Branscome v. Virginia Department of Environmental Quality Commonwealth of Virginia et al

Filing 18

MEMORANDUM OPINION. Signed by District Judge Glen E. Conrad on 10/30/2017. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
CHRISTOPHER BRANSCOME,
Plaintiff,
v.
VIRGINIA DEPARTMENT OF
ENVIRONMENTAL QUALITY,
Defendant.

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Civil Action No. 7:17CV00359
MEMORANDUM OPINION
By: Hon. Glen E. Conrad
United States District Judge

Christopher Branscome filed this action against his former employer, the Virginia
Department of Environmental Quality (“DEQ”), asserting claims of discrimination and retaliation
in violation of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701 et seq.; the
Virginians with Disabilities Act (“VDA”), Va. Code § 51.5-1 et seq.; and Virginia common law.
The case is presently before the court on DEQ’s partial motion to dismiss. For the reasons that
follow, the court will grant the motion.
Background
The following facts, taken from the plaintiff’s complaint, are accepted as true for purposes
of the defendant’s motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen
ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations
contained in the complaint.”).
In December of 2014, Branscome was hired to work as a Solid Waste Compliance
Inspector at DEQ’s Blue Ridge Regional Office in Roanoke, Virginia.
Branscome was supervised by Aziz Farahmand and Rebecca Wright.

In that position,

Branscome claims that he is disabled as a result of Attention Deficit Hyperactivity
Disorder (“ADHD”), which affects his ability to maintain focus and concentration, organize tasks,
communicate, and engage in critical and/or analytical thinking.

After requesting

accommodations for his disability, Branscome met with Farahmand and Wright on February 25,
2016. During the meeting, Branscome advised the supervisors of his disability and requested
more specific direction on goals and objectives applicable to his position. Branscome summed up
his request for accommodation by asking Farahmand and Wright to “[p]ut it in black and white”
and “[t]ell [him] what to do.” Compl. ¶ 15, Docket No. 1-1. Branscome claims that neither
Farahmand nor Wright “offer[ed] any sort of accommodation” or “engage[d] in the interactive
process by which a correct accommodation could be determined.” Id. ¶ 19.
The following month, Branscome contacted Farahmand via email and requested
permission to travel to a worksite directly from his residence instead of stopping by the Roanoke
office first. Although similar requests from other employees had been granted, Farahmand
denied Branscome’s request and directed him to proceed to the Roanoke office prior to heading to
the worksite.
In late spring of 2016, after being reprimanded on several occasions for the manner in
which he was filling out timesheets, Branscome asked Farahmand for a copy of a completed
timesheet to use as an example. Branscome alleges that Farahmand “denied this very reasonable
request for an accommodation.” Id. ¶ 25.
In May of 2016, Branscome asked Farahmand whether he should enroll in a technical
writing course to improve his writing skills. Farahmand advised Branscome that it was not
necessary for Branscome to enroll in any class.

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Branscome alleges that he was repeatedly accused of performing poorly at work, even
though his work performance met the legitimate needs of his employer. Alternatively, to the
extent his performance did not meet expectations, Branscome claims that he could have met the
legitimate expectations of his employer if he had been afforded reasonable accommodations for
his disability. Branscome alleges that his employment was wrongfully terminated on June 21,
2017.
Procedural History
On June 16, 2017, Branscome filed the instant action against DEQ in the Circuit Court for
the City of Roanoke.

In Count I, Branscome claims that he was subjected to disability

discrimination in violation of the Rehabilitation Act. In Count II, Branscome alleges that he was
subjected to retaliation in violation of the Rehabilitation Act. In Count III, Branscome claims that
DEQ violated the Rehabilitation Act by failing to accommodate his disability. In Count IV,
Branscome alleges that the DEQ wrongfully terminated him in violation of public policies
expressed in the VDA. In Counts V through VII, Branscome asserts claims of discrimination,
retaliation, and failure to accommodate under the VDA.
After removing the case to this court on the basis of federal question jurisdiction, DEQ
filed the instant motion for partial dismissal. DEQ seeks dismissal of Count III on the basis that
the claims of failure to accommodate are barred by the applicable one-year period of limitation.
DEQ seeks dismissal of Count IV on the basis that the Virginia General Assembly abrogated the
common law such that no plaintiff may bring a claim of wrongful discharge based on a public
policy that is also reflected in the Virginia Human Rights Act, Va. Code § 2.2-3900 et seq.
Finally, DEQ has moved to dismiss the VDA claims asserted in Counts V through VII on the basis
that the department is covered by the Rehabilitation Act.

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In response to the motion to dismiss, Branscome acknowledges that the VDA claims are
subject to dismissal. See Va. Code § 51.5-41(F) (“This section shall not apply to employers
covered by the federal Rehabilitation Act of 1973.”). However, Branscome opposes the dismissal
of Counts III and IV.
Standard of Review
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.”
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Accordingly, the court’s
evaluation is “generally limited to a review of the allegations of the complaint itself.” Goines v.
Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). “While a complaint attacked by a
Rule 12(b)(6) motion does not need detailed factual allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (citation and internal quotation marks omitted). To survive dismissal for failure
to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim for relief that is plausible on its face,’” meaning that it must “plead[] 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) (quoting Twombly, 550 U.S. at 570).
Discussion
I.

Failure to Accommodate

DEQ seeks dismissal of Count III on the ground that Branscome’s claims of failure to
accommodate are barred by the applicable one-year period of limitation. In response, Branscome
argues that DEQ never fulfilled its responsibility to engage in an interactive process to determine

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an appropriate accommodation for his disability, and that its failure to do so was an ongoing
violation that renders his claims timely.1
The Rehabilitation Act prohibits agencies from discriminating against a qualified
individual with a disability “solely by reason of her or his disability.” 29 U.S.C. § 794(a). “To
establish a claim under the Rehabilitation Act for a failure to accommodate, a plaintiff must show
(1) he has a disability; (2) his employer knew of the disability; (3) with reasonable
accommodations he is otherwise qualified to perform the essential functions of the employment
position in question; and (4) his employer refused to make such reasonable accommodations.”
Lewis v. Gibson, 621 F. App’x 163, 164 (4th Cir. 2015) (citing Wilson v. Dollar Gen. Corp., 717
F.3d 337, 345 (4th Cir. 2013) (listing elements of a failure to accommodate claim brought pursuant
to the Americans with Disabilities Act (“ADA”)); see also Doe v. Univ. of Md. Med. Sys. Corp.,
50 F.3d 1261, 1264 n.9 (4th Cir. 1995) (explaining that the same analysis is applied to
discrimination claims under the ADA and the Rehabilitation Act).
The Rehabilitation Act does not include an express statute of limitations. Accordingly,
courts look to the most appropriate statute of limitations under state law. Wolsky v. Medical
College of Hampton Rds., 1 F.3d 222, 224 (4th Cir. 1993). In Wolsky, the United States Court of
Appeals for the Fourth Circuit held that the VDA is the most analogous statute in Virginia, and that
its one-year period of limitation applies to claims filed under the Rehabilitation Act. Id. at 225.
The limitations period for a Rehabilitation Act claim begins to run “when the plaintiff
‘knows or has reason to know of the injury which is the basis of the action.’” A Soc’y Without a
Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (quoting Cox v. Stanton, 529 F.2d 47, 50 (4th
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The federal regulations implementing the Rehabilitation Act provide that, to determine an appropriate
reasonable accommodation, “it may be necessary for the covered entity to initiate an informal, interactive
process with the individual with a disability in need of the accommodation. This process should identify the
precise limitations resulting from the disability and potential reasonable accommodations that could overcome
those limitations.” 29 C.F.R. § 1630.2(o)(3).

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Cir. 1975). The Fourth Circuit, like other federal appellate courts, has identified an employer’s
failure to accommodate as a “discrete act” of discrimination that occurs at the time a requested
accommodation is denied. Hill v. Hampstead Lester Morton Court Partners LP, 581 F. App’x
178, 181 (4th Cir. 2014); see also Dick v. Dickinson State Univ., 826 F.3d 1054, 1059 (8th Cir.
2016); Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130-31 (1st Cir. 2009). “Each discrete
discriminatory act starts a new clock for filing charges alleging that act.” Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 113 (2002). “Thus, a plaintiff who renews a request for a
previously denied accommodation may bring suit based on a new discrete act of discrimination if
the defendant again denies the request, and the subsequent denial carries its own, independent
limitations period.” Hill, 581 F. App’x at 181.
In this case, Branscome does not allege that any of his requests for an accommodation were
denied within the one-year period preceding the filing of the instant action on June 16, 2017.
Instead, his complaint refers to requests made before and during a meeting on February 25, 2016,
in March of 2016, in the spring of 2016, and in May of 2016, all of which were denied or ignored.
Because these discrete acts of alleged discrimination occurred outside the one-year period of
limitation, they are not actionable under the Rehabilitation Act.
Branscome attempts to revive Count III by emphasizing that DEQ “never engaged in any
interactive process despite [his] request for assistance.” Pl.’s Br. in Opp’n 4, Docket No. 9.
Branscome argues that DEQ “had up to the date of [his] termination to begin this process,” and that
its “on-going failure” to do so provides a basis for liability under the Rehabilitation Act. Id. For
the following reasons, however, the court disagrees.
First, the interactive process described in the regulations is “not an end in itself; rather it is
a means for determining what reasonable accommodations are available to allow a disabled

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individual to perform the essential job functions of [his] position.” Wilson, 717 F.3d at 347
(internal citation and quotation marks omitted) (discussing the interactive process implicated
under the ADA). Thus, it is “well established that ‘an employee cannot base a reasonable
accommodation claim solely on the allegation that the employer failed to engage in an interactive
process.’” Id. (quoting Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 F. App’x 314, 323
(4th Cir. 2011)); see also Minnihan v. Mediacom Communs. Corp., 779 F.3d 803, 813 (8th Cir.
2015) (“There is no per se liability under the ADA if an employer fails to engage in the interactive
process.”).
Second, because “a defendant’s failure to accommodate constitutes a discrete act rather
than an ongoing omission, the continuing-violation doctrine is inapplicable.” Hill, 581 F. App’x
at 181. Accordingly, Branscome cannot successfully argue that the failure to accommodate his
ADHD, coupled with his continued employment until June 21, 2017, constituted an ongoing or
continuing violation of the Rehabilitation Act. “Such a result would nullify the statute of
limitations in all failure-to-accommodate claims where the employer denies an employee’s
accommodation request and the employee remains with the company.” Durham v. Atl. City Elec.
Co., No. 08-1120, 2010 U.S. Dist. LEXIS 103998, at *26 (D.N.J. Sept. 28, 2010).
Because Count III is premised upon acts that fall outside the one-year period of limitation,
the accommodation claims, as currently pled, are time-barred.2 Accordingly, the court will grant
DEQ’s motion to dismiss Count III. The accommodation claims will be dismissed without
prejudice to the plaintiff’s right to amend within 21 days.

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During the hearing on the instant motion, the plaintiff suggested that he may be able to amend Count
III to identify discrete acts that occurred within the limitations period. The court will grant the plaintiff the
opportunity to do so.

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II.

Wrongful Termination in Violation of Public Policy

DEQ also seeks dismissal of Count IV, in which Branscome claims that he was terminated
in violation of public policies expressed in the VDA. For the following reasons, DEQ’s motion
will be granted with respect to this claim.
The Commonwealth of Virginia generally adheres to the doctrine of at-will employment,
meaning that employment lasts for an indefinite term and can be terminated for almost any reason.
Weidman v. Exxon Mobil Corp., 776 F.3d 214, 221 (4th Cir. 2015). “However, there is an
exception to this doctrine for at-will employees who claim to have been discharged in violation of
public policy.” Id. The Supreme Court of Virginia has recognized three situations in which an
at-will employee may establish that his discharge violated public policy:
(1) where an employer fired an employee for exercising a statutorily
created right; (2) when the public policy is “explicitly expressed in
the statute and the employee was clearly a member of that class of
persons directly entitled to the protection enunciated by the public
policy”; and (3) “where the discharge was based on the employee's
refusal to engage in a criminal act.”
Id. (quoting Rowan v. Tractor Supply Co., 559 S.E.2d 709, 711 (Va. 2012)). Claims based on
these scenarios are often referred to as “Bowman claims,” after Bowman v. State Bank of
Keysville, 331 S.E.2d 797 (Va. 1985), the first case in which the Supreme Court of Virginia found
that an at-will employee’s termination could violate public policy.
In this case, Branscome argues that his complaint states a claim under the second scenario,
since he alleges that he was terminated in violation of the public policies against disability
discrimination embodied in the VDA. The problem with Branscome’s argument is that the
Virginia Human Rights Act (“VHRA”) also expresses a public policy against discrimination on
the basis of disability. See Va. Code § 2.2-3900 (B) (“It is the policy of the Commonwealth to

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. . . [s]afeguard all individuals within the Commonwealth from unlawful discrimination because of
. . . disability[.]”). In 1995, the Virginia General Assembly amended the VHRA to provide that
“[c]auses of action based upon the public policies reflected in this chapter shall be exclusively
limited to those actions, procedures and remedies, if any, afforded by federal or state civil rights
statutes or local ordinances.” Va. Code § 2.2-3903(D). Since that time, the Virginia Supreme
Court and other courts applying Virginia law have held that the 1995 amendments “eliminated a
common law cause of action for wrongful termination based on any public policy reflected in the
VHRA, regardless of whether the policy is articulated elsewhere.” Conner v. National Pest
Control Ass’n, 513 S.E.2d 398, 400 (Va. 1999) (extending the rationale of Doss v. Jamco, Inc.,
492 S.E.2d 441, 447 (Va. 1997), in which the Court concluded that “the General Assembly plainly
manifested an intent to abrogate the common law with respect to causes of action for unlawful
termination of employment based upon the public polices reflected in the [VHRA]”); see also
Lamb v. Qualex, Inc., 28 F. Supp. 2d 374, 379 (E.D. Va. 1998) (Williams, J.) (“[T]he courts of this
district have unanimously held that the VHRA and analogous state statutes no longer provide the
public policy basis for a Bowman cause of action. This Court now joins those cited above and
holds that a state statute expressing a public policy also found in the VHRA does not provide an
independent cause of action for adverse employment actions.”) (collecting cases).
In response to the pending motion, Branscome cites to the Virginia Supreme Court’s
decision in Bradick v. Grumman Data Systems Corp., 486 S.E.2d 545 (Va. 1997), in which the
Court allowed the plaintiff to state a Bowman claim based on public policies against disability
discrimination expressed in both the VHRA and the VDA. As other courts have noted, however,
the Bradick decision did not address the effect of the 1995 amendments to the VHRA. See, e.g.,
McCarthy v. Texas Instruments, 999 F. Supp. 823, 831 (E.D. Va. 1998). Instead, the Supreme

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Court expressly noted that its decision was “based on the public policy expressed in the VDA and
VHRA at the time of Grumman Data’s alleged act of discrimination.” Bradick, 486 S.E.2d at
547; see also id. at 545 (noting that the plaintiff was discharged on May 26, 1994). Additionally,
Bradick was decided before Doss, and more importantly, before Conner, in which the Supreme
Court made clear that the VHRA prohibits a common law cause of action for wrongful termination
based on violations of public policies enunciated in both the VHRA and other provisions of state or
federal law. Conner, 513 S.E. 2d at 398. For these reasons, the court finds Branscome’s reliance
on Bradick unavailing.
In sum, because Branscome’s Bowman claim is based on public policies that are also
reflected in the VHRA, the claim is barred by Virginia Code § 2.2-3903(D). Accordingly, DEQ’s
motion will be granted with respect to Count IV.
Conclusion
For the reasons stated, the court will grant DEQ’s partial motion to dismiss. The Clerk is
directed to send copies of this memorandum opinion and the accompanying order to all counsel of
record.
DATED: This 30th day of October, 2017.

/s/ Glen E. Conrad
United States District Judge

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