Matthews v. Gee et al

Filing 18

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 3/9/2017. (sbea, )

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

ROBERT L. MATTHEWS,

Plaintiff,
Civil Action No. 3:17cv032-HEH

V.

TRACY M. GEE,
et al..
Defendants.
MEMORANDUM OPINION

(Granting Motion to Dismiss)

Plaintiff Robert L. Matthews ("Plaintiff) brings suit pro se against Defendants

Tracy Gee, Nicole Clark, and the County of Lunenburg, Virginia (collectively

"Defendnats"). According to Plaintiff, Gee and Clark, in their respective capacities as
County Administrator and Human Resource Professional for Lunenburg County, are

liable for committingtortious conduct and for violating various state and federal statutes

and regulations in connection with Plaintiffs workplace injury and subsequent firing.
This matter comes before the Court on Defendants' Motion to Dismiss. (ECF No.

5.) Defendants seek dismissal of all claims. Their central arguments are that Plaintiffs
state-law claims are all barred by the relevant statutes of limitations and that Plaintiff has
failed to sufficiently plead his other claims pursuant to Federal Rule of Civil Procedure
12(b)(6).

The Defendants included an appropriate Roseboro Notice with the Motion, as

required by Local Civil Rule 7(K) and the Fourth Circuit's decision in Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975).

Each side has filed memoranda supporting their respective positions. The Court

will dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before the Court, and oral argument would not aid in the
decisional process. E.D. Va. Loc. Civ. R. 7(J).

For the reasons set forth below, the Court will grant Defendants' Motion.
1.

BACKGROUND

As required by Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court
assumes Plaintiffs well-pleaded allegations to be true and views all facts in the light
most favorable to him. T,G. Slater & Son v. Donald P. & Patricia A. Brennan, LLC, 385

F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 1 F.3d 1130, 1134 (4th
Cir. 1993)). At this stage, the Court's analysis is both informed and constrained by the
four comers of Plaintiffs Amended Complaint. Viewed through this lens, the facts are as
follows.

This case arises from Plaintiffs employment with Lunenburg County. (Am,

Compl. fl 5-6, ECF Nos. 1-10, 1-11.) In June 2007, the County hired Plaintiff as a
"buildings and grounds technician." (Id. ^5.) Three years later, in July 2010,
Defendants offered Plaintiff additional part-time work as an assistant Animal Control
Officer ("ACO"). (Id.

6.) Plaintiff received initial training for the ACO position in

March, 2011. (Id. ^ 9.) After completing his initial training. Plaintiff requested that

Defendants provide him with additional training as well as personal protective
equipment. (/(O?.

10-11.) Those requests were denied. {Id.)

On May 20, 2012, while working as an ACO, Plaintiff responded to a call

reporting a dog attack. {Id. 112.) Immediately after Plaintiff arrived at the scene and
exited his vehicle, the dog attacked him as well. {Id.) Plaintiff suffered muhiple

lacerations and punctures to his throat, hands, and wrists. {Id.) He also tore his right and
left rotator cuffs, causing an 11% permanent partial disability. {Id.)

Because of his injuries, Plaintiff filed a Worker's Compensation claim which was

approved. {Id. H13.) However, that "claim is still pendingresolution and settlement."
{Id.)

After the attack, "Defendant[s] terminated Plaintiffs employment in the position

of ACO." {Id. fl 15-16.) Plaintiff remained out of work for two years while recovering
from his work-related injuries. {Id. H 16.)

Plaintiffalleges that in May, 2012, Defendants "participated in defamation of
character and invasion of privacy by placing written statements and emails into Plaintiffs
personnel file documenting non-work related and non-medical related hearsay and
conversations purported to be fact." {Id. 117.) Plaintiff further alleges that Defendants
shared those defamatory statements with several other individuals. {Id. 118.)

On May 1, 2014, Plaintiff returned to work as a buildings and grounds technician
with Defendants' approval of light-duty restrictions. (Am. Compl. 119.) Despite
Defendants' accommodations, Plaintiff continued to experience pain in his right shoulder.
{Id. H20.) Consequently, Plaintiff took unpaid leave pursuant to the Family and Medical

Leave Act ("FMLA"), beginning on September 11,2015, and lasting through December
4,2015. {Id.) Plaintiff underwent shoulder surgery on September 25, 2015. (Jd.

19.)

Prior to the surgery. Defendant gave Plaintiff a performance review which stated:
[I]t has cost the County a great deal of additional part-time staffing to compensate
for Mr. Matthews['s] restrictions. The County has gone above and beyond to
accommodate the restrictions, but we must draw the line when it costs us more

than our budget to get the job done. During Bob's previous years of employment,
the County rarely had to get anyone to assist him to complete his duties.
Contrarily, since his return in August 2014 [after left shoulder surgery due to dog
attack] to ftill-time with restrictions, the County has had to utilize inmate
assistance and pay part-time staff at an hourly rate to maintain the grounds,
especially weedeating, changing light bulbs, checking overhead leaks, etc.
{Id. H21 (third alteration in original).)

On October 22, 2015, Plaintiffs Worker's Compensation physician submitted

medical orders stating that Plaintiffs medical condition limited him to sedentary work
and that he was restricted to "walking or standing occasionally, [o]ccasional lifting of 10

pounds maximum and/or carrying articles like small tools." {Id. f 22.) Additionally, the
physician prohibited Plaintiff from working with his right arm away from his body. {Id.)
On December 4, 2015, Plaintiff received a letter from Defendants indicating that

his FMLA leave would expire on December 7, 2015. {Id. f 23.) The letter stated that
Plaintiffs failure to return to work that day would be deemed a resignation. {Id.)
Plaintiff reported to work on December 4, 2015, seeking to return to his light duty
restrictions. {Id. K24.) However, Defendants stated "no light duty work is available.

You are terminated." (M)' On December 14, 2015, shortly after his termination.

' The Amended Complaint includes this statement in quotation marks but does not expressly
state who said it.

Plaintiff states that his "restrictions were upgraded" by the attending Workers'
Compensation physician. {Id.)

Plaintiff filed a complaint against Defendants in the Lunenburg County Circuit
Courton August 30,2016. (ECFNo. 1-1.) That court dismissed the case against

Defendants without prejudice because Plaintiff had pleaded insufficient facts to support a
cause of action. (ECF No. 1-9.) Plaintiff subsequently filed his Amended Complaint on
December 30, 2016, in the Lunenburg County Circuit Court. Defendants removed the
case to this Court on January 17, 2017.
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 applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992) (citation omitted). TheFederal Rules of Civil Procedure "require[] only

'a short and plain statement of the claim showing thatthe pleader is entitled to relief,' in
orderto 'give the defendant fair notice of what the ... claim is and the grounds upon
which it rests.'" BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41,47 (1957)). A complaint need not assert "detailed factual

allegations," but must contain "more than labels and conclusions" or a "formulaic
recitation of the elements of a cause of action." Twombly, 550 U.S. at 555 (citations

omitted). Thus, the "[f]actual allegations must be enough to raise a right to relief above
the speculative level," to one that is "plausible on its face," rather than merely
"conceivable." Id. at 555, 570. In considering such a motion, a plaintiffs well-pleaded

allegations are taken as true and the complaint is viewed in the light most favorable to the
plaintiff. T.G. Slater, 385 F.3d at 841 (citation omitted). Legal conclusions enjoy no
such deference. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The Court acknowledges that pro se complaints are afforded a liberal construction.
Later v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006). The Court, however, need not

attempt "to discern the unexpressed intent of the plaintiff." Id. Nor does the requirement
of liberal construction excuse a clear failure in the pleading to allege a federally

cognizable claim. See Weller v. Dep'tofSoc. Servs., 901 F.2d 387, 390-91 (4th Cir.

1990). As the Fourth Circuit explained in Beaudett v. City ofHampton, "[t]hough \pro

se^ litigants cannot, of course, 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." 775 F.2d 1274,
1276 (4th Cir. 1985).
III.

DISCUSSION

Defendants move to dismiss the Amended Complaint in its entirety. Plaintiff has

attempted to enumerate his Amended Complaint into six separate "causes of action."
However, some of these counts appear to contain multiple allegations, while others

merely repeat previously stated claims. As best the Court can discern, the Amended
Complaint alleges:
Count One: Common law negligence and regulatory violations resulting in
Plaintiffs personal injury.

Count Two: Wrongful termination and failure to accommodate, both in violation
of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.

Count Three: Common law defamation as well as violations of the Privacy Act of

1974, 5 U.S.C. § 552a, and the Health Insurance Portability and Accountability Act of
1996 ("HIPAA"), Pub. L. No. 104-191, 110 Stat. 1936.
Count Four: Failure to accommodate, in violation of the ADA.

Count Five: Retaliation, in violation of the ADA.

Count Six: Wrongful termination, in violation of the ADA.

Notwithstanding Plaintiffs organization of his claims, the Court will structure its
analysis to address similar allegations together.
a. Tort Claims

Plaintiffs Amended Complaint alleges that he suffered personal injury and
defamation as a result of Defendants' conduct. In Count One, Plaintiff alleges that his

injuries from the 2012 dog attack were a result of Defendants' failure to provide him with
adequate training and equipment. (Am. Compl. H31.) In Count Three, Plaintiff avers
that Defendants "participated in defamatory actions" by including false statements in
Plaintiffs personnel file and subsequently publishing those statements to a third party.
(M1I33.)
Defendants raise the affirmative defense that Counts One and Three of the

Amended Complaint are procedurally barred by Virginia's statutes of limitations for

personal injury and defamation. (Br. Supp. Mot. Dismiss 6, 10.) In response. Plaintiff
urges the Court to adopt a "delayed accrual rule of discovery" for his personal injury and

defamation claims. (PI. Second Br. 0pp. Mot. Dismiss 4-5, ECF No. 14.) He concedes
that if the Court uses the date of injury to determine when the statute of limitations began

to run then his "opportunity to bring [an] action has expired." (PI. First Br. 0pp. Mot.
Dismiss 1-2, ECF No. 12.) However, "Plaintiff requests that the date of discovery that

injury has occurred be used to determine the statute of limitations." (Id. at 2)

Virginia law requires that "every action for personal injury, whatever the theory of
recovery ... shall be broughtwithintwo years after the cause of action accrues." Va.,
Code Ann. § 8.01-243(A). And "[e]very action for injury resulting from libel, slander,

insulting words, or defamation shall be brought within one year afterthe cause of action
accrues." VA Code Ann. § 8.01-247.1. Additionally, in Virginia, "when an injury is

sustained in consequence of the wrongftil or negligent act of another and the law affords
a remedy, the statute of limitations immediately attaches'^ See Jordan v. Sands, 500
S.E.2d 215, 218 (Va. 1998)(emphasis added). Therefore, a personal injury or
defamation claim does not toll during a period of time that the plaintiff was unaware of

the actions—or illegality ofthose actions—^giving rise to a claim.^
The Court finds that the state-law claims in Counts One and Three are barred by

the relevant Virginia statutes of limitations. The conduct giving rise to Plaintiffs alleged
injuries in Count One and Count Three occurred around May, 2012, yet Plaintiff didnot
file his initial complaint until well over four years later in August, 2016. {See Compl. 4;
Am. Compl. fl 12, 17.) Furthermore, the statutes of limitations immediately attached at

^While there are statutory exceptions creating a discovery rule for some cases of fraud and
medical malpractice, they are inapplicable here. See Va. Code Ann. § 8.01-243(C).
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the time of injury, in May, 2012. There is no discovery rule under Virginia law which
would cure Plaintiffs untimeliness.

Consequently, to the extent that Counts One and Three allege tortious injury in
violation of Virginia law, they are time-barred and will be dismissed with prejudice.
b. Regulatory Claims

In Count One, Plaintiff also alleges that, by failing to provide him with adequate

safety equipment, Defendants violated Federal Occupational Safety and Health
Administration ("OSHA") regulations and the Virginia Occupational Safety and Health
("VOSH") Compliance Program. (Am. Compl. 131.)

However, Plaintiffs allegations

of those regulatory violations also fail.

Plaintiff cannot recover for alleged OSHA violations because those regulations do

not provide for a private right of action. See Minichello v. U.S. Indus., Inc., 756 F.2d 26,
29 (6th Cir. 1985) ("OSHA regulations can never provide a basis for liability because

Congress has specified that they should not."); Jeter v. St. Regis Paper Co., 507 F.2d 973,
977 (5th Cir. 1975) ("Congress did not intend OSHA to create a new action for damages
in favor of employees."); Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323, 1323 (4th Cir.
1974) (affirming district court decision that Occupational Safety and Health Act
"preclude[s] a private remedy"). Similarly, no private right of action exists under
Virginia law for VOSH violations. See VA Code Ann. § 40.1-49.4 (leaving exclusive
enforcement power to the Commissioner of Labor and Industry).

Accordingly, to the extent that Plaintiff is attempting to state a claim for

Defendants' purported regulatory violations, he cannot do so. Those claims will be
dismissed with prejudice.
c. Privacy Claims

In Count Three, Plaintiff alleges that Defendants disseminated Plaintiffs personal

employment and medical information. He contends that this constitutes violations of the
Privacy Act and HIPAA. (Am. Compl. ^ 33.) However, the Complaint fails to state a
cognizable claim under either federal statute.

Plaintiffs allegations of violations of the Privacy Act fail because that statute only

applies to federal agencies. Wheeler v. Gilmore, 998 F. Supp. 666, 668 n.4 (E.D. Va.

1998); see also Polchowski v. Gorris, 714 F.2d 749, 752 (7th Cir. 1983) (holding thatthe
Privacy Act applies only to agencies of the United States Government); St. Michael's
Convalescent Hosp. v. California, 643 F.2d 1369, 1373 (9th Cir. 1981) (holding that the

Privacy Act's requirements do not apply to "state agencies or bodies."). Therefore, even
if Defendants had engaged in conduct proscribed by the Privacy Act, Plaintiffhas no
cause of action under that statute.

Plaintiffs HIPAA violation claim also fails. Courts have consistently concluded

that HIPAA does not create a private right of action. Acara v. Banks, 470 F.3d 569, 571

(5th Cir. 2006) (collecting cases); Segen v. Buchanan General Hosp., Inc., 552 F. Supp.
2d 579, 584 (W.D. Va. 2007) ("[I]t is clear that a private right of action does not exist
based upon HIPAA violations."). Thus Plaintiff cannot state a claim based on
Defendants' purported HIPAA violation.
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Therefore, any claims which Plaintiff attempts to raise pursuant to the Privacy Act
or HIPAA will be dismissed with prejudice.
d. ADA Claims

As best as the Court can discern, Counts Two, Four, Five, and Six of Plaintiffs

Amended Complaint each attempt to allege multiple claims arising under the ADA. This
combination of claims includes: (1) wrongfully discharging Plaintiff from his positions

with the County; (2) failure to provide reasonable accommodations for Plaintiffs

disability; (3) failure to engage in an interactive process;^ and (4) retaliation based on
Plaintiffs worker's compensation claim. (Am. Compl., fl 32, 34-36.) The Court will
discuss each in turn.

L Wrongful Termination

Plaintiffs first ADA allegation is that Defendants unlawfully discriminated

against him when they fired him. "In a typical discharge case brought underthe ADA, a
plaintiff mustprove by a preponderance of the evidence that (1) [he] was in the protected
class; (2) [he] was discharged; (3) at the time of the discharge, [he] was performing [his]

job at a levelthat met [his] employer's legitimate expectations; and (4) [his] discharge
occurred under circumstances that raise a reasonable inference of unlawful

discrimination." Ennis v. Nat'lAss'n ofBus. & Educ. Radio, 53 F.3d 55, 58 (4th
Cir.1995) (citations omitted).

^Nowhere inthe Amended Complaint does Plaintiff use the words "interactive process."
However, in his briefs, Plaintiff argues that he was attempting to raise interactive process claims.
{See PI. First Br. Opp'n Mot. Dismiss 3; PI. Second Br. Opp'n Mot. Dismiss 9.) While the Court
must constrain its analysis to the four comers of the Amended Complaint, because of Plaintiffs
pro se status and to give him every reasonable inference as the non-moving party, the Court will
address the interactive process allegation.
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Count Two of Plaintiffs Amended Complaint alleges that Defendants violated the
ADA by wrongfully terminating Plaintiff from his position as an ACO on May 20,2012,
after Plaintiff sustained extensive injuries while performing job-related activities. (Am.

CompL,

15, 32.) However, Defendants have raised a statute of limitations defense to

the 2012 termination claim. (Def. Br. Supp. Mot. Dismiss 7-8.)
Title II of the ADA does not contain a statute of limitations. A Soc 'y Without A

Name v. Virginia, 655 F.3d 342, 347 (4th Cir. 2011). The ADA predates Congress's
establishment of the four-year catch-all statute of limitations for federal statutes. Id,
Therefore, the Fourth Circuit has held that courts should adopt the "state statute of

limitations that applies to the most analogous state-law claim." Id. (citing 42 U.S.C. §

1988(a)). As a result, the Fourth Circuithas concluded that "the one-year limitations

period in the Virginia Disabilities Act applies to ADA claims brought in Virginia." Id. at
348.

Plaintiffs initial complaint addressing his 2012 termination was filed in the

Lunenburg County Circuit Court on August 30, 2016. (Compl. 4.) This is well beyond
the one-year statute of limitations for bringing ADA claims in Virginia. Consequently,
any ADA claim regarding Plaintiffs 2012 termination is time-barred and will be
dismissed with prejudice.

In Counts Two and Six, Plaintiff appears to allege wrongful discharge or

discrimination with respect to his 2015 termination. However, the Court finds that
Plaintiff has failed to state a plausible claim pursuant to Rule 12(b)(6). He has pleaded
no facts indicating that he was performing his job at a level that met his employer's
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legitimate expectations at the time he was discharged. Indeed, the Complaint concedes
that Plaintiff was only able to return to light-duty work, not on a full-duty basis as
required by Defendant. (Am. Compl. fl 23-24.)

Moreover, Plaintiff has failed to allege any facts indicating that his discharge

occurred under circumstances that would permit an inference of discrimination based on

his status as a disabled person. See Baird v. Rose, 192 F.3d 462,470 (4th Cir. 1999)

(holding that a plaintiff alleging discrimination under the ADA must demonstrate that
"his or her disability played a motivating role in the employment decision"); Ennis, 53

F.3d at 62 (affirming summary judgement against plaintiff who failed to prove that
termination was linked to her son's status as a disabled person). Plaintiff alleges that he

was terminated for filing a workers' compensation claim and for his inability to return to

fiill-duty work. Although Plaintiffs disability may have affected his ability to work,
Plaintiff does not allege that his termination was based on discrimination due to his

disability. Therefore, Plaintiffhas failed to state a claim for wrongful termination under
the ADA.
iu Failure to accommodate

The Complaint also lacks sufficient factual material to state a plausible claim that
Defendants failed to accommodate Plaintiffs disability.

For a failure to accommodate claim, a plaintiff must plead sufficient facts to show

that "(1) [he] qualifies as an 'individual with a disability,' (2) the [employer] had notice

of [the plaintiffs] disability, (3) [the plaintiff] could perform the essential functions of
the job with a reasonable accommodation, and (4) the [employer] refused to make any
13

reasonable accommodation." Reyazuddin v. Montgomery Cty., 789 F.3d 407,414 (4th
Cir. 2015) (citation omitted). In this case, the only element in dispute is whether Plaintiff

could perform the essential functions ofthe job with a reasonable accommodation."^
A reasonable accommodation is one that will not impose an "undue hardship" on

the employer's operation of business. See id. at 416-417; Myers v. Hose, 50 F.3d 278,
283 (4th Cir. 1995) (citations omitted) ("In mandating only those modifications that

qualify as reasonable, Congress clearly meant to avoid placing employers in an untenable
business position.");see also 42 U.S.C. § 12112(b)(5)(A). If a qualified individual

cannot perform the essential functions of thejob in question, an employer may be
obligated to assign a disabled employee to a vacantposition for which he is otherwise
qualified. Giles v. United Airlines, Inc., 9SV3d

(JihCix. 1996). However, an

employer is not obligated to "createa 'new' position for the disabled employee."

Id. Additionally, the ADA does not reference "an individual'sfuture ability to perform
the essential functions of his position." Myers, 50 F.3d at 283. Therefore, a "reasonable
accommodation is by its terms most logically construed as that which presently, or in the
immediate future, enables the employee to perform the essential functions of the job in
question." Id.

As to his 2015 termination, Plaintiff appears to allege that Defendants failed to

provide reasonable accommodations by (1) refusing Plaintiffs request to return to light
^Without citing any authority, Defendants state the Plaintiff was not disabled within the meaning
of the ADA because his injury was temporary. However, the Fourth Circuit has concludedthat
"an impairment is not categorically excluded from being a disability simply because it is
temporary." Summers v. Altarum Institute, Corp., 740 F.3d 325, 333 (4th Cir. 2014). Therefore,
Plaintiff has cleared the low 12(b)(6)hurdle by pleading enough factual material for the Court to
determine that he was disabled under the ADA.
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duty work and (2) not extending Plaintiffs "ADA coverage" until his physical
restrictions were lifted. (Am. Compl.

32, 24.) However, Plaintiff has failed to

sufficiently plead that Defendants' refusal to accommodate his alleged disability violated
the ADA.

First, Plaintiff asserts that upon return from FMLA leave he requested to perform

only light duty work. But Defendants responded by informing him that "no light duty
work [was] available." (Am. Compl. f 24.) The Amended Complaint does not challenge

the fact that no light duty position was available. Thus, it appears that Defendants would
have had to create a new position for Plaintiff. The ADA simply does not require this.
Giles, 95 F.3d at 499. Additionally, Plaintiffs second performance review clearly
indicates that additional accommodations would have placed Defendants in an untenable
business position. In pertinent part, the review states:

[I]thas cost the County a great a great deal of additional part-time staffing to
compensate for Mr. Matthews restrictions. The County has gone above and
beyond to accommodate the restrictions, but we mustdraw the line when it costs
us more than our budget to get the job done.

(Am. Compl. H21.) Therefore, even if Defendants had a vacant light workposition
available, such an accommodation would clearly continue to impose an "undue

[financial] hardship" on Defendants. Even when viewed in the light most favorable to
Plaintiff, the Amended Complaint fails to support his argument that light duty work
would constitute a reasonable accommodation.

Plaintiff also states that he requested the accommodation of an extension of "ADA

coverage"—^which the Court interprets as a request for additional medical leave. (Am.

15

Compl. f 24.) But the ADA only requires employers to provide accommodations which
enable the disabled employee to perform the essential functions of his job. Because

additional leave would necessarily render plaintiffs job unperformed, it is not the type of
accommodation contemplated by the ADA. See Myers, 50 F.3d at 283 ("We therefore

hold that reasonable accommodation does not require the County to wait indefinitely for
Myers' medical conditions to be corrected ....")•

Accordingly, Plaintiffs failure to accommodate claim will be dismissed.
UL Failure to Engage in an Interactive Process

Although Plaintifffails to make an express interactive process allegation in his
Complaint, his brief states that Defendants refused to engage in an "interactive process to

determine any other reasonable accommodations." (PI. Second Br. 0pp. Def. Mot.
Dismiss 9.) Mindful of its responsibility to provide a liberal construction forpro se

complaints, the Court will address whether Plaintiff has stated a plausible claim for
failure to engage in an interactive process.

An interactive process typically requires "thatemployers make a good-faith effort
to seek accommodations." Williamson v. Bon Secours Richmond Health Sys., Inc., 34 F.

Supp. 3d 607, 613 (E.D. Va. 2014) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d
296, 315 (3d Cir. 1999)). Persistent refusal to engage in discussions or take any remedial
action could arguably constitute failure to engage in the interactive process. See, e.g.,
Jacobs V. N.C. Admin. Ojfice ofthe Courts, 780 F.3d 562, 581-82 (4th Cir. 2015).
Moreover, the ADA regulations provide:

16

To determine the appropriate reasonable accommodation it may be necessary for
the covered entity to initiate an informal, interactive process with the individual
with a disability in need of the accommodation. This process should identify the
precise limitations resulting from the disability and potential reasonable
accommodations that could overcome those limitations.

29 C.F.R. § 1630.2(o )(3).

However, "the interactive process is not an end in itself; rather it is a means for

determining what reasonable accommodations are available to allow a disabled individual

to perform the essential job functions of the position outright." Wilson v. Dollar General
Corp., 717 F.3d 337, 347 (4th Cir. 2013) (citing Rehling v. City ofChi., 207 F.3d 1009,
1015 (7th Cir. 2000)). Thus, "an employer who fails to engage in an interactive process

will not be held liable if the employee cannot identify a reasonable accommodation that
would have been possible." Id. (citations omitted). "Likewise, 'liability for failure to

engage in an interactive process depends on a finding that, had a good faith interactive

process occurred, the parties could have found a reasonable accommodation that would
enable the disabled person to perform the job's essential functions.'" Id. {Q\\\ng Jones v.
Nationwide Life Ins. Co., 696 F.3d 78, 91 (1st Cir. 2012)).

Plaintiffs brief alleges that Defendant failed to offer an interactive process by
refusing to give Plaintiff additional leave to allow the "treating physician to reevaluate
the Plaintiffs medical condition and physical capabilities." (PI. Second Br. 0pp. Def.
Mot. Dismiss 9.) However, as previously discussed, taking additional time off of work is
not a reasonable accommodation.

The facts of this case are analogous to those in the Fourth Circuit's decision in
Wilson. Ill F.3d 337. In that case, the plaintiff took eight total weeks of medical leave
17

after injuring his left eye. Id. at 340. On the day the plaintiff soughtto return to work, he
requested additional medical leave because his condition had worsened. Id. However,

his employer gave the plaintiffthe ultimatum to return to workthat day or be terminated.
Id. at 341. Unable to return to work, the plaintiff accepted his termination and sued the

employer under the ADA. Id. On review, the Fourth Circuit held that the plaintiffs
ADA claim failed because he did not "identify a possible reasonable accommodation that
could have been discovered in the interactive process and would have allowed him to

perform the essential functions of his position." Id. at 347.

Similarly here, Plaintiff fails to state a claim against Defendants for refusing to

engage in an interactive process because Plaintiffhas not identified a reasonable
accommodation that would have allowed him to perform the essential functions of his

job. Merely asking for additional medical leave is not an accommodation thatwould
have enabled Plaintiffto perform his duties. Therefore, Plaintiffs claim of failure to
engage in the interactive process will be dismissed.
/v. Retaliation

Lastly, Plaintiffalleges that Defendants' termination of his employment was
unlawful retaliation. "To establish a prima facie retaliation claim under the ADA, a

plaintiff must prove (1) he engaged in protected conduct, (2) he suffered an adverse
action, and (3) a causal link exists between the protected conduct and the adverse action."
Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 154 (4th Cir. 2012). In defining
protected conduct, the ADA provides that, "[n]o person shall discriminate against any
individual because such individual has opposed any act or practice made unlawful by this
18

chapter or because such individual made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. §
12203.

Consequently, a person engages in protected conduct when he opposes a practice
that the ADA makes illegal or makes an accusation that his employer has violated the

ADA. See Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216 (4th Cir. 2002).
Although a plaintiff need not show the conduct actually constituted an ADA violation,

the person must allege "the predicate for a reasonable, good faith belief that the behavior
she is opposing violates the ADA." Id.

Count Five of Plaintiffs Complaint alleges that "Plaintiff was wrongfully
terminated in retaliation for costs associated with a legitimate [workers' compensation]

claim in violation of the [ADA]." (Am. Comp. H35.) Plaintiffs allegations regarding his

workers' compensation claim are wholly independent and separable from conduct made
illegal by the ADA. Consequently, Plaintiff could not have a reasonable, good faith
belief that his workers' compensation charges were protected activity under the ADA.
As a result. Plaintiffs retaliation claims pursuant to the ADA will be dismissed.
IV.

CONCLUSION

Based on the foregoing. Defendant's Motion to Dismiss (ECF No. 5) will be
granted. Counts One and Three will be dismissed with prejudice. Counts Two, Four,
Five, and Six will be dismissed without prejudice.

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An appropriate Order will accompany this Memorandum Opinion.

Henry E. Hudson
United States District Judge
Date:

on

Richmond, Virginia

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