Kelly v. Town of Abingdon, Virginia

Filing 82

OPINION and ORDER granting in part and denying in part 62 Motion for Summary Judgment; the motion is Granted as to Counts II and III; the motion is Denied as to Count V, which will proceed to jury trial; Denying as moot 64 Motion to Exclude. Signed by Senior District Judge James P. Jones on 9/7/2021. (flc)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
GREGORY WARREN KELLY,

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Plaintiff,
v.
TOWN OF ABINGDON, VIRGINIA,
Defendant.

Case No. 1:19CV00032
OPINION AND ORDER
JUDGE JAMES P. JONES

Monica L. Mroz, STRELKA EMPLOYMENT LAW, Roanoke, Virginia, for
Plaintiff; Cameron S. Bell and Ramesh Murthy, PENN, STUART & ESKRIDGE,
Abingdon, Virginia, for Defendant.
In this employment-related civil case asserting claims under the Americans
with Disabilities Act (“ADA”) along with a state law breach of contract claim, the
defendant has moved for summary judgment. For the reasons that follow, I will
grant the motion as to the ADA claims but will deny the motion as to the breach of
contract claim.
I.
The following facts are taken from the summary judgment record and, where
disputed, are stated in the light most favorable to the plaintiff as nonmovant.
Plaintiff Gregory Kelly became the Town Attorney for the Town of
Abingdon (“Town”) in 2005. He was appointed Town Manager in September

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2006. Town Council meeting minutes from that month summarize the terms of his
employment as follows:
I.

Compensation
a.

b.

c.

d.

II.

$100,000 base salary with standard Town employee
benefits. Salary to be reviewed at least yearly upon the
adoption of each year’s annual budget.
$3,100.00 (or such amount representative of the annual
cost of health insurance) to be paid into an ICMA, VRS
or equivalent retirement plan as designated by the Town
Manager on November 1, 2006 and each fiscal year
thereafter.
The guarantee to return to the position of Town Attorney
should serving in the capacity of Town Manager not be
successful.
Nine (9) Months severance pay at the current amount of
the Town Manager’s salary and benefits at the time of
departure if serving in the capacity of Town Manager is
not successful and the position of Town Attorney is not
available.

Education Expenses
a. The Town will pay all educational and incidental expenses
in the pursuit of a Master’s Degree in Public Administration
or related field.
b. The cost of all annual Continuing Legal Education and
incidental expenses required by the Virginia State Bar to
remain actively licensed to practice law in Virginia.
c. All membership fees, conference costs and incidental
expenses for LGA, IMLA, ICMA and VML.

Mem/ Supp. Mot. Summ. J. Ex. 1, Kelly Dep. Ex. W, ECF No. 63-1.
In his deposition, Kelly discussed how he had negotiated the terms of his
employment with the Town Council at the time. Kelly requested that he be entitled
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to a severance payment equaling two years of his salary and benefits, and the Town
Council countered by offering three months of severance pay. Some back and
forth ensued, and the parties settled on a severance payment equal to nine months
of Kelly’s salary plus benefits. Regarding the “not successful” term stated in the
meeting minutes, Kelly testified:
Basically, it was my understanding, and I think council’s
understanding, that if something didn’t work out between either party
that required me to walk away or for them to get rid of me, it would
be deemed unsuccessful, and I would be entitled to nine months
severance at the rate that I was earning at that time, not at the
$100,000 rate.
Pl.’s Br. Opp’n Mot. Summ. J. Ex. 1, Kelly Dep. 20, ECF No. 72-1. Kelly testified
that the minutes were simply a summary of the parties’ agreement and that the
terms were later memorialized in a separate formal employment contract.
The signed final employment contract has either been lost or never existed.
It was not produced in discovery, and no witness other than Kelly claims to have
seen it. The mayor at the time who would have signed it on behalf of the Town is
in declining health and was not deposed.
Kelly produced a draft employment contract that he says he prepared at the
request of Vice Mayor Ed Morgan following the September 2006 Town Council
meeting where the parties agreed on the terms of Kelly’s employment. Kelly
testified that the draft “reflects all the details of what the agreement between me
and the town was upon being hired.” Id. at 23. Kelly stated that Morgan gave him
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handwritten notes summarizing the terms discussed and instructed him to “‘[g]o
prepare contract and have a copy of the notes and contract put with the minutes of
the town council.’” Id. “Ed wrote large notes on small pieces of paper, and those
notes were placed with . . . the signed document, and was directed to be put in the
vault where all the town contracts were to be kept and also with the minutes.
That’s one thing that Ed made sure was that he wanted a copy of this to be put with
the minute book.” Id. at 24. Kelly testified that he and the mayor at the time, Lois
Humphreys, both signed the contract, and Humphreys was to place it with the
minutes in the vault.
The draft Kelly produced had been located in a file folder in his garage that
also contained his resume and other materials from when he applied for the Town
Manager job.

At various points, Kelly and several Town Council members

searched for the signed contract in the Town vault, but it was never found. The
evidence suggests that access to the vault was not tightly controlled and many
people could have gained access over the years.
Regarding the length of time for which the employment contract would be in
effect, Kelly testified:
It was my understanding that it was perpetual as long as I was
town manager, and upon me leaving, it would be enforced by either
party. If they choose they didn’t want me around, they could simply
pay me or put me back in the position of town attorney if it was still
available. Likewise, I had that right as well, to walk away, take the
severance, or go back to the town attorney position, if it was available.
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Id. at 29–30. Kelly stated that it was his understanding that even if he voluntarily
retired from his role as Town Manager, he would still be entitled to the severance
payment. He referenced a situation in the neighboring City of Bristol, Virginia,
where an outgoing City Manager had received a severance payment equal to two
years’ salary and benefits upon his retirement, which had occurred not long before
Kelly’s appointment as Town Manager. That situation had garnered negative press
attention, so the Town Council did not want to grant Kelly such a large “golden
parachute” severance package. Id. at 33–34. As a result, the parties agreed on the
smaller amount of nine months’ salary and benefits. According to Kelly, the
availability of the severance payment was the same, however: he would be entitled
to it when his employment ended, regardless of the reason or manner in which it
ended. Kelly stated that the severance payment was intended to account for the
time it would take him to secure legal, managerial, or other employment following
his departure from the Town.
Kelly testified that he had intended to work for the Town of Abingdon for
the remainder of his career. In his view, the fact that his working conditions forced
him to leave his employment rendered his service as Town Manager “not
successful” as stated in the meeting minutes. The position of Town Attorney was
not available at the time Kelly’s employment as Town Manager ended.

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The draft agreement that Kelly produced does not include the phrase “not
successful” or anything similar. Instead, it states that should Kelly “cease to be
employed by the Town of Abingdon, Virginia, regardless of reason (i.e.
resignation, termination, or retirement, etc.), he shall be entitled to nine (9) months
of severance pay at the rate of his salary at the time of ceasing employment.” Pl.’s
Br. Opp’n Mot. Summ. J. Ex. 12, Employment Contract 3, ECF No. 72-12. The
draft agreement also states that “a copy of the adopted minutes of the Council
meeting” reflecting Kelly’s appointment as Town Manager “shall be attached to
this employment contract and be incorporated herein by said reference.” Id. The
draft contract states that its terms are “perpetual in nature” but can be modified by
mutual written agreement. Id. The draft contract further states, “Should either
party breach this agreement, the non-breaching party shall be entitled to recover
from the breaching party all costs and reasonable attorney’s fees associated with
the enforcement of this agreement.” Id.
The draft contract that Kelly produced was printed on lined legal bond
paper. He testified that when he was hired as Town Attorney, he used that paper
for any legal documents he was preparing for the Town. The Town stopped using
legal bond paper around the time Deborah Icenhour became Town Attorney in
2006.

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Kelly testified that Town Council member Cathy Lowe periodically made
statements to the effect that if Kelly left, the Town would have to pay him nine
months’ salary as severance pay. Kelly says she made these statements 10 to 20
times, including on the day that he tendered his resignation. He testified that
Council member Rick Humphreys made similar statements.
Kelly served as Town Manager for approximately 12 years. Following his
departure, the Town paid Kelly for his accrued leave time but did not issue him
any severance payment.
Kelly was diagnosed with anxiety at least as early as 2014 and with high
blood pressure at least as early as 2016. Several employees witnessed visible
symptoms of his high blood pressure, including profuse sweating and a red face.
Former Council members expressed concern for his health and told him to go
home when he was not feeling well.
Beginning in 2014 or 2015, local controversy arose regarding a proposed
commercial development known as the Meadows.

In 2016, two new Town

Council members were elected: Cindy Patterson and Wayne Craig. Patterson and
Craig were both members of a group called Friends of Abingdon (“FOA”), which
was formed to oppose the Meadows project. Patterson ran on an open-government
and anti-development platform. Craig publicly objected to aspects of how the
Meadows project had been handled.

They joined Council members Lowe,
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Humphreys, and Bob Howard to comprise the Town Council from July 1, 2016
through June 30, 2018.
Leading up to the 2016 election and continuing through the 2018 election,
the atmosphere at the Town was politically charged and at times contentious.
There was a great deal of in-fighting among Council members. This environment
and Council members’ unprofessional behavior led Kelly to file a series of charges
of discrimination and retaliation with the U.S. Equal Employment Opportunity
Commission (“EEOC”). He filed his first charge in September 2017, a second
charge in December 2017, and a final charge in July 2018, following his
resignation.
Several employees testified that Kelly was under a lot of stress and pressure
from Council members between 2016 and 2018. Kelly talked about his blood
pressure and anxiety in the presence of colleagues. Council members’ conduct
exacerbated Kelly’s health conditions. It was obvious that his blood pressure was
quite high. In addition to his red face and sweating, Kelly openly took medication
for headaches and sometimes had trouble communicating and articulating his
thoughts.
At multiple unspecified times, Kelly told each Council member that he was
experiencing extreme anxiety and high blood pressure. Council members would
follow Kelly back to his office after contentious meetings and criticize him,
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causing additional stress. Kelly would tell them about his conditions and that he
needed to go home or take a break. Sometimes he would interrupt a meeting and
walk out. Lowe had previously observed former Vice Mayor Morgan excuse Kelly
from meetings due to his health conditions. When Kelly told Lowe about his
conditions, she dismissed his concerns.
In the 2016–2018 time period, on unspecified dates, Council members failed
to respect Kelly’s boundaries, interrupted his breaks and vacations, and ridiculed
him for taking walks and breaks. Kelly would sometimes lie down at work to try
to calm down and reduce his blood pressure. He would go for walks for the same
reason. Lowe, who was the Mayor at the time, never told Kelly that he could not
take breaks or take vacation, although she did say that either Kelly or Assistant
Town Manager Cecille Rosenbaum needed to be available at all times and they
could not both take vacations at the same time. On one occasion, Kelly was on
vacation in Miami and had to fly back to Roanoke, Virginia, to meet with Council
members regarding legal matters for a period of about 12 hours. Kelly also
testified that Council members frequently called him while he was on vacation or
at conferences, despite his request that they give him space when he was away
from Town Hall.
Council members criticized Kelly for not being in the office enough. Craig
saw Kelly walking in town and told him he looked like a “‘streetwalker.’” Kelly
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Dep. 68, ECF No. 72-1.

Kelly could not identify the dates on which these

comments were made, but he testified that they occurred after he filed his first
EEOC charge in September 2017. Humphreys, Patterson, and Lowe also made
critical comments about Kelly walking and stated that he should be in his office
conducting business instead.
In the fall of 2017, Lowe violated Kelly’s privacy by looking through his
Apple watch and his cell phone. It is unclear whether this happened before or after
Kelly filed his first EEOC charge. He believes she also surreptitiously gained
access to his computer in June 2017. He suspected she was searching private
messages and deleting certain information, but he cannot be sure. Humphreys
once took Kelly’s iPad home with him following a Council meeting and locked
access to it due to too many failed password attempts. Other Town employees also
believed their communications were being monitored through review of emails as
well as security cameras.
Kelly testified that Lowe, Craig, and Humphreys repeatedly threatened him
with termination, 50 or more times, on a near-daily basis. They would ask him
frequently if he had found a new job yet. He believes that this happened both
before and after he filed his first EEOC charge. Lowe’s threats and other conduct
toward Kelly initially decreased after he filed his EEOC charges –– one witness
testified that Lowe was being cautious in her communications due to the charges
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— but her behavior escalated later after Rosenbaum’s employment ended in
February 2018. Kelly stated that the threats of termination became more frequent
after he filed his EEOC charges, although he could not point to specific dates or
documented incidents.
Humphreys threatened to fire one of Kelly’s direct reports even though
Kelly alone was supposed to have the power to terminate employees in the
Council-Manager form of government. Humphreys said that he would fire Kelly if
Kelly did not fire the employee. Lowe and Humphreys also pressured Kelly to
terminate the police chief because of a supposed unauthorized write-in campaign
for Town Council, which they thought had cost another Council member her seat.
Lowe pressured Kelly to hire or reinstate certain people or put them in certain
positions and threatened termination if he did not comply. Lowe would raise her
voice and invade Kelly’s personal space, getting very close to him and pointing a
finger in his face. In April 2017, Craig told Kelly that he needed to befriend the
President of FOA because that was who would call the shots about who would be
terminated.
Kelly frequently received profane, angry phone calls and text messages in
the middle of the night from Humphreys regarding train whistles and noise from
trash dumpsters being emptied. Humphreys owned a bed and breakfast and was
concerned about how these things would affect his business.
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Lowe would contradict and undermine Kelly, telling him he was wrong and
then telling others that everything he was saying was wrong. She told Kelly she
would not be managed by the Town Manager and that it was her mission to
question everything the Town Manager said. Id. at 146. Patterson and Craig
behaved disrespectfully and uncivilly during Town Council meetings. Patterson
was actively working against Kelly, according to Howard, and FOA was flooding
the Town with Freedom of Information Act requests.
Council members would try to put Kelly on the spot at Council meetings,
asking him questions he was unprepared to answer, and then publicly imply that he
was causing a delay on the issue. They would try to get him to pick sides on
contentious issues and would ask his opinion and then do the opposite of what he
advised them to do.

Council members would try to cause division among

appointees and employees “for their own purposes.” Pl.’s Br. Opp’n Mot. Summ.
J. Ex. 9, Bailey Dep. 57, ECF No. 72-9. Lowe told Rosenbaum she needed to get
out of Kelly’s shadow while also telling Kelly to get control of Rosenbaum.
Humphreys, Patterson, and Craig circumvented Kelly and went directly to
department heads and Town employees and asked them to do things.
Humphreys regularly used profanity with Town employees. Craig called
various people “‘assholes,’” including Kelly. Kelly Dep. 195–96, ECF No. 72-1.
Humphreys denigrated employees, yelled at them, and told them they did not know
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how to do their jobs. Humphreys publicly demeaned the Director of Public Works,
who resigned his position. He was later re-hired by a subsequent Council. In
January 2018, Humphreys yelled at and used profanity toward employee Jason
Boswell regarding a Historic Preservation Review Board issue involving a roof
renovation. The Town lost five key employees from 2016 to 2018. Employees
complained to Kelly about the Council members, and Kelly felt powerless to do
anything because of how the Council members were treating him.
In the spring of 2018, Lowe and Craig had Human Resources Director Stacy
Reichler open a bank safety deposit box to store the personnel files of Kelly,
Icenhour, and Rosenbaum,1 the three Town Council appointees. Reichler said this
was highly unusual based on her training.
When he began his employment with the Town, Kelly negotiated for the
creation of a computer network drive on which he could store files from his law
practice and personal files, to which only he would have access. At some point
during a server migration in or around 2016, the drive ceased to be maintained.
Information Technology Director Floyd Bailey at times provided a backup of the
drive at Kelly’s request, and one was provided to Kelly recently, although it may
only have contained the files as they existed around 2006. The old server has been
recycled, and files can no longer be retrieved from it. In interrogatory responses,

1

Icenhour and Rosenbaum had also filed EEOC charges.
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the Town said that any files previously assigned to Kelly were reassigned to
successor Town Managers by Bailey. Kelly speculates that the Town intentionally
destroyed the documents that were saved on the legal drive, which may have
included a copy of his employment contract, but he has presented no evidence of
this.

In the course of this litigation, the Town offered to provide personal

documents that were stored on the hard drive of Kelly’s old work computer if
Kelly submitted a supplemental request for documents, but no supplemental
request was submitted.
News of Kelly’s second EEOC charge appeared in a local newspaper. The
Town’s insurer had received a call from a reporter, who had confirmed the
existence of the charge. It is unclear who leaked the information about the charge
to the paper. Lowe and the other Council members learned of the leak but did not
investigate or take action regarding this disclosure of confidential personnel
information.
The proposed budget for the 2018-19 fiscal year did not include a raise for
Kelly.

While Kelly remained employed through the budget process, he had

announced his resignation before the budget was adopted. The appointees had not
received pay increases in the 2017-18 fiscal year either. The budget for that year,
however, was adopted in May 2017 and went into effect in July 2017, before Kelly
filed his first EEOC charge.
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Several witnesses testified that Council members stopped communicating
with Kelly after he filed his EEOC charges. This may have been due to a letter
from Kelly’s attorney to the Town Council members instructing them not to
discuss Kelly’s claims with him, investigate the claims, or attempt to reach a
resolution with him. There is no evidence that the Town Council sought to
communicate with Kelly’s attorney about Kelly’s claims, either directly or through
the Town’s legal counsel.
Kelly talked to Human Resources Director Reichler about his treatment by
Council members. He told her that he was expected to be on call at all times, and
Council members were not respecting boundaries around down time. Reichler
advised Kelly to set expectations and parameters around his communications with
Council members, and she told him he was entitled to have a healthy work-life
balance. Reichler did not report Kelly’s complaints to Council members.
After Kelly filed his first EEOC charge, Reichler advised Lowe that Kelly
needed to be given some down time away from the office and have his boundaries
respected. Lowe responded, “That’s ridiculous.” Pl.’s Br. Opp’n Mot. Summ. J.
Ex. 6, Reichler Dep. 55, ECF No. 72-6. After Kelly filed his EEOC charges, Lowe
became very aggressive toward him, did not share important information with him,
and frequently visited his office. Profane messages from Council members and

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disrespectful behavior purportedly increased after Kelly filed his EEOC charges,
although there are few details in the record to support this contention.
Between 2016 and 2018, Kelly experienced panic attacks and an
exacerbation of his health conditions. He was prescribed medications for his blood
pressure and anxiety. He was also prescribed medication to help him sleep. His
physician ultimately recommended that he leave his job to protect his health. His
need for these medications lessened after he left his employment with the Town.
Kelly filed his first charge of discrimination with the EEOC on September
13, 2017. He checked the boxes on the form for both disability discrimination and
retaliation. The details he wrote on the form, however, do not mention retaliation
or a request for accommodations. The September 7 charge states, in relevant part:
Mr. Kelly suffers a disability, to-wit, anxiety and depression.
These conditions have been exacerbated due to the often
unprofessional and occasionally outrageous actions of several of Mr.
Kelly’s supervisors, the Town Council of Abingdon and the Mayor of
Abingdon. Due to political in-fighting among Council members, Mr.
Kelly’s disabilities have affected daily life activities. Mr. Kelly works
day-to-day in a severe and pervasive hostile working environment.
Despite performing his job exceptionally well, he has been threatened
with termination. . . . Mr. Kelly has been subjected to insults,
invasions of privacy, disclosure of confidential information, and
profane and obscene messages from Town leadership.
Mr. Kelly has been threatened and mocked by Abingdon
leadership due to his disability and is concerned for his livelihood.
Upon information and belief, Abingdon leadership has defamed him
to community groups. Abingdon leadership has discussed and
disseminated confidential personnel information to third parties, the

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public and representatives of the media. Abingdon leadership has at
times, operated with disregard to local ordinances.
Kelly Dep. Ex. B, ECF No. 63-1. A Notice of Suit Rights regarding this charge
was mailed to Kelly’s counsel on December 12, 2017. Kelly did not file suit
within the required 90 days.
Kelly filed his second charge on December 21, 2017. Here, he repeated
some of the statements in his first charge and added the following:
Mr. Kelly has continued to suffer from . . . retaliatory [sic]
towards his disability and for filing a Charge of Discrimination on
September 13, 2017. . . .
Mr. Kelly was informed by the Director of Human Resources
for the Town of Abingdon that the Mayor of Abingdon held an inperson meeting with her on October 5, 2017. The Mayor inquired
whether Mr. Kelly could be terminated and/or not reappointed to his
position. The Mayor expressly stated that her desire was for the
“EEOC Charge to go away.”
Further, while my co-worker Cecille Rosenbaum, who has also
filed a charge of discrimination with the EEOC, left town for a bit, the
Mayor and Vice-Mayor met with me to tell me I needed to get Ms.
Rosenbaum “under control” or they would terminate me. Ms.
Rosenbaum has done nothing against office practice or policy to
warrant any threat of termination. For that matter, neither have I.
The Mayor has further directed Mr. Kelly to install a personal
friend in the Community Development Coordinator position or risk
termination. In addition, the Mayor and Vice Mayor continually
contact the Directors of Parks and Planning and Code Enforcement,
direct reports to Mr. Kelly. Upon information and belief, the Mayor
and Vice Mayor circumvent Mr. Kelly due to filing a Charge of
Discrimination and/or because of his disability.

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Kelly Dep. Ex. C, ECF No. 63-1. A Notice of Suit Rights regarding this charge
was mailed to Kelly’s counsel on January 28, 2018. Kelly again did not file suit
within 90 days.
Kelly filed his third and final EEOC charge on July 10, 2018. In this charge,
he referenced for the first time a request for accommodations. This third charge
repeated many of the statements in the prior charges and added the following:
Despite performing his job exceptionally well, he was continuously
threatened with termination if he did not do as certain council
members directed despite being bound by law and a strict code of
local government ethics to implement only the policies enacted by the
collective majority of the council. . . . Mr. Kelly . . . has been publicly
ridiculed and defamed on several occasions. Mr. Kelly’s health issues
became threatening enough for his physician to inform him that he
should request accommodations or remove himself from his working
environment in order to protect himself from worsening and depleting
health.
Mr. Kelly has continued to suffer from discriminatory animus
towards his disabilities and retaliation due to his disabilities and for
filing Charges of Discrimination. . . .
On January 10, 2018, Mr. Kelly requested several reasonable
accommodations for his disabilities. The Town refused to engage in
the interactive process in any meaningful way in order to find
accommodations to Mr. Kelly’s disabilities. Mr. Kelly only received
a token communication from the Town’s legal counsel several months
later, in or about April of 2018, stating that the Town would engage in
the interactive process. When Mr. Kelly attempted to further
communicate with the Town concerning the interactive process, he
did not receive further reply from the Town or the Town’s legal
counsel.
On or about May 7, 2018, due to the severe and pervasive
hostile work environment targeting individuals with disabilities, Mr.
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Kelly had no alternative but to resign his employment. Mr. Kelly
attempted to work in an untenable work environment. However,
because of the abusive nature of that work environment, Mr. Kelly
suffered a constructive discharge.
Kelly Dep. Ex. D, ECF No. 63-1. Kelly timely filed suit after receiving the Notice
of Suit Rights letter pertaining to this charge.

While the charge mentions

accommodations, it refers only to a letter from his counsel to the Town that I
previously ruled did not to contain requests for disability-related accommodations.
Kelly v. Town of Abingdon, 437 F. Supp. 3d 517, 522, 528 (W.D. Va. 2020). The
charge does not mention a request for short breaks, walks, or any other kind of
accommodation.
Kelly had begun searching for another job in November 2017. He was
offered and accepted a position with his current employer on April 4, 2018. He
submitted his resignation letter on April 18, 2018, but his resignation was not
effective until May 7, 2018, following the annual budget process. In other words,
he did not actually leave his employment with the Town for more than a month
after he accepted another job. Kelly testified that he felt ethically obligated to stay
through the budget process because no one else knew how to do it. Kelly’s
resignation letter was cordial and did not raise any complaints or suggest that he
considered himself to be constructively discharged.
Lowe, Humphreys, and Howard announced in the spring of 2018 that they
would not be seeking reelection that year. While Craig and Patterson would
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remain on Council until mid-2020, Kelly knew when he resigned that three new
Council members would take office on July 1, 2018.
On this record, the Town seeks summary judgment on all three of Kelly’s
remaining claims.2 The motion has been fully briefed and orally argued.
II.
A. Summary Judgment Standard.
Summary judgment is warranted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is material if its existence or nonexistence could result in a different jury verdict. JKC Holding Co. v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). When ruling on a summary
judgment motion, the court should consider the parties’ pleadings, depositions,
answers to interrogatories, admissions on file, and affidavits. Celotex Corp. v.
Catrett ex rel. Catrett, 477 U.S. 317, 322 (1986). “[T]he nonmoving party must
rely on more than conclusory allegations, mere speculation, the building of one
inference upon another, or the mere existence of a scintilla of evidence.” Johnson
v. United Parcel Serv., Inc., 839 F. App’x 781, 783 (4th Cir. 2021) (unpublished)

2

Other claims contained in the Amended Complaint, Count I (ADA
Discrimination) and Count IV (ADA Interference), were previously rejected by the court,
leaving only Count II (ADA Retaliation), Count III (ADA Accommodation), and Count
V (Breach of Contract). Kelly v. Town of Abingdon, No. 1:19CV00032, 2020 WL
2553614, at *8 (W.D. Va. May 20, 2020).
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(quoting Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d
532, 540 (4th Cir. 2015)).
“[C]ourts may not resolve genuine disputes of fact in favor of the party
seeking summary judgment.”

Tolan v. Cotton, 572 U.S. 650, 656 (2014).

“Summary judgment cannot be granted merely because the court believes that the
movant will prevail if the action is tried on the merits.” Jacobs v. N.C. Admin.
Office of the Cts., 780 F.3d 562, 568 (4th Cir. 2015) (quoting 10A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2728 (3d ed. 1998)).
The court may not assess credibility on a motion for summary judgment. Id. at
569.
Summary judgment is not a disfavored procedural shortcut, but an important
mechanism for weeding out claims and defenses that have no factual basis.
Celotex Corp., 477 U.S. at 327. It is the affirmative obligation of the trial judge to
prevent factually unsupported claims and defenses from proceeding to trial.
Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993).
B. ADA Retaliation Claim.
“A plaintiff may demonstrate retaliation though either direct evidence of
retaliation or through the McDonnell Douglas [Corp. v. Green, 411 U.S. 792, 802–
05 (1973),] pretext framework.” Johnson, 839 F. App’x at 783 (citing Laing v.
Fed. Express Corp., 703 F.3d 713, 717 (4th Cir. 2013)). Here, Kelly has produced
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no direct evidence of retaliation,3 so we proceed through the familiar McDonnell
Douglas burden-shifting framework.
To establish a claim of retaliation under the ADA, a plaintiff must show that
“(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’l Red Cross, 701 F.3d 143, 154 (4th Cir. 2012). The first element is not
contested here; filing a charge of discrimination with the EEOC is protected
conduct under the ADA.
As for the second element, in the retaliation context, “a plaintiff must show
that a reasonable employee would have found the challenged action materially
adverse,” meaning it could have “dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. v. White,
548 U.S. 53, 68 (2006) (internal quotation marks and citation omitted). “[I]t is

3

Rosenbaum testified that after the appointees filed their EEOC charges, Lowe
asked Reichler “how could she get rid of us.” Pl.’s Br. Opp’n Mot. Summ. J. Ex. 8,
Rosenbaum Dep. 75, ECF No. 72-8. Kelly similarly testified that Reichler told him,
“The mayor just came to see me and inquired in terms of whether or not they could
terminate you and make these charges go away.” Id. at Ex. 1, Kelly Dep. 194, ECF No.
72-1. This is inadmissible hearsay that I cannot consider in deciding the Motion for
Summary Judgment. Reichler herself did not so testify. “Only evidence that would be
admissible at trial may be considered for summary judgment purposes.” Hunter v. Prince
George’s Cnty., 36 F. App’x 103, 106 (4th Cir. 2002) (unpublished). “[H]earsay
evidence, which is inadmissible at trial, cannot be considered on a motion for summary
judgment.” Md. Highways Contractors Ass’n v. Maryland, 933 F.2d 1246, 1251 (4th Cir.
1991). The burden is on the proponent of summary judgment material to show its
admissibility. Fed. R. Civ. P. 56(c)(1)(B) advisory committee’s note to 2010 amendment.
With respect to these statements, Kelly has not met that burden.
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important to separate significant from trivial harms,” as federal employment laws
do not create “a general civility code for the American workplace.” Id. (internal
quotation marks and citation omitted).

“[N]ormally petty slights, minor

annoyances, and simple lack of good manners will not” deter a reasonable worker
from engaging in protected activity. Id.
Kelly claims that one of the adverse actions he suffered was a constructive
discharge. “The constructive-discharge doctrine contemplates a situation in which
an employer discriminates against an employee to the point such that his working
conditions become so intolerable that a reasonable person in the employee’s
position would have felt compelled to resign.” Green v. Brennan, 136 S. Ct. 1769,
1776 (2016) (internal quotation marks and citation omitted). In such a situation,
the law will treat the employee’s resignation as a discharge. Id. at 1776–77.
“In assessing intolerability, the frequency of the conditions at issue is
important.” Evans v. Int’l Paper Co., 936 F.3d 183, 193 (4th Cir. 2019). “[W]hen
the conduct is isolated or infrequent, it is less likely to establish the requisite
intolerability.” Id. But “[t]he more continuous the conduct, the more likely it will
establish the required intolerability.” Id. “Further, difficult or unpleasant working
conditions, without more, are not so intolerable as to compel a reasonable person to
resign.” Id. The question is not whether resigning was the plaintiff’s wisest or
best choice under the circumstances, but rather whether a reasonable person in the
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plaintiff’s position “would have had no choice but to resign.” Perkins v. Int’l
Paper Co., 936 F.3d 196, 212 (4th Cir. 2019) (internal quotation marks and
citation omitted).

This standard is higher than the severity or pervasiveness

required to prove a hostile environment harassment claim. Id.
An ADA retaliation claim requires “but for” causation. United States ex rel.
Cody v. ManTech Int’l, Corp., 746 F. App’x 166, 177 (4th Cir. 2018)
(unpublished) (citing Gentry v. E.W. Partners Club Mgmt. Co., 816 F.3d 228, 235–
36 (4th Cir. 2016)). There are two ways to establish the causation element of a
retaliation claim.

“First, a plaintiff may establish that the adverse act bears

sufficient temporal proximity to the protected activity.” Johnson, 839 F. App’x at
784. “Second, a plaintiff may establish the existence of other facts that alone, or in
addition to temporal proximity, suggests that the adverse employment action
occurred because of the protected activity.” Id. “To avoid summary judgment, the
plaintiff must produce direct evidence of a stated purpose to discriminate and/or
indirect evidence of sufficient probative force to reflect a genuine issue of material
fact.” Jacobs, 780 F.3d at 577 (citations omitted). “What is required is evidence
of conduct or statements that both reflect directly the alleged discriminatory
attitude and that bear directly on the contested employment decision.” Id. at 577–
78 (citations omitted).

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“Where timing is the only basis for a claim of retaliation, and gradual
adverse job actions began well before the plaintiff had ever engaged in any
protected activity, an inference of retaliation does not arise.” Francis v. Booz,
Allen & Hamilton, Inc., 452 F.3d 299, 309 (4th Cir. 2006) (citation omitted).
“[W]hen animus already exists between the plaintiff and his employer prior to the
protected activity at issue, the plaintiff needs to be able to show that his protected
conduct ‘changed’ the ‘status quo’ in some fashion.” ManTech Int’l, 746 F. App’x
at 181 (quoting Feldman v. Law Enf’t Assocs. Corp., 752 F.3d 339, 349 (4th Cir.
2014)).
Claims raised in an EEOC charge are time-barred if not asserted in a federal
lawsuit within 90 days of receiving a Notice of Right to Sue letter for the charge.
42 U.S.C. § 2000e-5(f)(1). A number of courts have held that when a plaintiff has
filed a series of EEOC charges but has not filed suit within 90 days of dismissal of
the earlier-filed charges, the notice of dismissal of the final charge does not serve
to revive time-barred claims raised in the earlier charges. See, e.g., Wade v.
Knoxville Utils. Bd., 259 F.3d 452, 460 (6th Cir. 2001); Bowen-Hooks v. City of
New York, 13 F. Supp. 3d 179, 203 (E.D.N.Y. 2014); Woods v. Lancaster Indep.
Sch. Dist., 834 F. Supp. 2d 512, 516 (N.D. Tex. 2011); Felix v. City & Cnty. of
Denver, 729 F. Supp. 2d 1243, 1250–51 (D. Colo. 2010).

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“[T]he continuing violation theory does not eliminate the requirement that a
plaintiff file a judicial action within ninety days of receipt of notice of the right to
sue.” Brown v. Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d 959, 962 (10th Cir.
1991). The continuing violation doctrine, which tolls the statute of limitations for
filing a claim with the EEOC, is meant to ensure “that meritorious discrimination
claims are not pretermitted because the claimant needed to experience a pattern of
repeated acts before she could be expected to realize that the individual acts were
discriminatory in nature.” Loubriel v. Fondo del Seguro del Estado, 694 F.3d 139,
144 (1st Cir. 2012).
This purpose would not be served by extending the 90-day
filing period. . . . By the time that she receives a right-to-sue notice, a
claimant is necessarily aware of the defendant’s discriminatory
conduct; she has by then already recognized the occurrence of
discrimination and filed her administrative claim.
Id.; see also Gibbs v. Gen. Motors Corp., 104 F. App’x 580, 582 (7th Cir. 2004)
(unpublished) (“Gibbs cannot avail herself of the continuing-violation doctrine
because she obviously believed that the time-barred acts were discriminatory when
she filed EEOC charges in early 2001.”).
The Town asserts several grounds in support of its Motion with respect to
Kelly’s retaliation claim. It first contends that Kelly cannot now complain about
incidents he raised in his first two EEOC charges because he did not timely sue on
those charges, and those claims are now time-barred. This argument only goes to
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the constructive discharge claim; the other alleged adverse actions — failure to
give a deserved pay raise and failure to make a severance payment — would have
occurred only after Kelly had filed his second charge with the EEOC and formed
the basis of his third charge, on which he timely filed suit.
The Town also argues that Kelly has failed to prove the existence of any
adverse action.

Finally, the Town contends that Kelly has not established a

genuine issue of fact as to whether the purported adverse actions occurred because
of Kelly’s protected activity, the filing of his EEOC charges.
The final argument is the most compelling. Even if Kelly has established
that his work environment was so objectively intolerable that he had no choice but
to resign, the record is virtually devoid of evidence tying Council members’
treatment of him to his EEOC charges.

Based on Kelly’s evidence, Lowe,

Humphreys, Patterson, and Craig treated him poorly before he filed his EEOC
charges, and they continued to treat him poorly after he filed his charges. They did
so for their own reasons, such as Humphreys’ private business concerns about his
bed and breakfast and Patterson’s and Craig’s political agendas pertaining to the
Meadows development. Indeed, there are so few details and dates set forth in the
record that it is difficult to even discern which conduct occurred before Kelly filed
his charges and which incidents occurred after he began engaging in protected
activity.

Testimony by Kelly and Rosenbaum generally stating that Council
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members’ behavior worsened after the EEOC charges is too vague and conclusory
to raise a genuine issue of material fact. On the record before the court, no
reasonable jury could conclude that any constructive discharge which may have
occurred would not have happened but for Kelly’s protected activity under the
ADA.
Kelly fares no better with respect to his other alleged adverse actions. He
resigned as Town Manager in April, before the budget process for the coming year.
Any complaint that he did not receive a raise for the 2018-2019 fiscal year is
nonsensical, as he no longer worked for the Town during that year.

If his

complaint is that the budget that was proposed just prior to his departure should
have included a raise for him, that argument also falls flat, as he had announced his
resignation several weeks before the budget was adopted. And if he contends he
should have received a raise in the prior 2017-2018 fiscal year, the denial of such a
raise could not have been retaliatory because the decision would have been made
by July 2017, nearly three months before he filed his first charge with the EEOC.
The record further contains no evidence raising any inference that the Town
decided not to give Kelly severance pay because he had filed EEOC charges. The
record does not reveal that the Town Council ever voted on whether to issue Kelly
a severance payment or even met to discuss his severance agreement. At most, the
record suggests that some Town Council members believed he was not entitled to
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any severance payment because he quit. Any suggestion that the Town would
have given Kelly a severance payment but for his ADA-protected activity is pure
speculation, which is insufficient to overcome a motion for summary judgment.
Because Kelly has failed to establish a prima facie case of retaliation, it is
unnecessary to proceed through the remainder of the burden-shifting analysis. I
will grant the Town’s Motion as to Kelly’s ADA retaliation claim.
C. Failure to Accommodate Claim.
The ADA requires an employer to “make reasonable accommodations for an
applicant or an employee’s disability.” EEOC v. Fed. Express Corp., 513 F.3d
360, 371 (4th Cir. 2008). A plaintiff claiming a failure to accommodate must
establish that “(1) he suffered a disability; (2) his employer knew of the disability;
(3) with reasonable accommodations, he was otherwise qualified to perform the
essential functions of the job; and (4) his employer refused to make such
reasonable accommodations.” Baker v. City of Chesapeake, 644 F. App’x 222,
224 (4th Cir. 2016) (unpublished) (citing Wilson v. Dollar Gen. Corp., 717 F.3d
337, 345 (4th Cir. 2013)). “Implicit in the fourth element is the ADA requirement
that the employer and employee engage in an interactive process to identify a
reasonable accommodation.” Haneke v. Mid-Atl. Capital Mgmt., 131 F. App’x
399, 400 (4th Cir. 2005) (unpublished); see 29 C.F.R. § 1630.2(o)(3).

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The Town contests the final element, asserting that it never denied Kelly the
accommodations he says he requested, namely short breaks and walks. It also
argues that Kelly is barred from asserting this claim because he did not specifically
allege in his final EEOC charge that he requested and was refused the ability to
take short breaks or walks. The Town further contends that Kelly has not produced
sufficient evidence showing that he actually requested accommodations in the form
of walks or short breaks.
It is undisputed that Kelly did in fact take walks and breaks. While he
worked long hours, it is further undisputed that he took vacations and attended
conferences. Individual Council members may have criticized him from time to
time for leaving Town Hall, but he apparently did so anyway.

There is no

evidence that he was ever disciplined for doing so. The Town did not refuse him
this accommodation.
Kelly’s evidence does not paint the picture of an ideal working environment,
and Council members’ alleged behavior is certainly not a model of employee
relations. But the ADA does not require elimination of stress and criticism, even
for an employee with anxiety and high blood pressure.
Kelly was the chief executive for the Town. His position of Town Manager
was a political appointment, and he served under five elected officials, each with
their own agendas. In this kind of position, stress and a precarious work-life
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balance are likely unavoidable. While he only claims to have needed to take short
breaks and walks to preserve his health, it is clear that what he really wanted was
for Council members to be nicer to him, respect his decisions, and not bother him
so much. These are not reasonable disability-related accommodation requests;
they are general grievances about his supervisors. The undisputed evidence fails to
create a genuine issue of material fact as to Kelly’s failure-to-accommodate claim.
I will therefore grant the Town’s Motion as to this claim.
D. Breach of Contract Claim.4
Virginia substantive law governs the plaintiff’s breach of contract claim
brought pursuant to the court’s supplemental jurisdiction. Musselwhite v. Mid-Atl.
Rest. Corp., 809 F. App’x 122, 127 (4th Cir. 2020) (unpublished) (citing South Atl.
Ltd. P’ship of Tenn., L.P. v. Riese, 284 F.3d 518, 530 n.15 (4th Cir. 2002)). Under
Virginia law, the elements of a breach of contract claim are: “(1) a legally
enforceable obligation of a defendant to a plaintiff; (2) the defendant’s violation or
breach of that obligation; and (3) injury or damage to the plaintiff caused by the
breach of obligation.” Navar, Inc. v. Fed. Bus. Council, 784 S.E.2d 296, 299 (Va.
2016) (internal quotation marks and citations omitted).

Because I have granted summary judgment as to Kelly’s ADA claims, which
provide the basis for federal question jurisdiction, I could decline to exercise
supplemental jurisdiction over the state law breach of contract claim. 28 U.S.C.
§ 1367(c)(3). In the interest of judicial efficiency, however, I will retain supplemental
jurisdiction over Count V.
4

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“A contract will be enforced if its obligations are reasonably certain.” R.K.
Chevrolet, Inc. v. Hayden, 480 S.E.2d 477, 480 (Va. 1997). “Even if some terms
of a contract are uncertain, it may be read in the light of the surrounding
circumstances, and, if from such reading, its meaning may be determined, the
contract will be enforced.” Id. “Further, when the entire agreement has not been
reduced to writing, parol evidence is admissible, not to vary or contradict the terms
of the written instrument, but to show other facts agreed upon in order to establish
the parties’ entire contract.” Id.
“It is elementary that mutuality of assent — the meeting of the minds of the
parties — is an essential element of all contracts.” Phillips v. Mazyck, 643 S.E.2d
172, 175 (Va. 2007) (citations omitted). “Until the parties have a distinct intention
common to both and without doubt or difference, there is a lack of mutual assent
and, therefore, no contract.” Id. (citations omitted).
The first question with respect to Kelly’s breach of contract claim is whether
Kelly and the Town ever executed a separate written employment contract aside
from the summary set forth in the September 2006 meeting minutes. The evidence
on that point is clearly in dispute. That factual issue alone is sufficient to avoid
summary judgment.
The Town focuses on the “not successful” phrase in the meeting minutes. It
argues that Kelly’s service as Town Manager was successful given that he served
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in that role for twelve years. It further argues that Kelly’s interpretation of the
severance term — that he is entitled to a severance payment regardless of why his
employment ends — renders the phrase “not successful” meaningless. The Town
also contends that there was no meeting of the minds as to the meaning of the
phrase “not successful,” and the severance provision is therefore void.
But if there was in fact a separate, formal employment contract executed by
the parties, then the meeting minutes are merely parol evidence as to the meaning
of that contract.

The severance provision in the draft employment contract

produced by Kelly is unambiguous — neither party contends otherwise. When a
contract is unambiguous, we do not look to parol evidence to determine its
meaning. Robinson-Huntley v. George Washington Carver Mut. Homes Ass’n, 756
S.E.2d 415, 429 (Va. 2014).
Kelly has produced evidence of a separate signed employment contract and
what it said. The evidence consists of (1) his own testimony that Lois Humphreys
signed the contract and intended to place it in the vault, (2) an unsigned draft
contract printed on paper that he routinely used around the time the contract would
have been executed, but that he no longer uses, and (3) the meeting minutes, which
plainly indicate that the parties agreed to a severance term. This is enough to send
his breach of contract claim to a jury. While the best evidence rule generally
requires the production of the original writing itself rather than other evidence
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about its contents, Federal Rule of Evidence 1004(a) provides an exception where
“all the originals are lost or destroyed, and not by the proponent acting in bad
faith.” There is no indication that Kelly lost or destroyed the original employment
contract in bad faith. “As with all other issues of fact, the trier of fact determines
whether the asserted original ever existed and whether the other evidence
accurately reflects the original’s contents.” Klopman v. Zurich Am. Ins. Co. of Ill.,
233 F. App’x 256, 258 (4th Cir. 2007) (unpublished).
To the extent Kelly relies on the meeting minutes, he does so as a fallback
position. His stance is that there was a formal written employment contract, but
should the jury disagree and find that there was no formal contract, then the
minutes serve as a memorialization of the parties’ agreement. Thus, the court will
only need to discern the meaning of the phrase “not successful” if the finder of fact
finds that the purported written employment contract signed by Lois Humphreys
never existed.
The Town argues that the Town Council which voted on Kelly’s terms of
employment in 2006 did not have the authority to bind a future Town Council to a
severance obligation. The Town points to Dillon’s Rule, which provides that a
town council possesses “only those powers that are (1) expressly granted by the
General Assembly, (2) necessarily or fairly implied from those express powers,
and (3) essential to the declared objects and purposes of the municipality.”
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Dumfries-Triangle Rescue Squad, Inc. v. Bd. of Cnty. Supervisors of Prince
William Cnty., 849 S.E.2d 117, 120 (Va. 2020) (internal quotation marks and
citations omitted). The General Assembly has granted local governing bodies all
powers
pertinent to the conduct of the affairs and functions of the municipal
government, the exercise of which is not expressly prohibited by the
Constitution and the general laws of the Commonwealth, and which
are necessary or desirable to secure and promote the general welfare
of the inhabitants of the municipality and the safety, health, peace,
good order, comfort, convenience, morals, trade, commerce and
industry of the municipality and the inhabitants thereof, and the
enumeration of specific powers shall not be construed or held to be
exclusive or as a limitation upon any general grant of power, but shall
be construed and held to be in addition to any general grant of power.
Va. Code Ann. § 15.2-1102. The General Assembly has specifically given local
government entities the power to appoint officers and hire employees so long as
that appointment is without a definite term. Va. Code Ann. § 15.2-1503. The
Abingdon Town Charter also expressly provides for the appointment of a town
manager.

Town of Abingdon Charter § 4.2, available at https://law.lis.

virginia.gov/charters/abingdon/ (last visited Sept. 3, 2021).
The Town asserts that the foregoing statutory grants of authority necessarily
and fairly imply the authority to pay and provide benefits for town managers. It
contends, however, that “the authority of one council to bind the Town and a future
council to severance payments for appointees and employees who leave the

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Town’s employ cannot be said to be necessarily or fairly implied” from these
express grants of authority. Mem. Supp. Mot. Summ. J. 25–26, ECF No. 63.
The Town cites ACA Financial Guaranty Corp. v. City of Buena Vista, 917
F.3d 206 (4th Cir. 2019), for the proposition that “agreements subject to future
appropriations by future governing bodies are not enforceable.” Mem. Supp. Mot.
Summ. J. 26, ECF No. 63. The ACA case is readily distinguishable. It involved
ongoing rent payments, and the agreement at issue specifically stated that the
payments were subject to future annual appropriations decisions. The case makes
no mention of Dillon’s Rule.
I find that the legislative grant of authority to appoint officers such as town
managers necessarily and fairly implies the power to compensate them for their
work. Compensation packages routinely include not just basic salaries but health
insurance, retirement plans, and various other benefits, including severance
packages. The asserted severance agreement between the Town and Kelly does
not violate Dillon’s Rule. I will deny the Motion for Summary Judgment as to
Kelly’s breach of contract claim.5

The plaintiff has filed a motion seeking to exclude the defendant’s disclosed
vocational and rehabilitation expert witness. Because it is not apparent that this expert’s
testimony would be relevant to the breach of contract claim, I will deny this motion as
moot, on the assumption that this expert will not testify.
5

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III.
For the foregoing reasons, it is ORDERED that the Motion for Summary
Judgment, ECF No. 62, is GRANTED IN PART and DENIED IN PART. The
Motion is granted as to Counts II and III. The Motion is denied as to Count V,
which will procced to jury trial. It is further ORDERED that Plaintiff’s Motion to
Exclude Defendant’ Expert Witness, ECF No. 64, is DENIED as moot.

ENTER: September 7, 2021
/s/ JAMES P. JONES
Senior United States District Judge

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