Crump v. Tcoombs & Associates, LLC, trading as TCAssociates et al
Filing
23
OPINION AND ORDER: denying 9 Motion to Dismiss for Failure to State a Claim; dismissing as moot as to the Navy and granting as to TCA and TCMP 11 Motion to Amend/Correct. Plaintiff's Motion to Amend her Complaint, ECF No. 11, is DISMISSE D AS MOOT as to the Navy, as Plaintiff is entitled to amend her Complaint "once as a matter of course" as to the Navy. Fed. R. Civ. P. 15(a). Plaintiff's Motion to Amend her Complaint, ECF No. 11, is GRANTED as to TCA and TCMP, as TCA and TCMP do not oppose Plaintiff's motion and the Court finds no evidence of prejudice, bad faith, or futility resulting to TCA or TCMP from Plaintiff's amendments. Laber, 438 F.3d at 426. The Clerk's Office is ORDERED to file Plaintiff's proposed Amended Complaint, ECF No. 11-1, as of the date of this Opinion and Order. The Navy's Motion to Dismiss is DENIED. ECF No. 9. (See footnote and supra notes for specifics). Copies distributed to counsel of record as directed. Signed by District Judge Mark S. Davis and filed on 9/23/2014. (bgra)
FILED
UNITED
STATES
DISTRICT
EASTERN DISTRICT
COURT
SEP 2 3 2014
OF VIRGINIA
Norfolk Division
CLERK, US DISTRICT COURT
NORFOLK, VA
SUMMER CRUMP,
Plaintiff,
v.
Civil No.:
TCOOMBS
&
ASSOCIATES,
2:13cv707
LLC,
TRADING AS TCASSOCIATES,
TCMP
HEALTH
SERVICES,
LLC,
and
UNITED
STATES DEPT
BY AND THROUGH
OF NAVY,
RAY MABUS,
SECRETARY OF DEPT OF NAVY,
Defendants.
OPINION
This
matter
is
before
AND
the
ORDER
Court
on
filed by the United States Department of
ECF No.
9,
as
("Plaintiff"),
record,
well
as
ECF No.
the Court
a motion to
11.
a
the Navy
that
to
dismiss
("the Navy"),
amend filed by Summer Crump
After examining
determines
motion
oral
the briefs
argument
and
the
is unnecessary
because the facts and legal contentions are adequately presented
and oral argument would not aid in the decisional process.
R.
Civ.
P.
78(b);
forth below,
to
the
motion
Navy
E.D.
Va.
Plaintiff's
and
to dismiss
GRANTED
Loc.
motion
as
is DENIED.
to
R.
7 (J) .
to amend
TCA
and
For
the
Fed.
reasons
set
is DISMISSED AS MOOT as
TCMP,
and
the
Navy's
I.
FACTUAL AND PROCEDURAL HISTORY1
Plaintiff alleges
TCAssociates
("TCA),
(collectively,
Assistant
VA,
at
that she
Sewell's
Point
a Navy facility."
deafness,"
received
Plaintiff,
cochlear
a
days
before
"a
("TCMP"),
2010
Medical
HH 5,
surgical
"as
Clinic
11,
and the Navy
a
Physician
in
ECF No.
procedure
revision"
failed.
Plaintiff
reasonable
of
"joint employers"
Norfolk,
11-1.
On
who "suffers from bilateral profound
Plaintiff asserts that she
for
May
Branch
implant
cochlear implants" had
three
in
Am. Compl.
"underwent
a
hired by
TCMP Health Services
"Defendants")
April 26, 2011,
was
Id.
was
. . .
because
f 12.
whereby
her
On June
scheduled
to
she
"existing
17,
return
2011,
to
work,
submitted a request to TCA and TCMP
accommodation
to
eliminate
unnecessary
excessive noise in the clinical environment and an effective and
accurate alternative form of telecommunication
...
so that she
could perform the essential requirements of her position."
Id.
1 14.
1 The facts of this case, drawn from Plaintiff's proposed Amended
Complaint, are assumed
true
currently before the Court.
Elkins Radio Corp., 278 F.
for the purpose
of deciding
the motion
See Burbach Broadcasting Co.
3d 401, 406 (4th Cir. 2002) .
of Del, v.
The facts
recited here are not to be considered factual findings for any purpose
other than consideration of the pending motion.
See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (observing that, "when ruling on a
defendant's motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint"); Nemet Chevrolet,
Ltd.
v.
Consumeraffairs.com,
Inc.,
591
F.3d
250,
255
(4th Cir.
2009)
("[I]n evaluating a Rule 12(b)(6) motion to dismiss, a court accepts
all well-pled facts as true and construes these facts in the light
most favorable to the plaintiff in weighing the legal sufficiency of
the complaint.").
2
"In
her
late
request
noise,
for
as
on
According
a
to
approximately
were
particular
headset,"
asserts
of
become
"more
However,
Sign
video
phone
Plaintiff,
one
neither
and
TCA
reasonable
only
and
such
her
with
as
or
or
similar
TCA and
offered
relay
device."
Id.
sound"
and
a
delay
of
accommodations
for
telephone
which
video
"following
effective
"a
telephone
accommodations,
months,
"amplified
"maintained
information to
TCMP,
nor
excessive
her
Interpreters
IPAD2
one-half
disability,"
which
or
and
withdrew
to
associated
reasonable
Language
she
acclimated
Plaintiff
. . .
numerous
that
unnecessary
and provided additional
American
service
that
t 17.
"regarding
included
since
accommodation
communications"
TCMP
Plaintiff
elimination
had
Id.
for
2011,"
the
she
implants."
request
July
(Plaintiff's]
attachment
"would
have
or
done
nothing to accommodate her disability," and "a non-signing staff
person
to
Plaintiff
paraphrase
alleges
the
would
communications
which
likelihood of
patient communications being improperly relayed,
especially in
In August of 2011,
that her
carried a
telephone,"
"risk of
emergency situations."
have
by
Id. KU 18-19.
Plaintiff alleges that she
'request for accommodations'
had been agreed
that she would be allowed to return to work,"
regarding
asserts
the
that
set
up"
were
"the parties
resolved.
participated
"was advised
Id.
to and
after the "details
H 20.
Plaintiff
in a dialogue by
email
and
other
communications
accommodation,
. . .
getting
with
regard
responsibility
for
with
the
to
regard
requisite
logistics
the
cost
setting
approvals,
set
for
among other things."
accommodation,
to
up,
and
Id.
up
coordinating
approvals,
provision
However,
"forwarded
a
for
Request
for
the
"[o]n October
according to Plaintiff's Amended Complaint,
form
and
of
12, 2011,"
written
the
the Navy
Accommodation
to
[Plaintiff], through [TCA] and/or TCMP," which Plaintiff alleges
she
submitted
"as
instructed,"
accommodations
from the Navy."
that
"requested a
she
also
"request[ing]
Id.
H 21.
conference
reasonable
Plaintiff
between
the
alleges
Navy,
[TCA]
and/or TCMP and herself to discuss the accommodations necessary,
details regarding set up, and attempt to come to a resolution."
Id.
H 23.
Plaintiff
conference"
asserts that "Defendants
agreed to the
and that Plaintiff believed that TCA,
TCMP,
and the
Navy "remained interested in resolving the issues."
Id. 1M 22-
23.
2012,
Plaintiff
alleges
that,
"by
conference had not taken place and
a
response
from
the
Navy
Request for Accommodation."
that
day,
[Plaintiff]
respond within ten
consider
the
February
[Plaintiff]
[regarding]
Id. U 24.
advised
the
her
21,
had not received
October
for
Navy
accommodation
17,
2011
Thus, in a "letter dated
that
if
it
(10) days of receipt of the letter,
request
the
to
be
did
not
she would
denied and would
proceed with consulting a counselor pursuant to 29 CFR 1614.105
in order to resolve the matter."
response,"
Plaintiff
Id.2
"instituted
an
pursuant to the Rehabilitation Act."
On June
in
15, 2012,
connection
with
alleges
not
provide
request,
a
copy
claim
against
dated
May
the
Z150
"assurance that
24,
2012,
date
by
which
the
directly
Defendants
regarding
the
Plaintiff
[Plaintiff]."
Z150
to
and/or TCMP,
[video
phone]
"could
medical
Id.
give
no
not
and/or a
offer
either
would be approved or
be
approved,
a
ordered,
Plaintiff also alleges
assurance
qualifications,
credentials of the interpreters,
K 25.
and/or TCMP, through
could
could
H 26.
and did
Id.
'sign language services'
[video phone]
installed or operational."
that
Plaintiff
which
[TCA]
although Defendants
the
Navy
response to her
"directly to
proposed the use of
video phone,"
the
Navy,"
the Navy's
Plaintiff asserts that "the Navy (and [TCA]
agreement)
against
during a "meeting with an EEO Counselor
her
the Navy sent
action
no
Id.
asserts that she received a copy of
accommodation
After "receiv[ing]
to
[Plaintiff]
certifications
or
with such being necessary in
2 Plaintiff's letter, attached as an exhibit to the Navy's motion
to dismiss, is dated February 22, 2012.
See ECF No. 10-2.
However,
Plaintiff's Amended Complaint and Plaintiff's Reply Brief supporting
her Motion to Amend - both filed after the Navy's motion to dismiss continue to assert that the letter was sent on February 21, 2012. See
Am. Compl. H
24, ECF No. 11-1; PL's Reply Br. at 4 n.l, ECF No. 21.
Thus, for the purposes of this discussion,
favor of Plaintiff,
21,
2012,
drawing all inferences in
the Court considers the letter sent on February
as Plaintiff contends.
the medical profession, or their availability on short notice."
Id. H 27.
"As
of
July
[had]
failed to
allow
[Plaintiff]
27,
2012,"
to return to work."
Defendants'
intentional
effort
impossible
Accordingly,
job
to
failure
force
and
Id.
. . . which would
U 29.
demonstrated
[Plaintiff's]
intolerable
"Defendants
According to
"a
deliberate,
resignation
working
and
conditions."
[to
Id.
Plaintiff alleges that she was forced "to quit her
effective
refus[al]
contends,
institute any accommodations
Plaintiff,
create]
Plaintiff
that
to
day"
and
cooperate
accommodation
ultimately
that
in
Defendants'
resolving
[led]
to
"fail[ure]
[her]
[Plaintiff's]
request
and
for
constructive
Id^
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