Craft v. Fairfax County Government
Filing
27
MEMORANDUM OPINION re Second Motion to Dismiss. Signed by District Judge James C. Cacheris on 8/4/16. (klau, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ANTHONY D. CRAFT,
)
)
)
)
)
)
)
)
)
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 again before the Court on Defendant
Fairfax County Government’s (“Defendant” or “Fairfax”) Second
Motion to Dismiss.
[Dkt. 23]
For the following reasons, the
Court grants Defendant’s Second Motion to Dismiss and dismisses
Plaintiff’s Amended Complaint [Dkt. 22] with 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 Amended
Complaint and the attached documents.1
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
Plaintiff Anthony Craft (“Craft” or “Plaintiff”) was
employed by the Fairfax County Fire and Rescue Department
(“FRD”) as a firefighter until July 31, 2015.
7, 21.)
(Am. Compl., ¶¶
On August 22, 2013, Plaintiff suffered a work related
back injury from slipping and falling on a wet boat dock while
performing his duties as a firefighter.
(Id. at ¶ 8.)
On
August 30, 2013, Plaintiff visited My Urgent Care, a physician
approved by Fairfax County to handle Worker’s Compensation
eligible claims.
(Id. at ¶ 9.)
Plaintiff saw My Urgent Care
again on September 6, 2013 for a follow up appointment and to
start physical therapy.
(Id.)
On September 13, 2013, Plaintiff
visited Primary Care Physician, “due to persistent back pain and
worker’s comp physician recommending Craft back to work ‘light
duty no restrictions.’”
(Id. at ¶ 10.)
Plaintiff alleges that
Defendant offers no such light duty for firefighters in his
situation.
(Id.)
Yet Plaintiff also alleges that on October 7,
2013, he “returned to work light duty” in an unspecified role.
(Id. at ¶ 11.)
Around this same time, Plaintiff began a second
physical therapy program with Kaiser Permanente that lasted
approximately 4-6 weeks.
(Id.)
On November 5, 2013, Dr. Ian
Gordon of Kaiser Permanente recommended that Plaintiff be taken
out of work completely due to continued back pain, and scheduled
Plaintiff for his first MRI.
(Id.)
2
On November 13, 2013,
Plaintiff saw Dr. Alan Schreiber, a worker’s compensation
physician, and received documents recommending he not work until
after the MRI results.
(Id. at ¶ 12.)
On December 23, 2013,
Jaunuary 13, 2014, and February 14, 2014, Plaintiff received
epidural injections in his lower back due to a herniated disc
between his L4 and L5 vertebrae.
(Id.)
On April 4, 2014,
Plaintiff underwent surgery at Med Star Southern Maryland
Hospital to remove the herniated disc.
(Id. at ¶ 13.)
In May
of 2014 Plaintiff began post-operative physical therapy.
(Id.)
On May 19, 2014, Deputy Fire Chief Daniel V. Gray’s
office called Plaintiff to Fire Headquarters to discuss his work
status.
(Id.)
At the time of this meeting, Dr. Schrieber had
“ordered Plaintiff off work completely.”
(Id.)
When Plaintiff
arrived at FRD Headquarters, he was given a memo with six
options to choose from regarding his future employment with
Defendant.
(Id.)
Plaintiff argues that he could have been
mailed this memo, and requiring him to come to Fire Headquarters
while he was still “ordered off” of work by his physician was
“harassment” and “total disregard for the physician’s orders.”
(Id.)
At some point thereafter, Plaintiff was awarded
workers’ compensation by the Virginia Workers’ Compensation
Commission.
(Id. at ¶ 14.)
On July 30, 2014, Plaintiff
informed Deputy Chief Gray that he would be pursuing referral to
3
the Uniformed Retirement Board (“the Retirement Board”) for
service-connected disability retirement.
(Id. at ¶ 15.)
On
August 6, 2014, Plaintiff submitted his formal application for
disability retirement with the Fairfax County Retirement Agency
(the “Agency”) after Dr. Schreiber stated he could no longer
perform the duties of a firefighter.
(Id. at ¶ 16.)
On August
7, 2014, The Agency sent a memorandum to the Office of Risk
Management requesting medical documents relating to Plaintiff’s
claim of disability.
(Id. at ¶ 17.)
On April 10, 2015, Plaintiff filed his first charge
with the Equal Employment Opportunity Commission (“EEOC”)
alleging that delays in processing his retirement application
constituted a violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) and the Americans
with Disability Act, 29 U.S.C. § 623(a)(1) (“ADA”).
18.)
(Id. at ¶
Plaintiff now alleges that at the time he submitted this
claim he was being subjected to “discrimination, bullying, and
harassment” by Defendant’s employees “stalking the plaintiff in
front of his home, harassing phone telephone calls by Captain
Pete Pullen and others, and humiliation.”
(Id.)
On May 28, 2015, Plaintiff participated in a
Functional Capacity Evaluation, the results of which allegedly
confirmed Dr. Schreiber’s opinion that Plaintiff could no longer
perform the duties of a firefighter.
4
(Id. at ¶ 19.)
Plaintiff
also requested advance sick leave on May 28, 2015, but his
request was denied due to his continuing ability to “perform
light level work.”
(Id.)
On June 26, 2015, Plaintiff received
a memorandum via certified letter from Deputy Chief Andrew L.
Duke “proposing separation of employment.”
(Id. at ¶ 19.)
Plaintiff alleges that “despite [Plaintiff] being able to
perform light level work, separation of employment was
recommended.”
(Id.)
On July 31, 2015, Plaintiff received a
letter from Fire Chief Richard Bowers written on July 23, 2015
that informed him the Chief had “decided to approve your
separation as proposed effective at the close of business on
Friday, July 31, 2015.”
(Id. at ¶ 21.)
On September 11, 2015,
Plaintiff filed a second EEOC charge alleging retaliatory
termination by Defendant.
In October of 2015 Plaintiff received a letter from
the Agency informing him that his case was going before the
Retirement Board on October 21, 2015.
(Id. at 23.)
On October
21, 2015, Plaintiff and his wife arrived at the location for his
meeting with the Retirement Board at 10:00 a.m., but his
application was not heard for approximately 2 hours.
(Id.)
Plaintiff now alleges that this was another example of
harassment and retaliation.
(Id.)
On December 9, 2015, Plaintiff received a letter from
the Agency informing him that the Retirement Board would render
5
a decision on his disability retirement application on December
16, 2015.
(Id. at ¶ 24.)
On December 17, 2015, Plaintiff was
contacted via email by Chris D. Colandene, Deputy Director,
Fairfax County Retirement Systems, that the Retirement Board had
denied his application for disability retirement.
(Id.)
Plaintiff contends that being forced to wait until December for
the Retirement Board’s decision after his hearing in November is
a further example of harassment, bullying, and retaliation for
filing his initial EEOC charge.
(Id.)
On December 28, 2015,
Plaintiff sent an email to Chris Colandene informing him of his
decision to appeal the Retirement Board’s decision.
25.)
(Id. at ¶
There is no indication regarding the status or disposition
of that appeal.
Plaintiff filed this lawsuit on January 27, 2016,
after receiving a dismissal and right to sue letter from the
EEOC.
(Compl., [Dkt. 1].)
Plaintiff’s original complaint
alleged discrimination in violation of Title VII and wrongful
termination and failure to accommodate in violation of the ADA.
(Id.)
Defendant filed its First Motion to Dismiss on February
26, 2016, and that motion was granted by this Court on April 26,
2016.
(See First. Mot. to Dismiss [Dkt. 8]; Mem. Op. of Apr.
26, 2016 [Dkt. 16]; Order of Apr. 26, 2016 [Dkt. 17].)
This
Court’s Order granting Defendant’s First Motion to Dismiss
provided that “Plaintiff shall file an Amended Complaint, if
6
any, no later than May 5, 2016.”
(Order of Apr. 26, 2016 at 3.)
Plaintiff filed a Motion for Extension of Time on May
5, 2016.
(Pl.’s Mot. for Ext. of Time [Dkt. 18].)
The Court
granted Plaintiff’s Motion for Extension of Time in part,
ordering that “Plaintiff is granted an additional 20 days from
the date of this order to file an Amended Complaint, if any;
Plaintiff shall file an Amended Complaint, if any, no later than
May 30, 2016; If Plaintiff fails to file an Amended Complaint by
May 30, 2016, his Complaint will be dismissed with prejudice.”
(Order of May 10, 2016 [Dkt. 19] at 2-4.)
Plaintiff failed to
comply with this Order, first filing a Second Motion for
Extension of Time on May 27, 2016, and then filing his Amended
Complaint on June 2, 2016.
[Dkt. 21]; Am. Compl.)
(Pl.’s Sec. Mot. for Ext. of Time
Plaintiff’s Amended Complaint repeats
his claims for failure to accommodate in violation of the ADA,
and further alleges retaliation and creation of a hostile work
environment in violation of Title VII.
(Pl.’s Am. Compl., ¶¶
27-32.)
On June 13, 2016, Defendant filed the instant motion,
its Second Motion to Dismiss with an attached Roseboro notice to
Plaintiff.
(Def.’s Sec. Mot. to Dismiss [Dkt. 23].)
Plaintiff
has failed to file any opposition to Defendant’s Second Motion
to Dismiss.
Oral argument was heard on July 14, 2016, at which
point Plaintiff appeared and contested Defendant’s Second Motion
7
to Dismiss.
The motion is now ripe for decision.
II. Legal Standard
Defendant moves to dismiss under Federal Rules of
Civil Procedure 41(b), 12(b)(1), and 12(b)(6).
Federal Rule of Civil Procedure 41(b) provides that
“[i]f the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the
action or any claim against it.”
Failure to comply with a Court
ordered filing deadline is a valid basis for dismissal with
prejudice pursuant to Federal Rule of Civil Procedure 41(b).
See Bryan v. Bristol-Myers Squibb Co., 588 F. App’x 273 (4th
Cir. 2014)(per curiam opinion upholding dismissal for failure to
comply with court order and timely file objections to Magistrate
Judge’s report and recommendation).
Defendant alternatively moves to dismiss for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1).
“[I]n passing on a motion to dismiss,
whether on the ground of lack of jurisdiction over the subject
matter or for failure to state a cause of action, the
allegations of the complaint should be construed favorably to
the pleader.”
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),
abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800
(1982).
A motion pursuant to Rule 12(b)(1) of the Federal Rules
of Civil Procedure challenges the Court’s subject matter
8
jurisdiction over the pending action.
“Federal courts are
courts of limited jurisdiction, and we presume that a cause lies
outside this limited jurisdiction.
The burden of establishing
the contrary rests upon the party asserting jurisdiction.”
Wheeling Hosp., Inc. v. Health Plan of the Upper Ohio Valley,
Inc., 683 F.3d 577, 583-84 (4th Cir. 2012) (citation omitted).
If “claims raised under Title VII exceed the scope of the EEOC
charge and any charges that would naturally have arisen from an
investigation thereof, they are procedurally barred.”
County Of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995).
Dennis v.
In order
for a plaintiff to have exhausted his administrative remedies,
“the factual allegations made in formal litigation must
correspond to those set forth in the administrative charge.”
Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005).
Finally, Defendant moves to dismiss for failure to
state a claim pursuant to Rule 12(b)(6).
“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
9
disguised as factual allegations.
662, 679-81 (2009).
Ashcroft v. Iqbal, 556 U.S.
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.”
Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557.
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).
Where
sufficient facts are alleged in the complaint to rule on an
affirmative defense, 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.
10
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 County 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. County of
Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va. 1995).
III. Analysis
A.
Defendant’s Rule 41(b) Motion
Plaintiff has failed to comply with this Court’s Order
of May 10, 2016 by failing to file his Amended Complaint by May
30, 2016.
The Order of May 10, 2016 provided Plaintiff with 20
additional days to file his Amended Complaint, and clearly
informed Plaintiff that “[i]f Plaintiff fails to file an Amended
Complaint by May 30, 2016, his Complaint will be dismissed with
prejudice.”
(Order of May 10, 2016 at 4.)(emphasis added)
While Plaintiff is proceeding pro se and is therefore entitled
to more liberal pleading and procedural standards, this order
complied with the notice requirements of Roseboro v. Garrison,
528 F.2d 309, 310 (4th Cir. 1975) by informing Plaintiff in
plain, clear language that failure to comply with that deadline
would result in the dismissal of his claims with prejudice.
The
Plaintiff filed a Second Motion for Extension of time on May 27,
11
2016, but this Motion was not granted, and the mere filing of
the Second Motion for Extension of Time did not entitle
Plaintiff to disregard the deadline established in the May 10,
2016 Order.2
Because Plaintiff has failed “to comply with a
court order” establishing a deadline by which he must have filed
his Amended Complaint, the Court grants Defendant’s Second
Motion to Dismiss pursuant to Federal Rule of Civil Procedure
41(b) and dismisses Plaintiff’s Amended Complaint with
prejudice.
Fed. R. Civ. P. 41(b).
B.
Defendant’s Rule 12(b)(1) and Rule 12(b)(6)
Motions
As an alternative grounds for dismissal, and because
pro se complaints are “to be liberally construed”, the Court
will now proceed to evaluate the merits of Plaintiff’s Amended
Complaint in light of Defendant’s Rule 12(b)(1) and Rule
12(b)(6) motions as though it had been timely filed.
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
2
The May 10, 2016 Order had already explicitly refused a
requested extension of time past May 30, 2016. The clear
implication therein was that no further extensions past May 30,
2016 would be granted. Any reliance by Plaintiff on his May 27,
2016 Second Motion for Extension of Time was therefore
particularly misplaced.
12
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.”).
Had Plaintiff timely filed his Amended Complaint, the
Court would still grant Defendant’s Second Motion to Dismiss
pursuant to Rules 12(b)(1) and 12(b)(6).
The Amended Complaint
contains many of the same defects which led the Court to dismiss
Plaintiff’s original Complaint.
The Court addresses each of the
three counts in Plaintiff’s Amended Complaint in turn.
1.
Failure to Accommodate
Plaintiff has alleged one new fact which could
potentially bear on his failure to accommodate claim.
Plaintiff
still explicitly alleges in his Amended Complaint that he sought
retirement on the basis that “he could no longer perform the
duties as a firefighter,” but he now also alleges that he could
have performed “light level work.”
(Am. Compl., ¶¶ 16, 19.)
Notwithstanding the new allegation that he could perform light
level work, the fact that Plaintiff still alleges he was
physically incapable of performing the job “as a firefighter”
remains fatal to Plaintiff’s failure to accommodate claim.
still has not alleged that he would have been capable of
performing the duties of a firefighter with any reasonable
13
He
accommodations.
Plaintiff’s allegation that he could perform
“light level work” is insufficient to save his ADA claim as the
“ADA does not require an employer to assign an employee to
‘permanent light duty . . ..’”
Shin v. Univ. of Md. Med. Sys.
Corp., 369 F. App’x 472, 479 (4th Cir. 2010).
Plaintiff alleges no other new facts that would
significantly alter this Court’s analysis of Plaintiff’s ADA
claims in its prior Memorandum Opinion granting Defendant’s
First Motion to Dismiss.
The Court therefore relies upon the
above analysis and the previous analysis found in its Memorandum
Opinion of April 26, 2016 and would grant Defendant’s Second
Motion to Dismiss with respect to Plaintiff’s ADA failure to
accommodate claim pursuant to Federal Rule of Civil Procedure
12(b)(6).
2.
Title VII: Hostile Work Environment
Before bringing a federal claim under Title VII, a
plaintiff must exhaust his administrative remedies with the
EEOC.
See Chacko, 429 F.3d at 508.
In the context of Title VII
claims, exhaustion requires a plaintiff to file a charge with
the EEOC within the timeframe specified by 42 U.S.C. § 2000e5(e)(1).
“Even after a plaintiff has exhausted his
administrative remedies, the administrative framework plays a
substantial role in focusing the formal litigation it precedes.”
Id., at 509.
Any subsequent federal lawsuit can advance only
14
those claims stated in the EEOC charge, claims reasonably
related to the charge, and claims developed by a reasonable
investigation of the charge.
Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996); see also Balas v.
Huntington Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir.
2013).
If “the claims raised under Title VII exceed the scope
of the EEOC charge and any charges that would naturally have
arisen from an investigation thereof, they are procedurally
barred.”
Dennis, 55 F.3d at 156.
The “touchstone” of this
analysis “is whether plaintiff’s administrative and judicial
claims are reasonably related.”
Syndor v. Fairfax County, Va.,
681 F.3d 591, 595 (4th Cir. 2012).
These requirements advance
important policy objectives of notifying the employer and
facilitating efficient claim resolution by the EEOC.
See Miles
v. Dell, Inc., 429 F.3d 480, 491 (4th Cir. 2005); Chris v.
Tenet, 221 F.3d 648, 653 (4th Cir. 2000).
While exhaustion is
important, it “should not become a tripwire for hapless
plaintiffs.”
Syndor, 681 F.3d at 594; Fed. Express Corp. v.
Holowecki, 552 U.S. 389, 406 (2008).
Plaintiff’s Amended Complaint alleges for the first
time that he was subject to discrimination through creation of a
hostile work environment because the County’s employees “stalked
[him] in front of [his] house,” and he received “harassing phone
telephone calls by Captain Pete Pullen and others, and
15
humiliation.”
(Am. Compl., ¶ 18.)
Neither of Plaintiff’s EEOC
charges made any allegations of stalking, harassing telephone
calls, or “humiliaition.”
Plaintiff’s April 10 EEOC charge
alleges that Defendant was engaged in discrimination against
Plaintiff by failing to “send [his] application to the Medical
Examining Board” for a period of eight months, thus
“intentionally delaying [his] application for retirement and
medical coverage due to [his] race, sex, and disability status.”
(Pl.’s Ex. 5 [Dkt. 1-12], at 15-16; Def.’s Ex. 17 [Dkt. 9-17] at
1-2.)
The April 10 EEOC charge also contains allegations of
disparate treatment by the retirement board as compared to its
handling of the retirement applications of two white
firefighters, Mark Johnson and Colleen Wheeler.
at 12, 14.)
(Pl.’s Ex. 5,
Plaintiff’s new allegations of stalking and
harassment are in no way related to the allegedly disparate,
discriminatory, and deficient processing of Plaintiff’s
application for disability retirement, nor would an
investigation into the delayed processing of Plaintiff’s
retirement application be expected to uncover evidence of
stalking, harassment, or systematic humiliation.
Plaintiff’s September 11, 2015 EEOC charge
predominantly deals with Defendant’s allegedly retaliatory
termination of Plaintiff.
(Id., at 3.)
The September 11, 2015
EEOC Charge makes an oblique reference to a “Justin Cuffee” and
16
a “Dawn Kearns” who plaintiff believes received the same
treatment of unspecified “Harassment.”
(Id., at 4.)
Plaintiff’s September 11, 2015 charge makes no other mention of
harassment, humiliation, or stalking, and it makes no reference
to Captain Pete Pullen.
It clearly states that Plaintiff’s
claim was for retaliation based on the fact that he was “fired
while tolling [sic] due to work related injury.”
(Id., at 3.)
No reasonable investigation into Plaintiff’s claim that he was
fired in retaliation for filing his April 10, 2015 EEOC Charge
would include an investigation into as yet unalleged claims of
stalking and harassment by an individual who had not been named
in any filings at the time.
Accordingly, the Court finds that
Plaintiff has failed to exhaust his administrative remedies in
connection with his newly alleged claims of stalking,
harassment, and humiliation, and the Court would therefore
dismiss Plaintiff’s claims dependent on these allegations for
lack of subject matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(b)(1).
3.
Title VII: Retaliation
Plaintiff’s Amended Complaint contains no new facts
which materially alter this Court’s prior analysis of his Title
VII retaliation claim.
As the Court held in its Memorandum
Opinion of April 26, 2016, “[t]he facts alleged in Plaintiff’s
complaint and as appearing in the documents attached thereto
17
show that Defendant was planning to terminate Plaintiff’s
employment” and “began the process of terminating Plaintiff well
before he filed his first EEOC charge.”
2016, at 18-19.)
(Mem. Op. of April 26,
Likewise, Plaintiff’s admission that “he could
no longer perform the duties as a firefighter” makes it clear on
the face of his complaint that Defendant had a legitimate reason
to terminate Plaintiff’s employment, one which pre-dated
Plaintiff’s EEOC claims and coincided with the beginning of the
process of terminating Plaintiff.
(Am. Compl., ¶ 16.)
To the extent that Plaintiff alleges retaliation by
“creating a hostile work environment,” this claim, like
Defendant’s stand-alone claim for creation of a hostile work
environment discussed above must be dismissed as it neither
appeared in Plaintiff’s EEOC charges, nor is it reasonably
related to the claims actually raised in Plaintiff’s EEOC
charges.
It is therefore also procedurally barred.
Accordingly, for the reasons described above and those
described in the Court’s Memorandum Opinion of April 26, 2106,
the Court would grant Defendant’s Second Motion to Dismiss with
respect to Plaintiff’s Title VII retaliation claim pursuant to
Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1).
IV. Conclusion
18
For the foregoing reasons, the Court grants
Defendant’s Second Motion to Dismiss.
Plaintiff’s Amended
Complaint is dismissed with prejudice in its entirety.
An appropriate Order shall issue.
/s/
August 4, 2016
Alexandria, Virginia
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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