, she performed well in the classroom and received
increased responsibility as a result.

(Am. Compl. ¶ 58.)

For

these reasons, the Court finds it premature to conclude that
Ainsworth is not a “qualified employee” at this time.
LCSB’s remaining arguments are likewise unavailing.
Contrary to LCSB’s assertion, non-renewal of Ainsworth’s
employment contract counts as “discharge” for purposes of the
ADA.

See Fontenot v. Our Lady of Holy Cross Coll., No. 11-1375,

2011 WL 4368836, at *5 (E.D. La. Sept. 19, 2011) (finding

32

allegation that defendant decided not to renew plaintiff’s
employment contract for 2009-10 academic year based on
disability sufficient for ADA wrongful discharge claim).

LCSB

also argues that Ainsworth’s allegations demonstrate she was not
performing her job at a level that met her employer’s legitimate
expectations when the non-renewal decision was made.

To the

extent LCSB is referring to Ainsworth’s absences (see Am. Compl.
¶ 68), an employee’s taking of leave does not per se preclude
the employee from proving she was meeting her employer’s
legitimate expectations.

See Gladden v. Winston Salem State

Univ., 495 F. Supp. 2d 517, 523 (M.D.N.C. 2007) (rejecting
argument that plaintiff’s ADA wrongful discharge claim should be
dismissed because absence at time of termination meant that
plaintiff could prove under no set of facts he was performing
his job at a level that met employer’s expectations).

While

Ainsworth admits that she received negative feedback from
Broaddus and Peppiat concerning her performance in the
classroom, she asserts that she was performing her job well and
that Broaddus and Peppiat’s statements were false.
¶ 62.)

(Am. Compl.

In addition, Ainsworth alleges that she consistently

received positive performance evaluations prior to that time
(Am. Compl. ¶¶ 28-30), that she was given increased
responsibility in the classroom (Am. Compl. ¶ 58), and that even
her negative performance evaluation noted that she was “very

33

organized and completes clerical tasks efficiently,” (Am. Compl.
¶ 68).

Given the apparent contradiction between these

allegations and LCSB’s contention that Ainsworth failed to meet
its legitimate expectations, dismissal of Ainsworth’s wrongful
discharge claim on this basis is inappropriate at this stage of
the litigation.

Accordingly, the wrongful discharge claim

survives as to LCSB.
2.

Failure to Accommodate

An ADA failure to accommodate claim consists of the
following elements: (1) the employee was an individual who had a
disability within the meaning of the statute; (2) the employer
had notice of the disability; (3) with reasonable accommodation
the employee could perform the essential functions of the
position; and (4) the employer refused to make such
accommodations.

Rhoads v. Fed. Deposit Ins. Corp., 257 F.3d

373, 387 n.11 (4th Cir. 2001).

LCSB again argues that Ainsworth

is not a qualified individual and that no reasonable
accommodation would have enabled her to perform the essential
functions of her position.

These arguments fail for the reasons

stated in connection with Ainsworth’s wrongful discharge claim.
In addition, however, LCSB argues that Ainsworth’s
failure to accommodate claim should be dismissed because she
fails to allege that she requested a reasonable accommodation.
(LCSB Mem. at 10.)

In response, Ainsworth points to her

34

requests for FMLA leave so she could receive nerve block
injections to the back of her head and neck.
to Dismiss [Dkt. 20] at 21.)

(Opp. to LCSB Mot.

The problem for Ainsworth is that

LCSB granted these periods of FMLA leave.

Indeed, the Amended

Complaint does not point to a single instance where LCSB denied
Ainsworth leave.

To the extent Ainsworth’s claim is premised on

her termination (i.e., so LCSB would no longer have to grant
leave), such a theory conflates failure to accommodate with
wrongful discharge.

See Vlasek v. Wal-Mart Stores, Inc., No. H-

07-0386, 2007 WL 2402183, at *5 (S.D. Tex. Aug. 20, 2007) (“It
is generally accepted that a failure to accommodate is not like
or reasonably related to an allegation of termination.”)
(collecting cases).
While Ainsworth is correct that a plaintiff need not
use “magic words” in making a request, the plaintiff must make
clear to the employer that she wanted assistance for her
disability.

Parkinson v. Anne Arundel Med. Ctr., 79 F. App’x

602, 604-05 (4th Cir. 2003) (unpublished) (citing Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999)).
Nowhere in the Amended Complaint does Ainsworth allege that she
requested some form of accommodation other than leaves of
absence.
Lastly, Ainsworth argues that LCSB had an affirmative
duty to engage in “a flexible, interactive dialogue with [her]

35

in a good faith effort to discuss and exhaust reasonable
accommodations.

(Opp. to LCSB Mot. to Dismiss at 22 (citing 29

C.F.R. § 1630.2(o)(3)).)

“However, an employee cannot base a

reasonable accommodation claim solely on the allegation that the
employer failed to engage in an interactive process.”

Walter v.

United Airlines, Inc., 232 F.3d 892, 2000 WL 1587489, at *4 (4th
Cir. Oct. 25, 2000) (unpublished table decision) (citing Rehling
v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir. 2000)).
“Rather, the employee must demonstrate that the employer’s
failure to engage in the interactive process resulted in the
failure to identify an appropriate accommodation for the
disabled employee.”

Id.

Here, Ainsworth does not allege that LCSB failed to
engage in such a process with her.

And, as noted above,

Ainsworth does not allege that she requested a reasonable
accommodation other than leave nor does she allege that such a
request was ever denied.
warrants dismissal.

The failure to make these allegations

See Morgan v. Rowe Materials, LLC, No.

3:08cv576, 2009 WL 1321514, at *3 (E.D. Va. May 11, 2009)
(dismissing failure to accommodate claim where plaintiff failed
to allege whether he sought reasonable accommodations and
whether such accommodations were denied).

Accordingly,

Ainsworth’s failure to accommodate claim is dismissed.

36

C.

Count IV: Intentional Infliction of Emotional
Distress Claim

In Count IV of the Amended Complaint, Ainsworth
alleges a state-law claim for IIED.8

(Am. Compl. ¶¶ 126-37.)

To

establish a claim for IIED, a plaintiff must sufficiently allege
that (1) the wrongdoer’s conduct was intentional or reckless;
(2) the conduct was outrageous or intolerable; (3) there was a
causal connection between the wrongdoer’s conduct and the
resulting emotional distress; and (4) the resulting emotional
distress was severe.

Veney v. Ojeda, 321 F. Supp. 2d 733, 748

(E.D. Va. 2004) (citations omitted); Supervalu, Inc. v. Johnson,
276 Va. 356, 369-70 (Va. 2008).
generally disfavored.
2007).

This cause of action is

Almy v. Grisham, 273 Va. 68, 81 (Va.

Specifically, liability for IIED has been found “only

where the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.”

Russo v. White, 241 Va.

23, 27 (Va. 1991) (citation omitted).

“[L]iability clearly does

not extend to mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities.”

8

Gaiters v. Lynn, 831

The Court is exercising supplemental jurisdiction over Ainsworth’s IIED
claim pursuant to 28 U.S.C. § 1367(a). In exercising supplemental
jurisdiction over the state law claim, the Court must apply Virginia’s
substantive law. Johnson v. Hugo’s Skateway, 974 F.2d 1408, 1416 n.7 (4th
Cir. 1992); Brown v. Mitchell, 327 F. Supp. 2d 615, 628 n.27 (E.D. Va. 2004).

37

F.2d 51, 53 (4th Cir. 1987).

It “arises only when the emotional

distress is extreme, and only where the distress inflicted is so
severe that no reasonable person could be expected to endure
it.”

Russo, 241 Va. at 27 (citation omitted).
The Fourth Circuit held in Hatfill v. N.Y. Times Co.,

416 F.3d 320, 337 (4th Cir. 2005), that under Federal Rule of
Civil Procedure 8 a plaintiff is not required to plead IIED with
the particularity usually required under Virginia law.
Nevertheless, even under the Hatfill notice pleading standard,
Ainsworth has failed to establish an IIED claim.

In support of

her IIED claim, Ainsworth alleges that certain of the Individual
Defendants branded her a “problem” employee with “issues,”
criticized her work performance, and otherwise treated her
negatively.

While this conduct may have upset Ainsworth, it

simply does not rise to the level of “atrocious” conduct that
goes “beyond all possible bounds of decency” and is “utterly
intolerable in a civilized community,” as required by Virginia
law.

Russo, 241 Va. at 27.

Moreover, courts applying Virginia

law have regularly recognized that it is especially difficult to
establish IIED in the employment context.

See, e.g., Musselman

v. Merck & Co., Inc., No. 1:06cv845, 2006 WL 2645174, at *5-6
(E.D. Va. Sept. 13, 2006) (holding that series of employment
actions culminating in termination failed to give rise to an
IIED claim); Burke v. AT & T Technical Servs. Co., Inc., 55 F.

38

Supp. 2d 432, 441 (E.D. Va. 1999) (holding that a demotion and
termination allegedly based on racial discrimination, while
“insidious and unacceptable,” did not constitute outrageous
conduct); Beardsley v. Isom, 828 F. Supp. 397, 401 (E.D. Va.
1993) (holding that actions allegedly taken in retaliation for
the plaintiff’s complaints of sexual harassment did not rise to
the requisite level of severity), aff'd sub nom., Beardsley v.
Webb, 30 F.3d 524 (4th Cir. 1994).

Accordingly, the Court

dismisses Ainsworth’s IIED claim.
IV.

Conclusion

For these reasons, the Court will grant in part and
deny in part LCSB’s Motion and grant in part and deny in part
the Individual Defendants’ Motion.
An appropriate Order will issue.

March 16, 2012
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

39