Matthews v. Gee et al

Filing 5

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 6/30/2017. Copy to Pro Se Plaintiff. (jsmi, )

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

ROBERT L. MATTHEWS,

Plaintiff,
Civil Action No. 3:17cv271-HEH

V.

TRACY GEE, et ai.
Defendants.

)

MEMORANDUM OPINION

(Granting Plaintiffs Motion to Proceed In Forma Pauperis
and Dismissing the Complaint)
THIS MATTER is before the Court on Plaintiff Robert L. Matthews's ("Plaintiff)

Motion to ProceedIn Forma Pauperis. (ECF No. 4.) The Court concludes that Plaintiff

is unable to pay the required fees. Therefore, Plaintiffs Motion will be granted. Plaintiff
may proceed in this case without paying the Court's filing fee. The Courtwill direct the

Clerk to file Plaintiffs Complaint.' (ECF No. 1.)
Plaintiff, who ispro se, brings suit against Lunenburg County, Virginia, as well as

Tracy Gee and Nicole Clark, in their respective capacities as County Administrator and
Human Resource Professional for Lunenburg (collectively, the "Defendants").

According to Plaintiff, the Defendants are liable for defamation and for multiple

' Plaintiffhas styled this filing as an "Amended Complaint," presumably in reference to his previous
Complaint against these Defendants, which the Court dismissed by Memorandum Opinion and Order on
March 9, 2017. See Matthews v. Gee, Civil Action No. 3:17cv32 (ECF Nos. 18, 19), Because Plaintiffs

previous case was closed, the Court will treatthe present filing as an attempt to file a new action and will
refer to it as his "Complaint."

violations of the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101, e/ seq.,

related to the termination of Plaintiff s employment.
For the reasons set forth below, however, the Court finds Plaintiffs Complaint

fails to state a claim and is largely frivolous. Accordingly, the Court will dismiss

Plaintiffs Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and Federal Rule of Civil
Procedure 8(a)(2).
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 MylanLabs, 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 corners of Plaintiffs Complaint. Viewed through this lens, the facts are as follows.
This case arises from Plaintiffs employment with Lunenburg County. (Compl.

5-6.) In June 2007, the County hired Plaintiff as a "buildings and grounds technician,"
though "no job description was provided ... at the time of hire." {Id. ^5.) Three years
later, in July 2010, the 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. f 9.) Plaintiff subsequently requested that the

Defendants provide him with additional training as well as personal protective
equipment. (Mfl 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. H12.) Immediately after Plaintiff arrived at the scene and
exited his vehicle, the dog assaulted him as well. (Jd.) Plaintiff suffered multiple

lacerations and punctures to his throat, hands, and wrists. {Id.) He also sustained injuries
that caused an "11% permanent disability" in each shoulder. {Id. fl 14, 16.)

As a result of the dog attack. Plaintiff filed a Worker's Compensation ("W.C.")
claim, which was approved. {Id. 113.) However, that "claim is still pending resolution
and settlement." {Id.)

After the incident on May 20, 2012, "Defendant[s] terminated Plaintiff s

employment in the position of ACO." {Id.

15-16.) Plaintiff remained out of work for

two years while recovering from his work-related injuries. {Id. H16.)

On May 1, 2014, Plaintiff returned to part-time work as a buildings and grounds
technician with Defendants' approval of light-duty restrictions. {Id. H19.) He then
resumed ftill-time work in August 2014. {Id. 120.) Despite the Defendants'
accommodations. Plaintiff continued to experience pain in his right shoulder. {Id.

19-

20.) He alleges that this pain necessitated further surgery, which he scheduled for
September 11, 2015. {Id HH 19-21.)

On September 4, 2015, one week prior to the surgery, Plaintiff received a letter
from Clark referencing the Family and Medical Leave Act ("FMLA"). {Id. H21.) The

letter explained that Plaintiffs surgery qualified for leave pursuant to the FMLA and that
he could continue to be paid through W.C., with the possibility of supplementing his

income through sick leave. (Compl. Ex. l,a 11, ECF No. 1-1.) The letter also stated that
Plaintiffs FMLA leave would be exhausted on December 4, 2015. {Id. at 1-2.)

Plaintiff subsequently spoke with Clark and told her that he "would use [his] sick

leave time from 11 Sept 2015 (the date of surgery) until 30 Sept 2015 (Intermittent
Leave), then Plaintiff would switch to W.C. on 1 Oct 2015 and start receiving W.C.

payments from VACORP, the county's insurance carrier." (Compl. 121.) Plaintiff
asserts that he memorialized this conversation in a written letter and then took it to Clark,

who subsequently "accepted the agreement." {Id., see also Compl. Exs. 2-3, ECF Nos.
1-2, 1-3.)

Plaintiff underwent shoulder surgery on September 11, 2015, and began his period
of FMLA leave. (Compl.

19-20.)

On December 2, 2015, Gee sent Plaintiff a certified letter reminding him that his

FMLA leave would expire on December 4, 2015, and verifying that he intended to return

to full-duty work on December 7, 2015. {Id. H23; see also Compl. Ex. 4, ECF No. 1-4.)
Plaintiff reported to work on December 4, seeking to return with his prior light-duty

restrictions in place. {See Compl. H24 (referencing his treating physician's "orders for
sedentary work on approximately 4 Dec 2015").) However, Gee stated, "No light duty
work is available. You are terminated." {Id.) On December 14, 2015, shortly after his
termination. Plaintiff asserts that his "restrictions were upgraded" by his attending
physician. {Id.)
Plaintiff contends that on December 8, 2015, he received a certified letter from

Gee stating that "[he was] considered to have resigned from [his] position." (Compl. Ex.
4

5, ECF No. 1-5.) Plaintiff then alleges that he republished this statement on January 4,

2016 {id. H30 (filing his EEOC charge)), May 14, 2016 {id. H31 (sending additional
papers to the EEOC)), August 30, 2016 {id. H32 (filing his original Complaint in the

Lunenburg County Circuit Court)), and December 30, 2016 {id. ^ 33 (filing his First
Amended Complaint in the Lunenburg County Circuit Court)).
11.

STANDARD OF REVIEW

The statute governing informa pauperis ("IFP") filings provides that "the court
shall dismiss the case at any time if the court determines that the action or appeal is
frivolous or ... fails to state a claim on which relief may be granted." 28 U.S.C. §
1915(e)(2)(B)(i)-(ii); see also Michau v. Charleston Cty, 434 F.3d 725, 728 (4th Cir.

2006) ("28 U.S.C. § 1915(e)... governs IFP filings in addition to complaints filed by
prisoners

" (emphasis added)).

When determining whether an action is "frivolous," the Fourth Circuit has noted
that "[t]he word ... is inherently elastic and 'not susceptible to categorical definition.'"

Nagy V. FMC Butner, 376 F.3d 252, 256 (4th Cir. 2004) {c{\xoiing Adams v. Rice, 40 F.3d
72, 74 (4th Cir. 1994)). "It is designed to confer on district courts the power to sift out
claims that Congress found not to warrant extended judicial treatment under the in fornia
pauperis statute." Id. "The term's capaciousness directs lower courts to conduct a
flexible analysis, in light of the totality of the circumstances, of all factors bearing upon

the frivolity of a claim." Id. at 257. "[D]istrict courts are at liberty to consider any
factors that experience teaches bear on the question of frivolity." Id.

When assessing whether an IFP complaint "fails to state a claim on which relief

may be granted," courts conduct a similar analysis to that used when considering a
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). "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). Rule 8(a)(2), which governs pleading generally, "requires only 'a
short and plain statement of the claim showing that the pleader is entitled to relief,' in
orderto 'give the defendant fair notice of what the ... claim is and the grounds upon
which it rests.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint
need not assert "detailed factual allegations," but it must contain "more than labels and
conclusions" or a "formulaic recitation of the elements of a cause of action." Id.

(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. "A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556). When considering an IFP filing, 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, 556 U.S. at 678.
6

Additionally, the Court acknowledges thatpro se complaints are afforded a liberal
construction. Laber 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't ofSoc. Servs., 901 F.2d 387,
390-91 (4th Cir. 1990). As the Fourth Circuit explained in Beaudett v. City ofHampton,

"[t]hough \pro sel 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 presentedto them."
775 F.2d 1274, 1276 (4th Cir. 1985).
III.

DISCUSSION

Plaintiff has attempted to separate his Complaintinto four "causes of action":
(Count One) wrongful termination, in violation of the ADA; (Count Two) failure to
accommodate, in violation of the ADA; (Count Three) defamation; and (Count Four)
retaliation, in violation of the ADA. (Compl.

35-38.)

Notwithstanding Plaintiffs organization, the Court will first address his

defamation claim before considering his allegations arising under the ADA.^

^Though not setforth in his "causes of action," Plaintiff makes passing allegations that the Defendants
violated the Privacy Act, 5 U.S.C. § 552a. {See Compl. 17-18.) The Court previously dismissed these
claims with prejudice, noting that they "fail because that statute only applies to federal agencies
[E]ven if Defendants had engaged in conduct proscribed by the Privacy Act, Plaintiffhas no cause of
action under that statute." Matthews v. Gee, Civil Action No. 3:17cv32 (ECF No. 18, at 10).

a. Defamation

Plaintiffs claim for defamation appears to be rooted in two, separate statements.
The first comes from the December 2, 2015, certified letter that he received from Gee,

which stated, in part: "By letter of September 4, 2015,1, on behalf of Lunenburg County,
notified you that not only were you eligible for protected leave under the [FMLA], but

that your requested leave commencing on September 11, 2015 for surgery qualified for
protected leave under the [FMLA]." (Compl. Ex. 4.) Plaintiff contends that "[t]his was a
willfull [sic] and false statement in that [he] talked to Defendant Clark and not Defendant

Gee about this matter." (Compl. 123.) The Complaint contains no facts suggesting that
this letter was sent to anyone other than Plaintiff or that its contents were published to a
third party.
The second statement comes from the December 8, 2015, certified letter from Gee,

which read, in part: "[Y]ou are considered to have resigned from your position effective
December 7, 2015." (Compl. Ex. 5.) Plaintiff asserts that "[t]his was a willfull [^/c] and
false statement that goes against Plaintiffs good name, reputation, and character."

(Compl. ^ 29.) Again, the Complaint is devoid of any facts alleging that anyone other
than Plaintiff received this letter or that the letter's contents were published to a third
party.

To properly allege defamation by publication in Virginia, plaintiffs must plead that
a defendant has "(1) publi[shed]... (2) an actionable statement with (3) the requisite

intent." Tharpe v. Saunders, 111 S.E.2d 890, 892 (Va. 2013) (citation and internal

quotation marks omitted); see also Schaecher v. Bouffault, 111 S.E.2d 589, 594 (Va.

2015); Hyland v. Raytheon Tech. Servs. Co., 670 S.E.2d 746, 750 (Va. 2009).^
After reviewing Plaintiffs claim, the Court concludes that he has, at a minimum,

failed to satisfy the first two requisite elements. Under the first element, the Complaint is
devoid of any factual allegation that the Defendants published the purportedly

defamatory statements to a third party. Being a county, Lunenburg "could only speak
through its agents." Chalkleyv. Atl. Coast Line R.R. Co., 143 S.E. 631, 641 (Va. 1928).
Because the letters were communications from Gee—acting as an agent for Lunenburg—

sent directly to Plaintiff, "and there is no [allegation] showing any publication of the
alleged [defamatory] matter by [the county], or its agents ... there is no basis for the
action." Id.

And even if Plaintiff had alleged that the Defendants published the statements, the
Court would still conclude that he failed to satisfy the second element because neither is

"actionable." Tharpe, 737 S.E.2d at 892. According to well-settled law, an actionable
statement in Virginia must be "both false and defamatory," Schaecher, 111 S.E.2d at 594,

meaning that it "tends so to harm the reputation of another as to lower him in the

estimation of the community or to deter third persons from associating or dealing with
him." Restatement (Second) of Torts § 559. "A false statement must have the requisite

defamatory 'sting' to one's reputation." Schaecher, 111 S.E.2d at 594. In other words,
the statement must "tend[] to injure one's reputation in the common estimation of
^Plaintiff is required to plead that Defendants published the purported defamatory statements.
Consequently, his factual allegations related to his own "republication" of the statements are immaterial.
{See Compl.tH 29-33.)

mankind, to throw contumely, shame, or disgrace upon him, or ... tend[] to hold him up
to scorn, ridicule, or contempt, or ... render him infamous, odious, or ridiculous." Id.
(quoting M955' v. Harwood, 46 S.E. 385, 387 (Va. 1904)).
The Court finds that neither statement is actionable because they are not

"reasonably capable of defamatory meaning." Id. at 595; see also Carwile v. Richmond

Newspapers, Inc., 82 S.E.2d 588, 591-92 (Va. 1954) ("[I]t is a general rule that allegedly
defamatory words are to be taken in their plain and natural meaning and to be understood
by courts ... as other people would understand them, and according to the sense in which
they appear to have been used.").
The first statement—Gee's contention that she sent the September 4, 2015,

letter—has no bearing whatsoever on Plaintiffs reputation. And the second statement—
that Plaintiff was considered to have resigned from his position when he did not return to

full-duty work—is equally deficient. This is particularly apparent when read within the
context of the December 2, 2015, letter reminding Plaintiff that his FMLA leave expired
on December 4, 2015, and "verify[ing his] intent to return to full-duty work." (Compl.

Ex. 4; see also Compl. H23 (stating that according to the Lunenburg personnel manual,

an employee who does not return to his position after a leave of absence "shall be
considered to have resigned his or her position").) Therefore, because neither statement
carries the requisite "sting" to Plaintiffs reputation, the Court concludes that both are
insufficient to support a claim for defamation.

Assuming arguendo that Plaintiff had properly pleaded the requisite elements, the
Court would find that this action warrants dismissal because it is "frivolous." See 28
10

U.S.C. § 1915(e)(2)(B)(i). The alleged defamatory statements were made beyond the

one-yearscope of Virginia's applicable statute of limitations—^which Plaintiff quoted in
his Complaint. (See Compl. ^ 37 (quoting Va. Code Ann. § 8.01-247.1 ("Every action

for injury resulting from ... defamation shall be brought within one year after the cause
of action accrues.")).) While it is evident that Plaintiff tried to circumvent this

requirement by pleading that he republished the statements numerous times within the
past year, see supra note 3, the Court construes this attempt to enlarge the applicable
statute of limitations as patently frivolous. That alone warrants dismissal.

Consequently, the Court concludes that Plaintiffs claim for defamation is
meritless and has no hope of being resuscitated by additional facts. Therefore, it must be

dismissed with prejudice."*
b. ADA Claims

Plaintiff also brings claims pursuant to the ADA for wrongful termination, failure
to accommodate, and retaliation. (Compl., fl 35-36, 38.) The Court will address each in
turn.

/, Wrongful Termination

Plaintiffs first ADA allegation is that Defendants unlawfully discriminated
against him when they terminated his employment on December 4, 2015.

Title I of the ADA prohibits employers from "discriminat[ing] against a qualified
individual on the basis of disability in regard to ... [the] discharge of employees." 42

^Plaintiff appears to raise additional defamation claims related to written statements and emails placed in
his personnel file beginning in May 2012. (See Compl. 17-18.) The Court previouslydismissed these
claims with prejudice because they were procedurally barred by Virginia's statute of limitations. See
Matthews v. Gee, Civil Action No. 3:17cv32 (ECF Nos. 18, at 7-9).
11

U.S.C. § 12112(a). "In a typical discharge case brought under the ADA, a plaintiff must

[plead facts sufficientto allege] 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 level that

met [his] employer's legitimate expectations;" and that (4) his disability was the "but-for"
cause of his discharge. Ennis v. Nat'l Ass'n ofBus. & Educ. Radio, Inc., 53 F.3d 55, 58
(4th Cir. 1995) (citations omitted) (first three elements); Gentry v. East West Partners

Club Mgmt. Co., Inc., 816 F.3d 228, 233-36 (4th Cir. 2016) (fourth element).
The Court finds that Plaintiff has not stated a plausible claim because he has failed

to satisfy both the third and fourth elements. He has pleaded no facts indicating that he

was performing his job at a level that met his employer's legitimate expectations at the
time he was discharged. Indeed, Plaintiff concedes that he was only able to return to

"sedentary work" on December 4, 2015, which included "walking or standing

occasionally [and] occasional[ly] lifting up to 10pounds and carrying items like small
tools." (Compl. ^ 24; Compl. Ex. 5; Compl. Ex. 11, ECF No. 1-11.) But, as Clark noted,
"[a] large portion of [Plaintiffs] job involve[d] walking and standing. Also he would
need to be able to [lift] more than 10 pounds." (Compl. Ex. 11; see also Compl. H24

("No light duty work is available."); Compl. Ex. 5 ("[Y]our previously held position ...

requires work that would exceed [the sedentary] work restrictions.").) Therefore, it is
evident from the face of the Complaint that Plaintiff was restricted from performing his

job at a level that met his employer's legitimate expectations at the time he was
discharged.

12

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 Gentry, 816 F.3d at 233-36. Plaintiff alleges that he
was terminated for filing a workers' compensation claim and for his inability to return to

full-duty work. Although Plaintiffs disability may have affected his capacityto work.
Plaintiff does not plead sufficient facts to support a plausible claim that his termination
was based on discrimination due to his disability.
Therefore, Plaintiffs discrimination claim must be dismissed.
a Failure to Accommodate

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

Title I of the ADA prohibits employers from "discriminat[ing] against a qualified
individual on the basis of disability" by "not making reasonable accommodations to the

known physical... limitations of an otherwise qualified individual with a disability who
is an ... employee, unless [a] covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of such covered entity,"
42 U.S.C. § 12112(b)(5){A).

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
reasonable accommodation." Reyazuddin v. Montgomery Cty., 789 F.3d 407, 414 (4th
13

Cir. 2015) (citation omitted). The Court finds that Plaintiff has failed to plead facts
sufficient to show that he could satisfy the third element.

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."). If a qualified individual cannot perform the essential functions of
the job in question, an employermay be obligated to assign a disabled employee to a

vacantposition for which he is otherwise qualified. Gile v. United Airlines, Inc., 95 F.3d
492, 498 (7th Cir. 1996). However, an employer is not obligated to "create a 'new'

position for the disabled employee." Id. at 499. Additionally, the ADA does not
reference "an individual's future 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.
Plaintiff appears to allege that Defendants failed to provide reasonable

accommodations by: (1) refusing Plaintiffs request to return to light-duty work; (2)
failing to provide the same accommodations that were afforded to him when he was out
of work from 2012 through 2014; and (3) not extending Plaintiffs leave time until his
physical restrictions were lifted. (Compl. f 36.) However, Plaintiff has failed to

sufficiently plead that Defendants' refusal to accommodate his alleged disability violated
the ADA.
14

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

only light-duty work. (Compl. T| 24 ("Plaintiffasserts that he remained under... medical
orders for sedentary work".).) But Defendants responded by informing him that "[n]o

light duty work [was] available." {Id.) The 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. Even when viewed in the light most favorable to Plaintiff, the Complaint fails to

support his argument that light-duty work would constitute a reasonable accommodation.
Second, Plaintiff asserts that Defendants should have provided him the same

accommodations that were previously afforded to him while he was out of work from

2012 through 2014. However, because allowing an employee to remain out ofwork is
obviously not a reasonable accommodation to enable that employee to work, this
contention is unmeritorious.

And third. Plaintiff contends that Defendants should have allowed him to have

additional medical leave. (Compl. ^ 24.) But the ADA only requires employers to

provide accommodations that would 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.
15

Hi, Retaliation

In his last cause of action, Plaintiff alleges 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 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 (emphasis
added).

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.

Plaintiffs alleges that he "was wrongfully terminated in retaliation for costs

associated with a legitimate [W.C.] claim in violation of the [ADA]." (Comp. K38.)
However, Plaintiffs allegations regarding his workers' compensation claim are wholly

independent and separable from conduct made illegal by the ADA. See Reynolds, 701
16

F.3d at 154 ("The retaliation claim based on [plaintiffs] worker's compensation inquiry

also fails.... Filing a workers' compensation claim is not something that is covered by
the ADA, but rather by retaliation provisions under state law.").

Consequently, Plaintiffs retaliation claims will also be dismissed.
/v. Frivolous Claims

As an additional matter, the Court observes that Plaintiffs ADA claims are nearly

identical to those previously raised—and dismissed—in his prior Complaint. {Compare

Compl., with Matthews v. Gee, Civil Action No. 3:17cv32 (ECF No. 1-11).) Though
Plaintiff has added a few intermittent factual allegations and Exhibits, the most

significant difference between the two filings is that Plaintiff has removed several facts
that this Court previously determined were fatal to his causes of action under the ADA.

Therefore, rather than "amplify[ing] the factual and legal basis on which [his
claims] rest," Matthews v. Gee, Civil Action No. 3:17cv32 (ECF No. 19), Plaintiff has
attempted to circumvent this Court's previous ruling to enable his case to escape

dismissal. This is clearly impermissible. And so, as an alternate ground, the Court finds
that Plaintiffs present claims are "frivolous" and must be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(i).

In light of the preceding analysis—^with regard to both the sufficiency and frivolity

of the pleading—^the Court determines that no future amendment could revive Plaintiffs
ADA claims. Consequently, the Court will dismiss them with prejudice.

17

IV.

CONCLUSION

Based on the forgoing, the Court will grant Plaintiffs Application to ProceedIn
Forma Pauperis and will direct the Clerk to file Plaintiffs Complaint. However, because
Plaintiffs Complaint fails to state a claim and is largely frivolous, the Court will dismiss

it with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and Federal Rule of Civil
Procedure 8(a)(2).

An appropriate Order will accompany this Memorandum Opinion.

/s/

Henry E. Hudson
United States District Judge
Date:

Richmond, Virginia

18