Ghayyada v. Rector and Visitors of the University of Virginia

Filing 23

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 9/12/2011. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CASE NO. 3:11-cv-00037

AMER O. GHAYYADA
Plaintiff,
v.

MEMORANDUM OPINION

RECTOR AND VISITORS OF THE UNIVERSITY OF
VIRGINIA
Defendant.

JUDGE NORMAN K. MOON

This matter is before the Court upon Defendant’s Motion to Dismiss Plaintiff’s
Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(1) and/or 12(b)(6) (“Motion to
Dismiss”). (docket no. 6). Plaintiff’s opposition takes the form of a “Motion to Deny
Defendant[’s] Motion to Dismiss.” (docket no. 16). The Court conducted a hearing on these
motions on August 29, 2011 in Charlottesville, VA. I have fully considered the arguments and
authorities presented at the hearing, along with those set forth in both parties’ filings. For the
reasons stated below, I will grant Defendant’s Motion to Dismiss in part, and deny it in part.
I. BACKGROUND
A. Plaintiff’s Claims for Relief
Plaintiff Amer O. Ghayyada (“Ghayyada”), pro se, brought suit against his former
employer, Defendant, the Rector and Visitors of the University of Virginia (the “University”).
According to his Complaint, Ghayyada seeks to recover damages pursuant to 42 U.S.C. § 1983;
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); the “A.D. Act
as amended,” presumably the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.
(“ADA”); the First Amendment to the United States Constitution; the “Pay Act,” presumably the
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Equal Pay Act of 1963, 29 U.S.C. § 206(d) (“EPA”); and the “Compensation Act,” presumably
the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). (See docket no. 3).
B. Factual Background
Ghayyada worked as a Registered Nurse Clinician for the University of Virginia Health
System1 for roughly six years, until he was terminated on April 22, 2010 (Compl. ¶ 3(I)). On
April 20, 2010, Ed Meyers (“Meyers”), who is identified as the “former Emergency Interim
Director,” and Deborah Franklin (“Franklin”), who is identified as an “advisory council
member,” called Ghayyada a “terrorist[] and other derogatory remarks . . . .” Compl. ¶ 3(I).
Earlier, in June of 2008, Meyers allegedly disciplined Ghayyada for remarking that “God will
punish gay marriage.” Compl. ¶ 3(V). Ghayyada complained about this treatment to Emergency
Department Director Alisa Slimnick (“Slimnick”), who Ghayyada claims then retaliated against
him by terminating him on April 22, 2010. Compl. ¶ 3(I).
After Ghayyada’s termination, an administrator, Mr. Croonquest (“Croonquest”),
allegedly told Ghayyada that he was terminated because of “bad timing,” specifically that “there
was a murder at college and [an] attempted bombing in NY.” Compl. ¶ 3(III). These references
apparently relate to the May 3, 2010 murder of University of Virginia undergraduate Yeardley
Love, and the attempted May 1, 2010 bombing of Times Square in New York City, both of
which occurred after Ghayyada’s termination.
Ghayyada further alleges that Slimnick and Ms. Hinger (“Hinger”), one of Ghayyada’s
nursing colleagues, defamed Ghayyada by falsely writing that he “sent messages for 6 months,
with an escalation over 10 days, and that [he] was accused of harassment in a previous job.”
Compl. ¶ 3(IV). Although it is not clear from the Complaint, the alleged defamatory document

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The Complaint refers to the “University of Virginia Medical Center Emergency Department.”

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is evidently a “Personnel Action Form,” setting forth the University’s reasons for his
termination, as follows:
[Ghayyada] sent multiple inappropriate messages to a female nurse in the
department on days when they worked together. This has been occurring off and
on over the last 6 months but over the last 10 days has escalated from comments
such as “you’re sweet” and “you’re cute” to “I am attracted to you and don’t
know what to do about it” and “In heaven we shall hang out.” This is when the
female nurse became frightened and notified management. [Ghayyada]’s wife
then contacted the female nurse, stating that [Ghayyada] told her they were
having an affair with times and places they met together outside work, none of
which is true. The female nurse is feeling threatened and unsafe at work. In June
of 2008, [Ghayyada] was again counseled for making inappropriate comments
regarding sexual orientation.
Def.’s Br. Ex. A, at 2.2 Ghayyada also alleges that he was not paid as well as a less experienced
female colleague, and that he was improperly denied payment for overtime. Compl. ¶ 3(VI–
VII).
C. Procedural History
After Ghayyada’s termination, he filed a grievance under the state grievance statute, Va.
Code § 2.2–3000 et seq., claiming that his termination was based on his “Islamic religion, sex,
and place of origin, which is the Middle East.” Def.’s Br. Ex. C, at 6.3 Ghayyada’s case
ultimately came before Hearing Officer William S. Davidson, who decided that Ghayyada’s
termination was justified, and unrelated to his protected characteristics. Def.’s Br. Ex. A.

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I am not permitted, generally, to look outside a plaintiff’s complaint when considering a motion to dismiss
pursuant to Rule 12(b)(6); however, I find it appropriate to quote an Exhibit attached to Defendant’s Brief because
Plaintiff expressly alleges written defamatory statements in his Complaint. Defendant has merely provided that
statement in full. “[W]hen a plaintiff fails to introduce a pertinent document as part of his complaint, the defendant
may attach the document to a motion to dismiss the complaint and the Court may consider the same without
converting the motion to one for summary judgment.” Gasner v. Cnty. of Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va.
1995) (collecting cases). In other words, “the scope of the Court’s consideration [may] extend[] well beyond the
four corners of the . . . Complaint.” Id.
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I again reference Exhibits provided by Defendant. While, ordinarily, I “may not consider any documents that are
outside of the complaint, or not expressly incorporated therein[,] . . . there are exceptions to [that] rule . . . .
Specifically, a court may consider official public records, documents central to plaintiff’s claim, and documents
sufficiently referred to in the complaint so long as the authenticity of these documents is not disputed.” Witthohn v.
Fed. Ins. Co., 164 Fed. App’x. 395, 395 (4th Cir. 2006) (per curiam). Plaintiff does not dispute the authenticity of
these records, which I deem central to the complaint, and I see no reason why they should not be judicially noticed.

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Ghayyada then appealed the decision to the Director of the Virginia Department of Employment
Dispute Resolution (“EDR”), arguing that the hearing officer failed to consider Ghayyada’s
proffered evidence of discrimination. Def.’s Br. Ex. C. That appeal failed. Def.’s Br. Ex. D.
Upon appeal to the Circuit Court for the City of Charlottesville, Ghayyada alleged that
the administrative proceedings failed to accord him due process because the word “harassment”
was not included in the termination notice listing the charges against him. On January 28, 2011,
the Hon. Edward L. Hogshire rejected that argument, and affirmed the decision of the hearing
officer. Def.’s Br. Ex. E. Finally, on March 18, 2011, the Virginia Court of Appeals dismissed
Ghayyada’s appeal of Judge Hogshire’s decision as untimely. Def.’s Br. Ex. F.
II. APPLICABLE LAW
Defendant’s Motion to Dismiss presents a number of theories of relief: (a) res judicata as
to all claims; (b) failure to exhaust administrative remedies as to the ADA claim; (c) failure to
plead sufficient facts as to the Title VII claims; (d) Eleventh Amendment immunity as to the
FLSA claim; (e) statute of limitations and sovereign immunity as to the defamation claim; (f)
statute of limitations as to the First Amendment claim; and (g) failure to state a claim as to the
EPA claim.4 Each theory arises under either Federal Rule of Civil Procedure 12(b)(1) or
12(b)(6).
A. Federal Rule of Civil Procedure 12(b)(1)
When considering a challenge to the factual basis for subject matter jurisdiction, “the
burden of proving subject matter jurisdiction is on the plaintiff.” Richmond, Fredericksburg &
Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). In deciding whether
jurisdiction exists, the court “may consider evidence outside the pleadings without converting the

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At the August 29 hearing in Charlottesville, Defendant additionally argued that even if Plaintiff is held to have
stated a plausible EPA claim, that claim is barred by the applicable statute of limitations.

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proceeding into one for summary judgment.” Id. When it comes to Rule 12(b)(1) dismissal,
“[t]he moving party should prevail only if the material jurisdictional facts are not in dispute and
the moving party is entitled to prevail as a matter of law.” Id. (citing Trentacosta v. Frontier
Pac. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987)).
B. Federal Rule of Civil Procedure 12(b)(6)
In considering a motion to dismiss pursuant to Rule 12(b)(6), a court must “accept[] all
well-pled facts as true and construe[] these facts in the light most favorable to the plaintiff in
weighing the legal sufficiency of the complaint.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com,
Inc., 591 F.3d 250, 255 (4th Cir. 2009). A motion to dismiss tests the legal sufficiency of a
plaintiff’s complaint; “it does not resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009).
III. DISCUSSION
A. Res Judicata Considerations
Defendant, in its Memorandum of Law in Support of its Motion to Dismiss, argues that
all of Plaintiff’s claims are barred by the doctrine of res judicata because Plaintiff’s claims either
have been, or could have been, litigated in previous actions. Defendant is partially convincing.
At the outset, I note that although a motion to dismiss does not involve the resolution of factual
disputes or defenses, “a motion to dismiss is the proper vehicle by which a defendant may assert
that the plaintiff’s claim is res judicata.” Andrews v. Daw, 201 F.3d 521, 524 (4th Cir. 2000).

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Under the Full Faith and Credit Act, state judicial decisions “shall have the same full
faith and credit in every court within the United States . . . as they have by law or usage in the
courts of such State . . . from which they are taken.” 28 U.S.C. § 1738. Accordingly, federal
courts must “give the same preclusive effect to state court judgments that those judgments would
be given in the courts of the State from which the judgments emerged.” Baker v. GMC, 522 U.S.
222, 246 (1998) (Kennedy, J., concurring) (quoting Kremer v. Chem. Constr. Corp., 456 U.S.
461, 466 (1982)).
In Virginia, Supreme Court Rule 1:6, “Res Judicata Claim Preclusion,” provides, in
relevant part:
A party whose claim for relief arising from identified conduct, a transaction, or an
occurrence, is decided on the merits by a final judgment, shall be forever barred
from prosecuting any second or subsequent civil action against the same opposing
party or parties on any claim or cause of action that arises from that same conduct,
transaction or occurrence, whether or not the legal theory or rights asserted in the
second or subsequent action were raised in the prior lawsuit, and regardless of the
legal elements or the evidence upon which any claims in the prior proceedings
depended, or the particular remedies sought.
Accordingly, the rule “operates to bar any claim that could have been brought in conjunction
with a prior claim, where the claim sought to be barred arose out of the same conduct,
transaction, or occurrence as the previously litigated claim.” Martin-Bangura v. Commonwealth
Dep’t of Mental Health, 640 F. Supp. 2d 729, 738 (E.D. Va. 2009). 5
The elements of the preclusion rule are satisfied in relation to Plaintiff’s Title VII and ADA
claims, and would therefore bar those claims if Plaintiff attempted to litigate them in state court. The
earlier proceeding involved exactly the same two parties: Ghayyada and the University.
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In Brooks v. Arthur, 626 F.3d 194 (4th Cir. 2010), the United States Court of Appeals for the Fourth Circuit held
that the “governing authority” on res judicata in Virginia is State Water Control Bd. v. Smithfield Foods, Inc., 542
S.E.2d 766, 769 (2001) (“[t]o establish the defense of res judicata, the proponent of the doctrine must establish
identity of the remedies sought, identity of the parties, and identity of the quality of the persons for or against whom
the claim is made.”). However, in “civil actions commenced after July 1, 2006,” Supreme Court Rule 1:6, not
Smithfield Foods, applies. See Gunter v. Martin, 708 S.E.2d 875, 876 (Va. 2011). Notably, the Smithfield Foods
rule requires an identity of the remedies sought, whereas Rule 1:6 explicitly disavows any such requirement.

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Furthermore, Plaintiff’s Title VII and ADA claims arose out of the same transaction at issue in the
earlier proceeding: Ghayyada’s termination. It is clear that Plaintiff could have raised similar claims
in that proceeding. See Va. Code § 2.2–3004A (providing for a hearing concerning “(iii)
discrimination on the basis of race, color, religion, political affiliation, age, disability, national origin
or sex; . . .” and “(vi) retaliation for exercising any right otherwise protected by law.”). Under Rule
1:6, it is immaterial whether Ghayyada raised the same legal theory, or sought similar relief in the
earlier action. Finally, under state law, the Circuit Court’s decision is a final judgment. As Judge

Hogshire recognized, a hearing officer’s decision is “final and binding if consistent with law and
policy.” Va. Code. § 2.2–3005.1(C)(iii). On appeal to the Circuit Court, the judge may only
overturn a hearing officer’s decision if it is “contradictory to law . . . .” Va. Code § 2.2–3006(B).
Because Ghayyada failed to meet his burden, the Circuit Court order stands as a judicial
determination6 that the hearing officer’s decision was “final and binding.” See Def.’s Br. Ex. E,
at ¶6. Therefore, Plaintiff’s Title VII and ADA claims are barred by the doctrine of res judicata,
and are dismissed pursuant to Rule 12(b)(6).
On the other hand, Plaintiff’s EPA and FLSA claims do not appear to arise out of the
same transaction or occurrence that was the subject of the prior adjudication. Nor has Defendant
presented any argument that those claims, or Plaintiff’s defamation claim, could have been
adjudicated before the hearing officer. Accordingly, the Circuit Court’s decision does not have
preclusive effects on those claims.

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The Full Faith and Credit Act, by its terms, applies only to “judicial proceedings.” 28 U.S.C. § 1738.
Accordingly, it “requires application of state preclusion law only where . . . the state administrative decision has
been judicially reviewed[.]” See Davenport v. N.C. Dept. of Transp., 3 F.3d 89, 93 n.4 (4th Cir. 1993). “In contrast,
unreviewed administrative determinations lack preclusive effect in a subsequent Title VII action . . . .” Rao v. Cnty.
of Fairfax, 108 F.3d 42, 45 (4th Cir. 1997).

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B. Subject Matter Jurisdiction over Plaintiff’s ADA Claim
In the alternative, University correctly argues that this Court lacks subject matter
jurisdiction over Plaintiff’s ADA claim, and that it must be dismissed pursuant to Rule 12(b)(1).
The party seeking to avail itself of a court’s jurisdiction bears the burden of establishing that
subject matter jurisdiction is proper. Allen v. Coll. of William & Mary, 245 F. Supp. 2d 777, 782
(E.D. Va. 2003). Under the ADA, as under Title VII, a plaintiff must exhaust administrative
remedies by filing a discrimination claim with the Equal Employment Opportunity Commission
(“EEOC”). 42 U.S.C. § 12117(a) (incorporating the procedures set forth in Title VII).
“Importantly, a failure by the plaintiff to exhaust administrative remedies . . . deprives the federal
courts of subject matter jurisdiction over the claim.” Jones v. Calvert Grp., Ltd., 551 F.3d 297,
301 (4th Cir. 2009); Bess v. Cnty. of Cumberland, No. 5:10-cv-453, 2011 WL 3055289, at *5
(E.D.N.C. July 25, 2011).
In addition, only those discrimination claims specifically stated in the charge or developed
during reasonable investigation of the original administrative complaint may be maintained in a
subsequent lawsuit. Jones, 551 F.3d at 300. Plaintiff’s EEOC Notice of Charge of Discrimination

does not refer to any claims based on disability. See Def.’s Br. Ex. G.7 Therefore, this Court
lacks jurisdiction over Plaintiff’s ADA claim, and it must be dismissed pursuant to Rule 12(b)(1).8

C. Plaintiff’s Fair Labor Standards Act Claim
Because the Commonwealth has not consented to suit for claims arising under the FLSA,
this Court lacks jurisdiction over any such claim, and Plaintiff’s FLSA claim is dismissed with
prejudice, pursuant to the doctrine of state sovereign immunity. “The judicial power of the
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Again, upon review of a motion to dismiss for lack of subject matter jurisdiction, the court may consider evidence
outside of the pleadings. See Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th
Cir. 1991).
8
Furthermore, nothing in the Complaint or any of the filings even suggests that Ghayyada is disabled. The ADA
claim may therefore also be dismissed pursuant to Rule 12(b)(6).

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United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment, then, has
been held to “confirm the structural understanding that States entered the Union with their
sovereign immunity intact, unlimited by Article III’s jurisdictional grant [to federal courts].” Va.
Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1637 (2011).
In Alden v. Maine, 527 U.S. 706 (1999), the Supreme Court of the United States
determined that the sovereign immunity of the states, as confirmed by the Eleventh Amendment,
bars employees from bringing FLSA claims against nonconsenting states. In Commonwealth v.
Luzik, 524 S.E.2d 871, 878 (Va. 2000), the Virginia Supreme Court determined that the
Commonwealth has not consented to a waiver of its sovereign immunity with respect to FLSA
claims. Furthermore, the University is an instrumentality of the state, and therefore immune
from suit under FLSA. McNamee v. Rector and Visitors of the Univ. of Va., No. 3:06-cv-43,
2006 WL 3053264, at *3 (W.D. Va. Oct. 26, 2006); Tigrett v. Rector & Visitors of the Univ. of
Va., 97 F. Supp. 2d 752, 756 (W.D. Va. 2000) (collecting cases).
Because an “Eleventh Amendment defense sufficiently partakes of the nature of a
jurisdictional bar,” Edelman v. Jordan, 415 U.S. 651, 678 (1974), Plaintiff’s FLSA claim is
dismissed with prejudice, pursuant to Rule 12(b)(1).
D. Plaintiff’s Defamation Claim
Because the University, as an arm of the state, is entitled to sovereign immunity from
defamation claims, and because Plaintiff’s defamation claim is time barred, Plaintiff’s
defamation claim will be dismissed with prejudice. Although the Virginia Tort Claims Act
waives sovereign immunity for certain claims against “the Commonwealth,” Va. Code § 8.01–

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195.4, it lacks an “express provision limiting the immunity of the Commonwealth’s agencies . . .
.” Rector and Visitors of the Univ. of Va. v. Carter, 591 S.E.2d 76, 78 (Va. 2004) (emphasis
added). The Supreme Court of Virginia has therefore determined that “as an agency of the
Commonwealth, UVA is entitled to sovereign immunity under the common law absent an
express constitutional or statutory provision to the contrary.” Id.
In addition, Plaintiff failed to bring his defamation claim within the applicable statute of
limitations. Under Virginia law, “[e]very action for injury resulting from libel, slander, insulting
words or defamation shall be brought within one year after the cause of action accrues.” Va.
Code § 8.01–247.1. Plaintiff filed the instant lawsuit on May 23, 2011, alleging that he was
defamed on April 22, 2010, more than thirteen months earlier. Accordingly, even if the doctrine
of sovereign immunity did not protect the University, Plaintiff’s defamation claim is time barred,
and must be dismissed pursuant to Rule 12(b)(1).
E. Plaintiff’s First Amendment Claim
Plaintiff’s First Amendment claim, which he brings pursuant to 42 U.S.C. § 1983, is also
time barred. Plaintiff alleges that the University violated his First Amendment rights by
disciplining him in June 2008, after he had said “God will punish gay marriage.”
In considering a § 1983 claim, a court must apply the state’s general or residual statute of
limitations for personal injury actions. Owens v. Okure, 488 U.S. 235, 250 (1989). In Virginia,
every action for personal injuries, and therefore § 1983 claims, “shall be brought within two
years after the cause of action accrues.” Va. Code § 8.01–243(A); Billups v. Carter, 604 S.E.2d
414, 419 (Va. 2004). Because Plaintiff filed the instant lawsuit on May 23, 2011, nearly three
years after his cause of action is alleged to have accrued, his § 1983 claim is time barred, and
must be dismissed with prejudice, pursuant to Rule 12(b)(1).

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F. Plaintiff’s Equal Pay Act Claim
1. Failure to State a Claim
Defendant’s argument that Plaintiff has failed to establish a prima facie case under the
Equal Pay Act, and his EPA claim must therefore be dismissed, is unconvincing. In order to
establish a prima facie case for a violation of the EPA, a plaintiff must plead sufficient facts to
demonstrate “(1) that [his] employer has paid different wages to employees of opposite sexes; (2)
that said employees hold jobs that require equal skill, effort and responsibility; and (3) that such
jobs are performed under similar working conditions.” Gustin v. W. Va. Univ., 63 Fed. App’x.
695, 698 (4th Cir. 2003) (unpublished opinion) (citing Brinkley v. Harbour Recreation Club, 180
F.3d 598, 613 (4th Cir. 1999). Ghayyada claims that he “discovered after July 23, 2010 in my
[personnel] file that I was discriminated against with pay based on sex. I had more experience
than my female counterpart, but [was] paid less by $.62 an hour.”
The University argues that Ghayyada fails to state a claim because he has set forth no
facts demonstrating that his female coworker held a position requiring “equal skill, effort and
responsibility” and that the positions were performed “under similar working conditions.” I am
not so certain. The term “counterpart,” as used in the Complaint, connotes one who is similarly
situated. Given the mandate to construe this civil rights Complaint liberally, it could be inferred
that Ghayyada’s “counterpart” is one who performs essentially the same job functions, under
essentially the same conditions. Ghayyada has not, therefore, failed to plead sufficient facts to
establish a prima facie case of an EPA violation.
2. Statute of Limitations
At the Charlottesville hearing on August 29, 2011, the University argued that even if
Ghayyada has alleged facts sufficient to demonstrate that his claim for relief is plausible on its

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face, his EPA claim is nonetheless time barred. I find to the contrary. A cause of action under
the EPA is “forever barred unless commenced within two years after the cause of action accrued,
except that a cause of action arising out of a willful violation may be commenced within three
years after the cause of action accrued . . . .” 29 U.S.C. § 255(a).
When it comes to the cause of action’s accrual, “[t]he continuing discrimination theory
applies to . . . Equal Pay Act . . . claims.” Nealon v. Stone, 958 F.2d 584, 590 n.4 (4th Cir.
1992). Although a plaintiff is limited only to those damages that accrued during the two- or
three-year period prior to filing suit (depending on whether the violation was willful or not), the
continuing violation theory essentially treats each paycheck as a new violation of the EPA. Id. at
591 n.5. The statute of limitations period begins to run, then, upon elimination of the violation
or the termination of a plaintiff’s employment. Id. at 592.
Relying on a “Request for Internal Alignment Review” dated March 7, 2005 (“Internal
Review”), Plaintiff’s Complaint asserts that he was being paid less than a similarly situated
female colleague by sixty-two cents an hour. The Internal Review, signed by Kim M. Ellis and
Ed Meyers, recommends that Plaintiff’s hourly wage be increased, commensurate with his
experience, and in light of the wages that his female colleagues were earning at the time.
At the August 29 hearing, Plaintiff claimed that he discovered the Internal Review as
recently as July 23, 2010 in his personnel file. (See also Pl.’s Resp. to Def.’s Mot. to Dismiss,
Ex. B). The date on which Plaintiff discovered the document, however, is of little import for
purposes of determining when the statute of limitations commenced running. Nevertheless, it
remains unclear whether the Internal Review produced an actual pay increase for Ghayyada,
bringing his wages in line with his female colleagues, or whether the document merely
represented a recommendation, on which the University might have taken no action. The

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Internal Review only shows, on its face, that Ghayyada at one time earned less than other—
female—staff members, two of whom had less “directly related experience.”
Plaintiff’s Complaint alleges a pay discrepancy over six years, which seemingly
represents his entire tenure working for the University of Virginia Health System. Taking that
statement as true, as I must, Plaintiff’s EPA claim is not necessarily barred by the applicable
statute of limitations. On the contrary, if a violative pay discrepancy existed for the duration of
Plaintiff’s time with the University of Virginia Health System, then, under the continuing
violations theory, the statute of limitations would not have begun to run until Plaintiff’s April 22,
2010 termination. Because Plaintiff’s allegations are not necessarily barred by the applicable
statute of limitations, and because, as stated above, Plaintiff has alleged facts sufficient to make
out a claim for an EPA violation, his EPA claim survives Defendant’s Motion to Dismiss.
IV. CONCLUSION
In summary: (a) Plaintiff’s ADA and Title VII claims are barred by the doctrine of res
judicata; (b) additionally, the court lacks jurisdiction over the ADA claim because Plaintiff has
failed to exhaust administrative remedies, as required by statute; (c) Plaintiff’s FLSA claim is
barred by the doctrine of sovereign immunity; (d) Plaintiff’s defamation claim is time barred,
and Defendant is entitled to sovereign immunity against such a claim; (e) Plaintiff’s § 1983
claim alleging violations of his First Amendment rights is also time barred; however, (f)
Plaintiff’s EPA claim survives Defendant’s Motion to Dismiss.
For the reasons stated above, it is hereby ORDERED that Defendant’s Motion to Dismiss
(docket no. 6) is GRANTED in part and DENIED in part.
The Clerk of the court is directed to send a copy of this memorandum opinion and
accompanying order to all counsel of record.

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12th
Entered this ______ day of September, 2011.

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