Akbar-Hussain v. ACCA, Inc.

Filing 22

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 01/17/2017. (dvanm, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
SELAI AKBAR-HUSSAIN,

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Plaintiff,
v.

ACCA, INC.,
Defendant.

M E M O R A N D U M

1:16cv1323 (JCC/IDD)

O P I N I O N

This matter is before the Court on the Defendant’s
Partial Motion to Dismiss and Motion to Strike Claim for
Compensatory and Punitive Damages and Jury Demand.

[Dkt. 15.]

For the following reasons, the Court will grant Defendant’s
partial motion to dismiss.

The Court will also grant

Defendant’s motion to strike.
I. Background
This case is brought by pro se Plaintiff Selai AkbarHussain (“Plaintiff”) against ACCA, Inc. (“Defendant” or
“ACCA”).

Plaintiff alleges that she was diagnosed with bipolar

disorder and Attention Deficit Hyperactivity Disorder (“ADHD”)
in 2010.

(Amend. Compl. ¶ 6.)

Due to her mental impairments,

Plaintiff alleges that Defendant engaged in unlawful
discrimination and failed to make appropriate accommodations for
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her at work.

(Id. at 2.)

Moreover, Plaintiff claims that

Defendant wrongfully terminated her.

(Id.)

The following facts

are taken from Plaintiff’s Amended Complaint and, for the
purposes of this motion, are presumed true.
Plaintiff was formerly employed as a Child Development
Aide at ACCA.

On November 18, 2014, Plaintiff took part in a

mediation meeting with Maria-Isabel Balivian, ACCA’s Director,
and Jennifer Shaw, Plaintiff’s supervisor.

(Amend. Compl. ¶ 7.)

Plaintiff alleges that the topic of conversation during this
meeting was her mental health.

(Id.)

She alleges that she was

told that she was “too sensitive,” her “disability [was]
affect[ing] the way [she] see[s] and think[s] about things,” and
that she “needed more help than ACCA could offer.”

(Id.)

Plaintiff also alleges that ACCA staff recommended a mental
health facility to her that could provide medication and
therapy.

(Id.)
The following day, Plaintiff arrived at work and asked

to speak to Ms. Shaw.

(Amend. Compl. ¶ 9.)

Plaintiff alleges

that she expressed concern about the comments made about her
mental health during the prior day’s meeting.

(Id.)

More

specifically, she alleges that she informed Ms. Shaw that she
had ADA rights that protected her from discrimination.

(Id.)

Plaintiff claims that Ms. Shaw told her to go home for the day.
(Id.)

Plaintiff allegedly told Ms. Shaw that she was able to

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work and that sending her home would amount to unlawful
retaliation.
her classroom.

(Id.)

Ms. Shaw then allowed Plaintiff to go to

(Id. ¶¶ 9-10.)

That afternoon, however,

Plaintiff was asked to report to Ms. Balivian’s office, where
she met with Ms. Balivian and Ms. Shaw.
was then terminated.

(Id.)

(Id. ¶ 10.)

Plaintiff

Plaintiff alleges that she asked if

she was being fired because she had voiced concerns over ACCA’s
actions towards her the previous day.

(Id.)

Plaintiff claims

that Ms. Balivian responded to Plaintiff’s question by
clarifying that, in Virginia, employment is at-will, so ACCA did
not need an excuse for firing her.

(Id.)

Plaintiff filed suit in state court on September 28,
2015.

[See Dkt. 1-1 at 2.]

On October 19, 2016, Defendant

filed a notice of removal to federal court.

[Dkt. 1.]

On

December 14, 2016, Defendant filed the instant partial motion to
dismiss and motion to strike.

[Dkt. 15.]

On December 30, 2016,

Plaintiff filed her memorandum in opposition, [Dkt. 19], to
which Defendant replied on January 5, 2017 [Dkt. 20].
argument was held on January 12, 2017.

Oral

Defendant’s motions are

now ripe for disposition.
II.

Standard of Review

“A motion to dismiss under Rule 12(b)(6) tests the
sufficiency of a complaint; importantly, it does not resolve
contests surrounding the facts, the merits of a claim, or the

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applicability of defenses.”

Republican Party of N.C. v. Martin,

980 F.2d 943, 952 (4th Cir. 1992) (citation omitted).

The

Supreme Court has stated that in order “[t]o survive a motion to
dismiss, a [c]omplaint 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, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”

Id.

“Determining whether a complaint states a plausible
claim for relief [is] . . . a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.”

Iqbal, 556 U.S. at 679 (citations omitted).

While legal conclusions can provide the framework for a
complaint, all claims must be supported by factual allegations.
Id.

Based upon these allegations, the court must determine

whether the plaintiff’s pleadings plausibly give rise to an
entitlement for relief.

Id.

Legal conclusions couched as

factual allegations are not sufficient, Twombly, 550 U.S. at
555, nor are “unwarranted inferences, unreasonable conclusions,
or arguments,” E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship,
213 F.3d 175, 180 (4th Cir. 2000).

The plaintiff, however, does

not have to show a likelihood of success; rather, the complaint

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must merely allege-directly or indirectly-each element of a
“viable legal theory.”

Twombly, 550 U.S. at 562-63.

At the motion to dismiss stage, the court must
construe the complaint in the light most favorable to the
plaintiff, read the complaint as a whole, and take the facts
asserted therein as true.

Iqbal, 556 U.S. at 678.

Generally, a

district court does not consider extrinsic materials when
evaluating a complaint under Rule 12(b)(6).

It may, however,

consider “documents incorporated into the complaint by
reference.”

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308, 322 (2007); see also Blankenship v. Manchin, 471 F.3d
523, 526 n.1 (4th Cir. 2006).

In addition, the court may

consider documents attached to the defendant’s motion to dismiss
if those documents are central to the plaintiff’s claim or are
“sufficiently referred to in the complaint,” so long as the
plaintiff does not challenge their authenticity.

Witthohn v.

Fed. Ins. Co., 164 F. App’x 395, 396–97 (4th Cir. 2006).
The Court construes the pro se Complaint in this case
more liberally than those drafted by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520 (1972).

Further, the Court is aware

that “[h]owever inartfully pleaded by a pro se plaintiff,
allegations are sufficient to call for an opportunity to offer
supporting evidence unless it is beyond doubt that the plaintiff
can prove no set of facts entitling him to relief.”

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Thompson v.

Echols, No. 99–6304, 1999 WL 717280, at *1 (4th Cir. 1999)
(citing Cruz v. Beto, 405 U.S. 319 (1972)).

Nevertheless, while

pro se litigants cannot “be expected to frame legal issues with
the clarity and precision ideally evident in the work of those
trained in law, neither can district courts be required to
conjure up and decide issues never fairly presented to them.”
Beaudett v. City of Hampton, 775 F.2d 1274, 1276 (4th Cir.
1985).

Thus, even in cases involving pro se litigants, the

Court “cannot be expected to construct full blown claims from
sentence fragments.”

Id. at 1278.

Further, the Court may not

construct a plaintiff's legal arguments for him or her. See,
e.g., Small v. Endicott, 998 F.2d 411, 417–18 (7th Cir. 1993).
III. Analysis
A.

Partial Motion to Dismiss under Rule 12(b)(6)

Defendant’s motion seeks dismissal of Plaintiff’s
claims for discrimination on the basis of disability, wrongful
termination, and failure to make reasonable accommodations, all
under the ADA.

Defendant argues that Plaintiff has failed to

allege that she is within the protected class of the ADA or that
she has a qualifying disability.

(Def. Mem. in Supp. at 5-9.)

In addition, even assuming that Plaintiff is a member of the
ADA’s protected class, Defendant argues that Plaintiff has
failed to plead satisfactory job performance for her
discriminatory termination claim and failed to exhaust her

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administrative remedies for her failure-to-accommodate claim.
(Id. at 9-12.)

For these reasons, Defendant argues that her

claims should be dismissed for failure to state a claim upon
which relief can be granted.

This Court agrees.

As a preliminary matter, for an ADA claim to survive a
motion to dismiss, a plaintiff must adequately allege that she
is a “qualified individual with a disability.”

Rohan v.

Networks Presentations LLC, 375 F.3d 266, 272 (4th Cir. 2004).
First, the ADA defines a qualified individual as someone “who,
with or without reasonable accommodation, can perform
the essential functions of the employment position that such
individual holds or desires.”

42 U.S.C. § 12111(8).

Second,

the ADA defines a “disability” as including: “(A) a physical or
mental impairment that substantially limits one or more major
life activities, (B) a record of such an impairment, or (C)
being regarded as having such an impairment.”

42 U.S.C.

§ 12102(1); see also 29 C.F.R. § 1630.2(g)(1)(i)-(iii).
Plaintiff’s Amended Complaint fails to adequately allege that
she meets either statutory definition.
With regards to being a “qualified individual,” the
Amended Complaint does not contain sufficient facts to establish
Plaintiff’s ability to perform the essential functions of her
job as a Child Development Aide.

Although she states that she

“could work,” (Amend. Compl. ¶ 9), she does not discuss what

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tasks her job entails or explain how she could accomplish those
tasks with or without a reasonable accommodation, given her
mental impairments.

Moreover, Plaintiff did not include any

factual allegations about her qualifications.

As a result, this

Court finds that Plaintiff has not satisfied her pleading
obligations under Rule 12(b)(6) to establish that she is a
“qualified individual” pursuant to the ADA.
Even if the Court were to assume that Plaintiff is a
qualified individual under the statute, she still fails to
allege that she has a “disability.”

See 42 U.S.C. § 12102(1).

Subsection A provides the first possible definition of this
term.

Id. § 12102(1)(A).

Under subsection A, a plaintiff must

allege that she is unable to perform, due to her disability, at
least one of a variety of tasks central to most people’s daily
lives.

See Toyota Mfg., Ky., Inc. v. Williams, 534 U.S. 185,

200-01 (2002); see also 29 C.F.R. § 1630.2(h)(1)(i) (listing
major life activities).

While Plaintiff has alleged that she

was diagnosed with bipolar disorder and ADHD in 2010, she has
failed to allege that these mental impairments substantially
limited her in any major life activity.

In fact, her Amended

Complaint is devoid of any allegations that either bipolar
disorder or ADHD have impacted tasks central to her daily life.
Instead, Plaintiff merely alleges that she was experiencing
difficulty at work.

(See Amend. Compl. ¶¶ 6-8.)

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She does not

describe how those difficulties were or could have been tied to
her mental health.

Thus, Plaintiff has failed to allege

sufficient facts to establish that her bipolar disorder and ADHD
qualify as a “disability” under subsection A of the statute.
Under subsection C, a plaintiff can still establish a
viable claim if she sufficiently alleges that either “(1) the
covered entity mistakenly believes that [she] has a physical [or
mental] impairment that substantially limits one or more of the
major life activities of such individual, or (2) a covered
entity mistakenly believes that an actual, non-limiting
impairment substantially limits one or more major life
activities.”

Haulbrook v. Michelin N. Am., 252 F.3d 696, 703

(4th Cir. 2001) (citing Sutton v. United Air Lines, 527 U.S.
471, 489 (1999)).

In both instances, the employer must have

perceived Plaintiff as “significantly restricted in [her]
ability to perform either a class of jobs or a broad range of
jobs in various classes.”

Cline v. Wal-Mart Stores, Inc., 144

F.3d 294, 303 (4th Cir. 1998).
In the instant case, the Amended Complaint does not
contain sufficient factual allegations to support the claim that
ACCA regarded Plaintiff as substantially limited in her ability
to work for two reasons.

First, the Amended Complaint does not

allege that ACCA viewed Plaintiff as unable to work in the child
care industry generally or in any other class of job.

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In

addition, it fails to include any allegations that ACCA regarded
Plaintiff as substantially limited in her ability to perform her
specific job at ACCA, whether due to her bipolar disorder, ADHD,
or both.

The Amended Complaint does allege that ACCA was aware

of Plaintiff’s mental health issues, which Defendant disputes,
as well as that she had been told that her thinking was
affecting her work performance.

(See Amend. Compl. ¶ 6.)

However, Plaintiff does not allege any facts to help establish
that ACCA believed her bipolar disorder and ADHD prevented her
from working.

Accordingly, Plaintiff has failed to allege

sufficient facts to plead that she has a disability under the
ADA. 1
Given Plaintiff’s failure to allege sufficient facts
to establish that she is a qualified individual with a
disability under the ADA, the Court will grant Defendant’s
motion to dismiss Plaintiff’s ADA discrimination claim.

The

Court will also dismiss Plaintiff’s discriminatory termination
and failure-to-accommodate claims, as the former requires the
Plaintiff to establish that she is within the ADA’s protected

1

The Court declines to address subsection B of 42 U.S.C. § 12102(1)
(involving a record of impairment) because the parties have not addressed it
in their briefs. The Court notes, however, that Plaintiff has not included
sufficient factual allegations regarding a record of impairment, beyond
stating that she was diagnosed with bipolar disorder and ADHD in 2010.
(Amend. Compl. ¶ 6.)

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class and the latter requires her to show that she had a
disability, both of which she has failed to do. 2
B.

Motion to Strike Claim for Compensatory and
Punitive Damages and Jury Demand

Plaintiff’s sole remaining claim is for retaliation
under the ADA.

Defendant ACCA argues that compensatory and

punitive damages are generally unavailable as a remedy for such
claims; it asks the Court to strike such damages pursuant to
Federal Rule of Civil Procedure 12(f).
12.)

(Def. Mem. in Supp. at

Due to Plaintiff’s inability to seek compensatory and

punitive damages, Defendant also asserts that Plaintiff is
strictly limited to equitable relief and, therefore, is not
entitled to a jury trial.

(Id. at 13.)

Consequently, Defendant

asks the Court to strike Plaintiff’s request for a jury as well.
(Id.)
The question of whether the ADA permits compensatory
or punitive damages to be awarded for retaliation-based claims
2

To properly assert wrongful discharge claim under the ADA, for example, a
plaintiff must sufficiently allege “that (1) [s]he is within the ADA’s
protected class; (2) [s]he was discharged; (3) at the time of [her]
discharge, [s]he 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,
252 F.3d at 702. Here, Plaintiff’s Amended Complaint fails because, among
other reasons, she has not established that she is a member of the ADA’s
protected class. In addition, to survive a motion to dismiss for a failure
to accommodate claim under the ADA, a plaintiff must sufficiently allege “(1)
that [s]he was an individual who had a disability within the meaning of the
statute; (2) that the [employer] had notice of [her] disability; (3) that
with reasonable accommodation [s]he could perform the essential functions of
the position; and (4) that the [employer] refused to make such
accommodations.” Rhoads v. F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001).
Here, Plaintiff failed to establish that she has a disability within the
meaning of the ADA. Moreover, Plaintiff conceded at oral argument that she
did not need or request any special accommodations.

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is a difficult one.

While Defendant is correct that the Fourth

Circuit has held in two separate cases that compensatory and
punitive damages are not available, neither decision qualifies
as binding precedent.

See Rhoads v. F.D.I.C., Fed. App’x 187,

188 (4th Cir. 2004) (unpublished per curiam opinion); Bowles v.
Carolina Cargo, Inc., 100 F. App’x 889, 890 (4th Cir. 2004)
(same).

Thus, the question remains one of first impression.
To date, two other Circuit Courts of Appeal have

squarely addressed this issue.

Both have held that compensatory

and punitive damages are not available for retaliation-based
claims under the ADA.

See Alvarado v. Cajun Operating Co., 588

F.3d 1261, 1268–70 (9th Cir. 2009); Kramer v. Banc of America
Securities, LLC, 355 F.3d 961, 965 (7th Cir. 2004).

Though

these cases are also not binding precedent on this Court, the
Court nevertheless finds their statutory interpretation
persuasive.
In Kramer, for example, the Seventh Circuit thoroughly
examines possible remedies for plaintiffs alleging retaliation
under the ADA.

First, the Court notes that the “remedies

available to a party making a retaliation claim . . . are . . .
determined by reference to 42 U.S.C. § 12117.”

355 F.3d at 964.

Section 12117, in turn, provides that the available remedies are
those listed in the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e-4
through e-9.

See 42 U.S.C. § 12117(a).

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The Court reviews these

sections, pointing out that § 2000e-5(g)(1) of the 1964 Act
allows courts to order equitable relief.
964 (citing 42 U.S.C. § 2000e-5(g)(1)).

Kramer, 355 F.3d at
At the same time,

however, § 2000e-5(g)(1) does not mention compensatory or
punitive damages.

Id.

As a result, the Court reasons that such

damages are not available, unless the 1991 Civil Rights Act, 42
U.S.C. § 1981a(a)(2), which Congress passed in order to expand
the remedies available under § 2000e-5(g)(1) in certain
circumstances, makes them available.
reviews the language of the 1991 Act.

Id.

The Court then

It concludes that the

statute only provides compensatory and punitive damages for
those claims specifically “listed therein.”
42 U.S.C. § 1981a(a)(2)).

Id. at 965 (citing

A retaliation claim under the ADA

(§ 12203) is not among those listed.

Id.

Thus, the Court holds

that the plain language of § 1981a(a)(2) “does not contemplate
compensatory and punitive damages for a retaliation claim under
the ADA.”

Id.

Or, to put it more simply, such claims are not

allowed.
Having adopted the reasoning in Kramer, this Court now
finds that compensatory and punitive damages are not available
for retaliation-based claims under the ADA.

Accordingly, the

Court will grant Defendant’s motion to strike compensatory and
punitive damages from Plaintiff’s prayer for relief.

Without

such damages, Plaintiff may seek only equitable relief.

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Consequently, she “has no statutory or constitutional right to a
jury trial.” 3

Kramer, 355 F.3d at 966.

The Court will therefore

grant Defendant’s motion to strike the demand for a jury from
Plaintiff’s Amended Complaint.
IV.

Conclusion

For the foregoing reasons, the Court will grant
Defendant’s partial motion to dismiss Plaintiff’s ADA claims
based on discrimination, discriminatory termination, and failure
to make a reasonable accommodation.

The Court will also grant

Defendant’s motion to strike the request for compensatory and
punitive damages as well as the demand for a jury trial.
An appropriate Order will issue.

January 17, 2017
Alexandria, Virginia

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

3

Plaintiff also conceded at oral argument that she was not requesting a jury
trial.

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