Craft v. Fairfax County Government

Filing 16

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 4/26/2016. (rban, )

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

ANTHONY D. CRAFT,

)
)
)
)
)
)
)
)
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Plaintiff,
v.
FAIRFAX COUNTY GOVERNMENT,
Defendant.

M E M O R A N D U M

1:16cv86(JCC/MSN)

O P I N I O N

This matter is before the Court on Defendants’ Motion
to Dismiss.

[Dkt. 8]

For the following reasons, the Court

grants Defendant’s motion to dismiss and dismisses Plaintiff’s
Complaint [Dkt. 1] without prejudice.
I. Background
At the motion to dismiss stage, the Court must read
the complaint as a whole, construe the complaint in the light
most favorable to the plaintiff, and accept the facts alleged in
the complaint as true.
(2009).

Ashcroft v. Iqbal, 556 U.S. 662, 678

The facts below are taken from Plaintiff’s Complaint

and the attached documents.1
Plaintiff Anthony Craft (“Craft” or “Plaintiff”) was

1

For ease of reference, attached documents are referenced by the
exhibit number assigned them by Defendant. However, all of
Defendant’s exhibits are drawn from the over 1,300 pages of
documents attached to Plaintiff’s complaint.
1

employed by the Fairfax County Fire and Rescue Department
(“FRD”) as a firefighter until July 31, 2015.

(Compl. at 1, 3.)

On August 22, 2013, Craft suffered a work related back injury
while performing his duties as a firefighter.

(Id.)

After

Craft visited several physicians, Defendant Fairfax County (“the
County” or “Defendant”) accepted Craft’s claim as compensable
pursuant to the Virginia Workers’ Compensation Act through its
workers’ compensation claims administrator, Corvel.

(Id. at 1,

2; Ex. 1.)
On May 19, 2014, after a series of medical procedures
including two epidural injections and back surgery for a
slipped disc, Craft received a memorandum from FRD documenting
that he had been unable to perform his duties as a firefighter
for over nine months.

(Compl. at 2; Ex. 2; Ex. 3.)

That

memorandum referenced FRD’s Standard Operating Procedure
02.03.06, which provides FRD employees such as Craft one
calendar year to return to full duty.

(Ex. 3.)

Employees who

are unable to perform their job duties after that time period
are subject to separation from the FRD.

(Id.)

That same

memorandum presented Craft with six options moving forward if he
was unable to return to full duty. (Compl. at 2; Ex. 3.)

Craft

was notified that if he was unable to return to full duty by
August 22, 2014, the FRD could begin the process for his
involuntary separation.

(Ex. 3.)
2

Craft ultimately chose to

pursue referral to the Uniformed Retirement Board for service
connected disability retirement and notified the FRD of that
choice via memorandum on July 30, 2014.

(Compl. at 2; Ex. 4.)

The Retirement Administration Agency (“Retirement Agency”), a
County agency, received Craft’s application for disability
retirement on August 5, 2014.

(Compl. at 2; Ex. 5.)

The

Retirement Agency informed Craft in writing that his application
would be referred to its Medical Examining Board (“Medical
Board”) which would consider his application and make
recommendations to the Retirement Agency’s Board of Trustees
(“Retirement Board”).

(Id.)

The Retirement Board would

ultimately be responsible for determining whether Craft was
eligible for disability retirement. (Id.)

On August 7, 2014,

the Retirement Agency requested a copy of Craft’s workers’
compensation file and a statement of compensability from the
County’s Risk Management Division (“Risk Management”). (Ex. 6.)
In its October 15, 2014 response, Risk Management indicated that
while the County had accepted Craft’s workers’ compensation
claim and compensable, there were differing medical opinions as
to Craft’s ability to return to work once he reached maximum
medical improvement, which was anticipated to occur by December
1, 2014. (Id.)

Ultimately, Risk Management made no

recommendation as to whether Craft qualified for serviceconnected disability retirement.

(Id.)
3

On March 3, 2015, in response to a request from Craft
for a copy of his disability file, the Retirement Agency
informed Craft that the Medical Board was waiting for him to
send them additional medical documentation.

(Ex. 7.)

Attached

to the Retirement Agency’s March 3, 2015 letter was a letter
dated January 26, 2015, in which the Retirement Agency informed
Craft that the Medical Board could not make recommendations on
his case to the Retirement Board until it had information
concerning whether Craft had reached maximum medical improvement
from his injury.

(Id.)

The January 26, 2015 letter instructed

Craft to complete a functional capacity evaluation in order to
provide the Medical Board with needed information concerning his
physical capabilities and limitations once he reached maximum
medical improvement.

(Id.)

On March 27, 2015, FRD notified Craft that he was
nearing the end of the maximum allowable hours of injury leave
that the County would permit for his back injury pursuant to
Fairfax County Personnel/Payroll Administration Policies and
Procedures Memorandum number 23 Section 3 (3.7).

(Ex. 8.)

Craft was informed that after the exhaustion of his allotted
injury leave on April 9, 2015, he would be able to use his own
personal leave until that leave was exhausted.

(Id.)

Craft was

further informed that upon exhaustion of his personal leave
balances, Craft would be placed on leave without pay and would
4

no longer receive a paycheck from the County.

(Id.)

On April 21, 2015, FRD employee Dwayne Harman, Craft’s
case manager, informed Craft that the Medical Board was still
awaiting documentation of whether Craft had reached maximum
medical improvement, and a copy of a functional capacity
evaluation before it could reach a decision on his disability
application. (Ex. 9.)
On May 28, 2015, Craft participated in a functional
capacity evaluation, which resulted in the issuance of a summary
and recommendations for Craft’s return to employment.

(Ex. 11.)

The summary suggested that Craft could return to employment with
the county either in a position with a light physical demand
level or after participation in a work conditioning program that
had the potential to increase his ability to work in a position
with physical demands.

(Id.)

On June 26, 2015, Craft received

a memorandum from FRD proposing separation of employment due to
Craft’s failure to return to full duty, and the lack of a
foreseeable return to duty within the time allowed by County
policy.

(Ex. 12.)

On July 23, 2015, Fire Chief Richard Bowers

approved Craft’s separation from service due to his ongoing
medical condition.
July 31, 2015.

The effective date of Craft’s separation was

(Ex. 13.)

After Craft was separated from employment by the
County, his application for disability retirement remained
5

before the Retirement Board.

Throughout this time Craft

continued to seek a variety of treatments from several different
physicians.

An Independent Medical Examination (“IME”) was

performed on Craft by a Dr. Dhruv B. Prateder.

(Ex. 14.)

Dr.

Prateder concluded that there was no objective medical finding
that would explain Craft’s complained of symptoms, and that
there was no medical reason that Craft’s back injury prevented
him from working.

(Id.)

On October 2, 2015, after receiving

Dr. Prateder’s opinion, the Medical Board issued a report to the
Retirement Board containing its findings, and its conclusion
that Craft was not incapacitated or unable to perform his job
duties.

(Ex. 15.)

Craft and his wife attended a meeting of the

Retirement Board on October 21, 2015, where Craft presented
evidence as to his injury and his asserted disability.
at 3.)

(Compl.

On December 16, 2015, Craft was notified that the

Retirement Board had denied his application for disability
retirement. (Ex. 16.)
decision.

Craft has appealed the Retirement Board’s

(Compl. at 3.)
Craft has filed two complaints with the Equal

Employment Opportunity Commission (“EEOC”) related to his
employment with the FRD.

Craft’s first charge, filed April 10,

2015, alleged that he had been discriminated against by the
Retirement Agency’s delay in considering his application due to
his race, sex, and disability.

(Compl. at 2; Ex. 17.)
6

On

October 27, 2015, the EEOC determined that the charge did not
establish a violation of anti-discrimination statutes, and
issued Craft a right-to-sue letter.

(Ex. 18.)

Craft’s second

charge, filed September 11, 2015, contends that his separation
from employment with the County was in retaliation for his first
EEOC charge.

(Compl. at 3.)

Craft’s complaint does not allege

that has received, or that he is entitled to, a right-to-sue
letter associated with his September 11, 2015 EEOC charge.
Craft’s complaint alleges that he was discriminated
against by Fairfax County Government in violation of the
Americans with Disabilities Act (“ADA”) 29 U.S.C. § 623(a)(1),
and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e, et seq.

Defendant filed the instant motion to

dismiss the case for lack of jurisdiction and failure to state a
claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6), respectively.

The motion has been fully briefed and

argued and is now ripe for decision.
II. Legal Standard
Defendant moves to dismiss under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6).

Defendant asserts that

this Court lacks subject matter jurisdiction over the
Plaintiff’s retaliation claim stemming from his separation from
employment because Plaintiff has yet to exhaust his
administrative remedies before the EEOC.
7

In employment

discrimination claims, “[r]eceipt of, or at least entitlement
to, a right-to-sue letter is a jurisdictional prerequisite that
must be alleged in a plaintiff’s complaint.”

Davis v. N.C.

Dep’t of Corr., 48 F.3d 134, 140 (4th Cir. 1995); See also
McInnis v. N.C. Dep’t of Env. And Nat’l Res., 223 F.Supp.2d 758
(M.D.N.C. 2002)(jurisdictional prerequisites must be satisfied
in an ADA discrimination claim.)

Where the complaint does not

allege that the plaintiff has satisfied the jurisdictional
prerequisite to filing suit, the plaintiff has not properly
invoked the Court’s jurisdiction.

United Black Firefighters of

Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
Entitlement to an EEOC right to sue letter is triggered 180 days
after the date on which the EEOC charge is filed.

Perdue v. Roy

Stone Transfer Corp., 690 F.2d 1091, 1093 (4th Cir. 1982).
“The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of a complaint; importantly, [a Rule 12(b)(6)
motion] does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”

Edwards

v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)
(citation omitted) (internal quotation marks omitted).

While

the court must accept well-pleaded allegations as true when
ruling on a Rule 12(b)(6) motion, the court need not accept as
true legal conclusions disguised as factual allegations.
Ashcroft v. Iqbal, 556 U.S. 662, 679-81 (2009).
8

Therefore, a

pleading that offers only a “formulaic recitation of the
elements of a cause of action will not do.”

Iqbal, 556 U.S. at

678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

Nor

will a complaint that tenders mere “naked assertion[s]” devoid
of “further factual enhancement.”
Twombly, 550 U.S. at 557.

Iqbal, 556 U.S. at 678;

In the context of discrimination

claims, “while a plaintiff is not required to plead facts that
constitute a prima facie case in order to survive a motion to
dismiss, see Swierkeiwicz v. Sorema N.A., 534 U.S. 506, 510-15
(2002), ‘[f]actual allegations must be enough to raise a right
to relief above the speculative level.’”

Coleman v. Maryland

Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff’d sub
nom Coleman v. Court of Appeals of Maryland, 132 S. Ct. 1327,
182 L. Ed. 2d 296 (2012)(quoting Twombly, 550 U.S. at 555).

In

the instance where sufficient facts are alleged in the complaint
to rule on an affirmative defense, such as the statute of
limitations, the defense may be reached by a motion to dismiss
filed under Rule 12(b)(6).

This principle only applies,

however, if all facts necessary to the affirmative defense
“clearly appear[ ] on the face of the complaint.”

Goodman v.

Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (emphasis in
original); see also 5B Wright & Miller, Federal Practice &
Procedure § 1357.

9

In considering a motion to dismiss, a court is limited
to considering the pleadings, documents attached to the
pleadings, documents integral to, relied on, or referenced to
within the pleadings, and official public records pertinent to
the plaintiff’s claims.

See Philips v. Pitt Cty. Mem’l Hosp.,

572 F.3d 176, 180 (4th Cir. 2009); Witthohn v. Fed. Ins. Co.,
164 F. App'x 395, 396 (4th Cir. 2006); Gasner v. Cty. of
Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va. 1995).
III. Analysis
Plaintiff had not received, nor was he entitled to, an
EEOC right to sue letter on his second EEOC charge when he
initially filed this action.

He became entitled to a right to

sue letter from the EEOC on that charge on March 9, 2016.
Because Plaintiff had not received, nor was he entitled to, a
right to sue letter when he filed his complaint, his retaliation
claim must be dismissed pursuant to Rule 12(b)(1) for lack of
jurisdiction.
However, by the time Defendant’s motion to dismiss
became ripe for decision, Plaintiff was entitled to a right to
sue letter on his second EEOC charge.

Because Plaintiff could

easily amend his complaint to now bring his retaliation claim
within the jurisdiction of this Court, and pro se complaints are
“to be liberally construed”, the Court will examine the
substance of Plaintiff’s retaliation claims stemming from his
10

separation under the Rule 12(b)(6) standard as well as those
stemming from his earlier charge.

Erickson v. Pardus, 551 U.S.

89, 94 (2007)(quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)); see also Settlers Crossing, L.L.C. v. U.S. Home Corp.,
383 F. App’x 286, 288 (4th Cir. 2010) (affirming district
court’s finding of lack of subject matter jurisdiction and
alternative dismissal on the merits); Foxworth v. United States,
No. 3:13-cv-291, 2013 WL 5652496, at *4-6 (E.D. Va. Oct. 16,
2013) (“Accordingly, even if the Court found jurisdiction to be
proper, Foxworth’s Complaint fails to state a claim upon which
relief can be granted.”).
A.

Plaintiff’s Claims stemming from the April 10, 2015
EEOC Charge
In his April 10, 2015 EEOC charge Plaintiff claimed

that Defendant was intentionally delaying his application for
retirement and medical coverage in violation of Title VII and
the ADA.

In order to survive a motion to dismiss on a

discrimination claim under either Title VII or the ADA, the
plaintiff need only allege facts which establish the
plausibility of the alleged discrimination.
at 190.

Coleman, 636 F.3d

Plaintiff need not plead facts sufficient to constitute

a prima facie case under the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973),
but courts may look to the requirements of a prima facie case as
11

a guide in assessing the plausibility of plaintiff’s claim for
relief.

See Coleman, 636 F.3d at 190 (reciting elements of a

prima facie case under McDonnell Douglas en route to affirming
dismissal for failure to state a claim).

While the McDonnell

Douglas framework was developed in the context of Title VII
claims, it is applied as adapted to “appropriate claims under
the ADA.”

Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53

F.3d 55, 58 (4th Cir. 1995).
According to the McDonnell Douglas scheme, a Plaintiff
must “put forth probative evidence indicating that the employer
intentionally discriminated against [him] . . .” through either
direct evidence of discrimination, or through circumstantial
evidence. Whitaker v. Titmus Optical Inc., 311 F. Supp. 2d 522,
524 (E.D. Va. 2002), citing McDonnell Douglas Corp. 411 U.S. at
802-05.

Under the McDonnell Douglas burden shifting scheme,

circumstantial proof requires the plaintiff to make a prima
facie case of age discrimination, then “the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason
for the adverse employment action” or “but for” causation will
be presumed.

Hill v. Lockheed Martin Logistics Mgmt., Inc., 354

F.3d 277, 285 (4th Cir. 2004) (abrogated on other grounds).
1.

Plaintiff’s Title VII Claim

In order to establish a prima facie case of
discrimination under Title VII, the plaintiff must show
12

“(1)membership in a protected class; (2) satisfactory job
performance; (3) adverse employment action [. . .]; and (4) that
similarly situated employees outside the protected class
received more favorable treatment.”

White v. BFI Waste Servs.,

LLC, 375 F.3d 288, 295 (4th Cir. 2004).

Although Plaintiff here

does not allege any facts on the face of his complaint which
would establish membership in a protected class, Plaintiff’s
EEOC charges make clear that Plaintiff is an African-American
male.

Therefore Plaintiff is a member of a protected class

under Title VII.

However, Plaintiff fails to allege facts which

could plausibly show that he had been subjected to an adverse
employment action at the time of his April 10, 2015 EEOC charge.
An adverse employment action is a discriminatory act
which “adversely affect[s] the terms, conditions, or benefits of
the plaintiff’s employment.”

VonGunten v. Md., 243 F.3d 858,

865 (4th Cir. 2001)(quoting Munday v. Waste Mgmt of N. Am.,
Inc., 126 F.3d 239, 243 (4th Cir. 1997)).

In his April 10, 2015

EEOC charge, Plaintiff alleged only that the Retirement Agency
and the Medical Board were impermissibly delaying the processing
of his application.

This delay was resolved shortly thereafter,

with the Medical Board issuing a recommendation on October 2,
2015 and the Retirement Board issuing their denial of
Plaintiff’s application on December 16, 2015.

The slight,

quickly resolved delay in processing Plaintiff’s application for
13

disability retirement was not an adverse employment action for
purposes of Title VII, as it did not adversely affect the terms,
conditions, or benefits of Plaintiff’s employment.
Construing Plaintiff’s pro se complaint liberally, it
appears that Plaintiff also claims that the Retirement Agency
discriminated against him by denying his application for
disability retirement.

Although Plaintiff’s EEOC charge did not

explicitly allege discrimination through denial of his
application for disability retirement, his claim of
discrimination by the later denial of his application on
December 16, 2015 is “reasonably related to [his] EEOC charge
and can be expected to follow from a reasonable administrative
investigation.”

Syndor v. Fairfax Cty., Va., 681 F.3d 591, 594

(4th Cir. 2012)(quoting Smith v. First Union Nat’l Bank, 202
F.3d 234, 247 (4th Cir. 2000)).

Therefore, the fact that the

December 16, 2015 denial of Plaintiff’s application does not
appear on, and occurred after filing of the April 10, 2015 EEOC
charge does not prevent the Court from addressing the merits of
that claim.
However, Plaintiff is also pursuing an internal appeal
of the Retirement Agency’s denial.

In the analogous context of

internal appeals in ERISA claims, the Fourth Circuit has held
that a claimant is generally required to exhaust internal
administrative remedies before bringing an action in court.
14

See

Makar v. Health Care Corp. of Mid-Atlantic (Carefirst), 872 F.2d
80, 82 (4th Cir. 1989).

Plaintiff has appealed the Retirement

Agency’s denial of his application for disability retirement,
and that appeal is still pending.

Plaintiff has not alleged any

facts indicating that his appeal will be futile.

Accordingly,

because Plaintiff has not exhausted the internal administrative
remedies for his claim that the Retirement Agency discriminated
against him by denying his application for disability benefits,
the Court dismisses any such claim without prejudice pending the
resolution of Plaintiff’s appeal.
2.

Plaintiff’s ADA Claim

Turning now to Plaintiff’s claim under the ADA, it is
unclear whether Plaintiff is pursuing a wrongful termination
claim under the ADA, or a failure to accommodate claim under the
ADA.

Construing his complaint liberally, the Court will address

both potential theories of recovery under the ADA.

To succeed

with a claim for wrongful termination under the ADA, a plaintiff
must allege facts which establish the plausibility of success
either through direct evidence of discrimination or the
McDonnell Douglas burden shifting scheme.

A prima facie case

for wrongful discharge under the ADA requires the plaintiff to
show: (1) the plaintiff has a disability; (2) the plaintiff was
discharged; (3) at the time of discharge, the plaintiff was
performing the job at a level that met his employer’s legitimate
15

expectations; and (4) the plaintiff’s discharge occurred under
circumstances that raise a reasonable inference of unlawful
discrimination.

Haulbrook v. Michelin N. Am., 252 F.3d 696, 702

(4th Cir. 2001); Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, 53
F.3d 55, 58 (4th Cir. 1995).

Additionally, the plaintiff must

establish that he is a “qualified individual with a disability.”
Shin v. Univ. of Md. Med. Sys. Corp., 369 Fed. App’x 472, 479
(4th Cir. 2010).

A qualified individual with a disability is

“an individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires.”

Id.

(quoting 42 U.S.C. §12111(8)).
In order to succeed with a claim for failure to
accommodate, a plaintiff must show that (1) he has a disability;
(2) his employer had notice of his disability; (3) he could
perform the essential functions of his job with a reasonable
accommodation; and (4) the employer refused to make such a
reasonable accommodation.

Wilson v. Dollar Gen. Corp., 717 F.3d

337, 345 (4th Cir. 2013).
Under the facts alleged, Plaintiff cannot plausibly
show that he is a qualified individual with a disability, nor
can he show that he could perform the essential functions of his
job with a reasonable accommodation.

Plaintiff himself contends

in his Memorandum in Opposition of Defendant’s Motion to Dismiss
16

that he “will never be able to perform duties as a firefighter.”
(Pl.’s Mem. in Opp. [Dkt. 12] at 10 (emphasis in original).)
Likewise, Plaintiff’s complaint alleges that he “could no longer
perform the job as a firefighter” due to his injury.
2-3.)

(Compl. at

Plaintiff’s contention that he was entitled to disability

retirement is premised on the assertion that he was no longer
physically able to work for Fairfax County, even in a low
physical workload position.

Because Plaintiff concedes that he

could no longer perform his duties with or without
accommodations, he cannot make a prima facie case of either
wrongful termination or failure to accommodate under the ADA.
The facts alleged in Plaintiff’s complaint and the documents
attached thereto and referenced therein fail to suggest any
plausible inference of discrimination based on Plaintiff’s
disability.

Accordingly, the Court grants Defendant’s motion to

dismiss with respect to Plaintiff’s claims stemming from his
April 10, 2015 EEOC charge.
B.

Plaintiff’s Claims stemming from the September 11,
2015 EEOC Charge
Plaintiff’s September 11, 2015 EEOC Charge alleges

that his termination from FRD was an impermissible retaliation
for his initial EEOC charge in violation of Title VII.

In order

to succeed with a claim for retaliatory action in violation of
Title VII, a plaintiff must either have direct evidence of
17

retaliation, or proceed through the McDonnell Douglas framework,
making a prima facie case of retaliation by demonstrating “(i)
that []he engaged in protected activity, (ii) that h[is]
employer took adverse action against h[im], and (iii) that a
causal relationship existed between the protected activity and
the adverse employment action.”

Foster v. Univ. of Maryland-E.

Shore, 787 F.3d 243, 249 (4th Cir. 2015)(internal quotations and
alterations omitted).

Courts have held that, in establishing a

prima facie case of retaliation, “a causal connection . . .
exists where the employer takes an adverse employment action
against an employee shortly after learning of the protected
activity.”

Silva v. Bowie State Univ., 172 Fed. Appx. 476, 478

(4th Cir. 2006)(quoting Price v. Thompson, 380 F.3d 209, 213
(4th Cir. 2004)).
Defendant admits that Plaintiff engaged in a protected
activity when he filed his April 10, 2015 EEOC charge.

Without

any additional context, the dates on which Plaintiff filed his
EEOC charge (April 10, 2015) and Defendant terminated
Plaintiff’s employment (July 31, 2015) would raise a plausible
inference of a link between the two events.

However,

Plaintiff’s pleadings and the documents attached thereto clearly
show both that Defendant had a legitimate reason to terminate
Plaintiff’s employment, and that Defendant began the process of
terminating Plaintiff well before he filed his first EEOC
18

charge.

Plaintiff has pled himself into a corner, and there is

no longer a plausible basis for believing that his termination
was in retaliation for engaging in protected activities.
Plaintiff was notified in writing on May 19, 2014 that he would
only have 12 months to return to full duty before he would be
terminated.

(Ex. 3.)

In that letter, Plaintiff was warned that

if he did not return to work by August 22, 2014 he could face
termination. (Id.)

Then, on March 27, 2015, Plaintiff was

notified that his injury leave allotment would expire on April
9, 2015, and that after that date he would have to use his
personal leave until that was exhausted, at which point the
County would no longer pay him.

(Ex. 8.)

pursuant to established County policy.

All of this was

Plaintiff received both

of these letters prior to filing his EEOC charge.
The facts alleged in Plaintiff’s complaint and as
appearing in the documents attached thereto show that Defendant
was planning to terminate Plaintiff’s employment well before
Plaintiff filed his first EEOC charge.

Therefore, although

Plaintiff’s ultimate termination took place shortly after he
filed his EEOC charge, Plaintiff cannot plausibly demonstrate
that there was a causal relationship between filing his EEOC
charge and the termination of his employment.
Additionally, Plaintiff’s pleadings show that standing
County policy prescribed termination if he was unable to return
19

to duty.

This policy provides the legitimate, non-retaliatory

reason Defendant would need to refute a prima facie case under
the McDonnell Douglas framework.

Because this defense appears

on the surface of the Plaintiff’s complaint, the Court may reach
it at the Rule 12(b)(6) phase.

See Goodman, 494 F.3d at 464.

Plaintiff’s pleadings and the attached documents fail
to assert facts establishing the plausibility of his allegation
of retaliation.

Accordingly, the Court grants Defendant’s

Motion to Dismiss with respect to Plaintiff’s claim for
retaliatory discharge.
IV. Conclusion
For the foregoing reasons, the Court grants
Defendant’s Motion to Dismiss.

Plaintiff’s complaint is

dismissed without prejudice in its entirety.
An appropriate Order shall issue.

/s/
April 26, 2016
Alexandria, Virginia

James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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