Crump v. Tcoombs & Associates, LLC, trading as TCAssociates et al, No. 2:2013cv00707 - Document 23 (E.D. Va. 2014)
Court Description: OPINION AND ORDER: denying 9 Motion to Dismiss for Failure to State a Claim; dismissing as moot as to the Navy and granting as to TCA and TCMP 11 Motion to Amend/Correct. Plaintiff's Motion to Amend her Complaint, ECF No. 11, is DISMISSE D AS MOOT as to the Navy, as Plaintiff is entitled to amend her Complaint "once as a matter of course" as to the Navy. Fed. R. Civ. P. 15(a). Plaintiff's Motion to Amend her Complaint, ECF No. 11, is GRANTED as to TCA and TCMP, as TCA and TCMP do not oppose Plaintiff's motion and the Court finds no evidence of prejudice, bad faith, or futility resulting to TCA or TCMP from Plaintiff's amendments. Laber, 438 F.3d at 426. The Clerk's Office is ORDERED to file Plaintiff's proposed Amended Complaint, ECF No. 11-1, as of the date of this Opinion and Order. The Navy's Motion to Dismiss is DENIED. ECF No. 9. (See footnote and supra notes for specifics). Copies distributed to counsel of record as directed. Signed by District Judge Mark S. Davis and filed on 9/23/2014. (bgra)
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FILED UNITED STATES DISTRICT EASTERN DISTRICT COURT SEP 2 3 2014 OF VIRGINIA Norfolk Division CLERK, US DISTRICT COURT NORFOLK, VA SUMMER CRUMP, Plaintiff, v. Civil No.: TCOOMBS & ASSOCIATES, 2:13cv707 LLC, TRADING AS TCASSOCIATES, TCMP HEALTH SERVICES, LLC, and UNITED STATES DEPT BY AND THROUGH OF NAVY, RAY MABUS, SECRETARY OF DEPT OF NAVY, Defendants. OPINION This matter is before AND the ORDER Court on filed by the United States Department of ECF No. 9, as ("Plaintiff"), record, well as ECF No. the Court a motion to 11. a the Navy that to dismiss ("the Navy"), amend filed by Summer Crump After examining determines motion oral the briefs argument and the is unnecessary because the facts and legal contentions are adequately presented and oral argument would not aid in the decisional process. R. Civ. P. 78(b); forth below, to the motion Navy E.D. Va. Plaintiff's and to dismiss GRANTED Loc. motion as is DENIED. to R. 7 (J) . to amend TCA and For the Fed. reasons set is DISMISSED AS MOOT as TCMP, and the Navy's I. FACTUAL AND PROCEDURAL HISTORY1 Plaintiff alleges TCAssociates ("TCA), (collectively, Assistant VA, at that she Sewell's Point a Navy facility." deafness," received Plaintiff, cochlear a days before "a ("TCMP"), and the Navy 2010 a Medical HH 5, surgical "as Clinic 11, Physician in ECF No. procedure revision" failed. Plaintiff reasonable of "joint employers" Norfolk, 11-1. On who "suffers from bilateral profound Plaintiff asserts that she for May Branch implant cochlear implants" had three in Am. Compl. "underwent a hired by TCMP Health Services "Defendants") April 26, 2011, was Id. was . . . because f 12. whereby her On June scheduled to she "existing 17, return 2011, to work, submitted a request to TCA and TCMP accommodation to eliminate unnecessary excessive noise in the clinical environment and an effective and accurate alternative form of telecommunication ... so that she could perform the essential requirements of her position." Id. 1 14. 1 The facts of this case, drawn from Plaintiff's proposed Amended Complaint, are assumed true currently before the Court. Elkins Radio Corp., 278 F. for the purpose of deciding the motion See Burbach Broadcasting Co. 3d 401, 406 (4th Cir. 2002) . of Del, v. The facts recited here are not to be considered factual findings for any purpose other than consideration of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (observing that, "when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint"); Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) ("[I]n evaluating a Rule 12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint."). 2 "In her late request noise, for as since t 17. on According a to approximately were particular headset," of "more However, Sign video phone Plaintiff, one neither and TCA one-half reasonable disability," which only and such "maintained her with telephone information to TCA and accommodations, or or similar TCMP, offered nor effective as "a relay device." Id. sound" and a delay of accommodations for telephone which video "following months, "amplified excessive her Interpreters IPAD2 and withdrew to associated reasonable or she acclimated Plaintiff . . . Language that unnecessary become numerous American service asserts and provided additional "regarding included that had accommodation communications" TCMP Plaintiff elimination Id. for 2011," the she implants." request July (Plaintiff's] attachment "would have or done nothing to accommodate her disability," and "a non-signing staff person to Plaintiff paraphrase alleges the would communications which likelihood of patient communications being improperly relayed, especially in In August of 2011, that her carried a telephone," "risk of emergency situations." have by Id. KU 18-19. Plaintiff alleges that she 'request for accommodations' had been agreed that she would be allowed to return to work," regarding asserts the that set up" were "the parties resolved. participated "was advised Id. to and after the "details H 20. Plaintiff in a dialogue by email and other communications accommodation, . . . getting with regard responsibility for with the to regard requisite logistics the cost setting approvals, set for among other things." accommodation, to up, and Id. up coordinating approvals, provision However, "forwarded a for Request for the "[o]n October according to Plaintiff's Amended Complaint, form and of 12, 2011," written the the Navy Accommodation to [Plaintiff], through [TCA] and/or TCMP," which Plaintiff alleges she submitted "as instructed," accommodations from the Navy." that "requested a she also "request[ing] Id. H 21. conference reasonable Plaintiff between the alleges Navy, [TCA] and/or TCMP and herself to discuss the accommodations necessary, details regarding set up, and attempt to come to a resolution." Id. H 23. Plaintiff conference" asserts that "Defendants agreed to the and that Plaintiff believed that TCA, TCMP, and the Navy "remained interested in resolving the issues." Id. 1M 22- 23. 2012, Plaintiff alleges that, "by conference had not taken place and a response from the Navy Request for Accommodation." that day, [Plaintiff] respond within ten consider the February [Plaintiff] [regarding] Id. U 24. advised the her 21, had not received October for Navy accommodation 17, 2011 Thus, in a "letter dated that if it (10) days of receipt of the letter, request the to be did not she would denied and would proceed with consulting a counselor pursuant to 29 CFR 1614.105 in order to resolve the matter." response," Plaintiff Id.2 "instituted an pursuant to the Rehabilitation Act." On June connection in 15, 2012, with alleges not provide request, a copy claim against dated May the Z150 "assurance that 24, 2012, date by which the directly Defendants regarding the Plaintiff [Plaintiff]." Z150 to and/or TCMP, [video phone] "could medical Id. give no not and/or a offer either would be approved or be approved, a ordered, Plaintiff also alleges assurance qualifications, credentials of the interpreters, K 25. and/or TCMP, through could could H 26. and did Id. 'sign language services' [video phone] installed or operational." that Plaintiff which [TCA] although Defendants the Navy response to her "directly to proposed the use of video phone," the Navy," the Navy's Plaintiff asserts that "the Navy (and [TCA] agreement) against during a "meeting with an EEO Counselor her the Navy sent action no Id. asserts that she received a copy of accommodation After "receiv[ing] to [Plaintiff] certifications or with such being necessary in 2 Plaintiff's letter, attached as an exhibit to the Navy's motion to dismiss, is dated February 22, 2012. See ECF No. 10-2. However, Plaintiff's Amended Complaint and Plaintiff's Reply Brief supporting her Motion to Amend - both filed after the Navy's motion to dismiss continue to assert that the letter was sent on February 21, 2012. See Am. Compl. H 24, ECF No. 11-1; PL's Reply Br. at 4 n.l, ECF No. 21. Thus, for the purposes of this discussion, favor of Plaintiff, 21, 2012, drawing all inferences in the Court considers the letter sent on February as Plaintiff contends. the medical profession, or their availability on short notice." Id. H 27. "As of July [had] failed to allow [Plaintiff] 27, 2012," to return to work." Defendants' intentional effort impossible Accordingly, job to failure force and Id. . . . which would U 29. demonstrated According to "a deliberate, resignation [Plaintiff's] intolerable "Defendants and working conditions." [to Id. Plaintiff alleges that she was forced "to quit her effective refus[al] contends, institute any accommodations Plaintiff, create] Plaintiff that accommodation and cooperate to day" in ultimately that Defendants' resolving [led] to "fail[ure] [her] [Plaintiff's] request and for constructive Id^ <l% 29-30. discharge." On December 19, Defendants, 2013, Plaintiff alleging discrimination, filed a Complaint against failure to accommodate, and constructive discharge against TCA and TCMP in violation of the Americans with Disabilities Act of §§ et 12101 seq. , and against the 1990 ("the ADA"), Navy in 42 violation U.S.C. of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq.3 Complaint, an ECF No. Answer to 1. On January 29, 2014, TCA and TCMP filed Plaintiff's 3 "Unlike the ADA, Complaint, denying liability to the Rehabilitation Act covers only entities that possess a certain nexus with the federal government, e.g., those that receive federal assistance, 29 U.S.C. § 794, or that hold federal contracts government or subcontracts, itself, [29 [29 U.S.C] § 793, U.S.C] § 791." 1 Employment Discrimination Law 13-17 (5th ed. 6 as well Lindemann, 2012) . as et the al. , Plaintiff 5. On and asserting various March 31, 2014, the affirmative Navy pursuant to Federal Rule of Civil 9. Fourteen days later, Motion to Amend/Correct have been fully a Motion 14, 2014, her Complaint, ECF Nos. by Dismiss, ECF No. Plaintiff filed a attached to which was 11, ll-l. responded to either motion, briefed to ECF No. Procedure 12(b)(6). on April proposed Amended Complaint. and TCMP have not filed defenses. Plaintiff and a Defendants TCA but the both motions Navy and are therefore ripe for review. II. STANDARD OF REVIEW A. Motion to Amend Complaint - Rule 15(a) Under Rule 15(a) of the Federal Rules of Civil Procedure, a "party may amend its pleading once as a matter of course" within "21 days after serving it," or, a responsive pleading is "if the pleading is one to which required," such as a complaint, "21 days after service of [the] responsive pleading or 21 days after service of a motion under Rule 12(b), earlier." Fed. R. Civ. responsive pleading, P. 15(a). (e) , or (f) , whichever is Once a defendant has filed a the plaintiff may amend its pleading "only with the opposing party's written consent or the court's leave." Id. The United States Court of Appeals for the Fourth Circuit has embraced the "policy to liberally allow amendment in keeping with the spirit of [Rule] 15(a)," 724, (4th 2010), which provides 729 Cir. Galustian v. that Peter, a 591 "court F.3d should freely give leave when justice so requires," Fed. "interpreted Rule R. 15(a) Civ. P. 15(a)(2). The Fourth Circuit that has to provide 'leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, been bad faith on the part of the moving party, would have been futile.'" (4th Cir. 503, 2006) 509 require is Cir. one the Harvey, or the amendment 438 F.3d 404, 426 (quoting Johnson v. Oroweat Foods Co. , 785 F.2d (4th amendment Laber v. there has 1980)). that 'raises gathering considered by the during trial.'" For and new legal analysis [defendant, Id. a instance, and] of "a prejudicial theory facts that not would already is offered shortly before or (quoting Oroweat Foods, 785 F.2d at 509). "Futility is apparent if the proposed amended complaint fails to state a claim standards." 471 (4th under Katyle Cir. Galustian, 591 v. 2011) ; Kellogg Brown & Root, F.3d the applicable Penn Nat'l see also Inc., at 730 Gaming, United 525 rules Inc., States F.3d 370, (observing and ex 376 that accompanying 637 rel. F.3d 462, Wilson (4th Cir. "the v. 2008); doctrine of futility only applies when the plaintiff seeks leave of court to amend and does not have a right to amend") . The Fourth Circuit has indicated that "[l]eave to amend . . . should only be denied on the ground of futility when the proposed amendment is clearly insufficient or frivolous on its face." 8 Oroweat Foods, 785 F.2d at 510 (citing Davis v. (4th Cir. complaint, or Civil Procedure 12(b)(6) a claim within a permits dismissal complaint, based on plaintiff's "failure to state a claim upon which relief granted." Fed. Civ. R. P. pursuant to Rule 12(b)(6) 8(a) (2), which requires claim showing that Civ. P. 8(a)(2), what the so the 12(b)(6). A motion to can be dismiss must be read in conjunction with Rule "a short and plain statement of the Fed. R. fair notice of pleader is entitled to relief," as the to "'give the defendant . . . claim is and the grounds upon which it rests,'" Bell Atl. Corp. v. Conley 613 Motion to Dismiss Rule 12(b)(6) Federal Rule of a 615 F. 2d 606, 1980)). B. of Piper Aircraft Co., v. original). Gibson, Twombly, 355 550 U.S. 544, U.S. 41, 47 555 (2007) (1957)) (quoting (omission in The United States Supreme Court has interpreted the pleading standard set forth in Rule 8 (a) as requiring that a complaint include enough facts for the claim to be "plausible on its face" and thereby "raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." 570 (internal citations omitted). is "not akin more than Ashcroft v. a The plausibility requirement to a 'probability requirement, ' but sheer possibility" Iqbal, 556 U.S. 662, Id. at 555, that 678 a defendant (2009) it asks is for liable. (quoting Twombly, 550 U.S. at 556). plausibility allows the In when the court to other words, plaintiff draw the "[a] pleads claim factual reasonable complaint without "'must accept as the factual true all of the E.I, du 435, and 'draw all plaintiff.'" Montgomery 440 Cnty., Pont (4th de motion tests resolving in the complaint' of 12(b)(6) 684 Nemours Cir. factual & 462, Co. 2011)). v. the Id. at 663. a district inferences Volunteer (4th Kolon that a court allegations contained reasonable 467 that sufficiency of disputes, Kensington F.3d the facial content inference defendant is liable for the misconduct alleged." Because a Rule has Fire in favor Dep't Cir. 2012) Indus., Inc., Accordingly, "'Rule v. (quoting 637 F.3d 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations.'" (quoting Neitzke (omission in v. Williams, original). motion to dismiss 236 In 490 complaint "even if it appears remote and unlikely.'" 232, A Twombly, U.S. may 550 319, U.S. 327 therefore at 555 (1989)) survive a 'that a recovery is very Id. (quoting Scheuer v. Rhodes, 416 U.S. (1974)). considering a typical Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, the "court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint." du Pont de Nemours & Co. v. Kolon Indus., 10 637 F.3d 435, E. 448 I. (4th Cir. 2011) (citing Navigation Ltd., Sec'y of 484 F.3d 700, LCI Int' 1 Inc. , 190 F.3d 609, court State 705 618 for Defence (4th Cir. Trimble 2007); Phillips v. 1999)). (4th Cir. "may consider documents attached to v. A district the complaint or the motion to dismiss 'so long as they are integral to the complaint and authentic.'" Kensington Volunteer 467 (quoting Philips v. 180 (4th Cir. motion Cnty. F.3d at 572 F.3d 176, dismiss Procedure 12(b)(6), which complaint, generally cannot reach the merits of an affirmative facts except sufficient "in to rule in the complaint." (4th Cir. 2007). the under Hosp., 684 to defense," filed Mem'1 Dep't, 2009)) . " [A] Pitt Fire tests Federal the relatively on an affirmative In other words, of sufficiency rare Goodman v. PraxAir, Rule of circumstances defense Civil are the where alleged Inc., 4 94 F.3d 458, 464 a motion to dismiss pursuant to Rule 12(b)(6), based solely on an affirmative defense, may be considered defense v. 4 would complaint defenses at omitted) Forst, otherwise his "if all facts 'clearly appear[] (emphasis R.R. only even necessary on the face of (quoting Richmond, F.3d 244, require matters before a that the 250 might be affirmative 466. 11 the affirmative the complaint.'" Fredericksburg (4th Cir. plaintiff to to 1993)). plead Potomac "To require affirmatively responsive defenses & are Id. to in affirmative raised." Id. III. The should Navy be asserts DISCUSSION that dismissed Count because IV of Plaintiff's Plaintiff's Complaint "Complaint lacks sufficient factual content to render [a constructive discharge] claim Navy's against Dismiss Counts at the Navy plausible." ECF No. 10. 2, III and IV of "because Plaintiff ('EEO') accommodate and Navy to timely counseling" constructive Rehabilitation Act. also Supp. contends Mot. that to both Plaintiff's Complaint should be dismissed failed Opportunity The Br. Id. initiate Equal regarding discharge Plaintiff her Employment failure-to- claims asserts that under her the proposed "Amended Complaint will resolve many of the issues raised in the Motion to Dismiss," Navy disagrees, Plaintiff's Pi's Br. arguing [Complaint] in Opp'n at 2, ECF No. that have "none of been the insufficiencies cured" and, the [C]omplaint would be futile," Navy's Br. No. 19. Thus, before motion to dismiss, considering the 14, but the thus, in "amending in Opp'n at 2, ECF merits of the Navy's the Court considers whether Plaintiff should be permitted to amend her Complaint. A. Because Amended Plaintiff Complaint Plaintiff's Plaintiff's Motion to Amend filed after Complaint, TCA her and Plaintiff Motion TCMP to Amend filed "may amend and their [her] proposed Answer to pleading" as to TCA and TCMP only "with the opposing party's written consent 12 or the court's leave." hand, the Navy Complaint and, has Fed. not R. Civ. yet P. 15(a)(2). filed an Answer On the other to Plaintiff's because Plaintiff filed her Motion to Amend and proposed Amended Complaint within "21 days after service of Navy's] motion pleading" Civ. P. under Rule 12(b)," Plaintiff "may as to the Navy "once as a matter of course." 15(a)(1). See, e.g., Williams F.3d 1282, 1291 (11th Cir. defendant, and not all have amend the complaint plaintiff may 2007) v. Bd. of rule in effect before the filed responsive as a 2009 matter Amendments Rules of Civil Procedure)); Barksdale v. (5th Cir. 1983) (same)).4 [her] Fed. R. Regents, 477 ("If the case has more than one pleadings, of regard to those defendants that have yet to answer." the amend [the Thus, the King, Court to course the with (relying on the Federal 699 F.2d 744, DISMISSES AS 747 MOOT 4 "Prior to 2009, when a responsive pleading terminated the right to amend as a matter of course, if only some defendants filed a responsive pleading, 'it generally was held that a responsive pleading' had not been served for purposes of Rule 15(a) (1) and plaintiff could amend the complaint as of course with regard to those defendants that had not answered.'" Jackson v. WCM Mortg. Corp., No. 2:12-cv-02914, 2013 U.S. Dist. LEXIS 106972, at **9-10 (W.D. Tenn. July 31, 2013) and Procedure (quoting 6 Charles Alan Wright et al. , Federal Practice § 1481 (3d ed. 2013)). "After the 2009 Amendments to Rule 15(a)(1), 'if only some defendants file responsive pleadings, plaintiff still should be governed by the 21-day amendment period in Rule 15(a)(1)(A) for pleading amendments regarding the nonresponding defendants.'" Id. (quoting Wright, supra, at § 1481). See Am. Realty Investors, Inc. v. Prime Income Asset Mgmt., LLC, No. 2:l3-cv-00278, 2013 U.S. Dist. LEXIS 148981, at *16 (D. Nev. Oct. 15, 2013); Morsheiser Family Revocable Living Trust v. Anshutz Exploration Corp., No. 5:12CV1734, 2012 U.S. Dist. LEXIS 141700, at **2-3 (N.D. Ohio Oct. 1, 2012); Hylton v. Anytime Towing, No. 11CV1039, 2012 U.S. Dist. LEXIS 41010, at **6-7 (S.D. Cal. Mar. 26, 2012); Jones v. Safi, No. 10-CV-2398, 2011 U.S. Dist. LEXIS 132088, at **9-10 (E.D.N.Y. Nov. 10, 13 Plaintiff's Motion to entitled to amend her against the Navy, Amend which TCMP, the to Court Plaintiff's has the "once not Navy, as yet a as Plaintiff matter filed an of is course" Answer to Fed. R. Civ. P. 15(a). Plaintiff's Motion to Amend as observes motion to Complaint Plaintiff's Complaint. With respect as to that and TCMP do not Presumably, amend. TCA to TCA and oppose this is because the "only pertinent changes or additions" appear to clarify only the facts pertaining to the Navy, rather than TCA and TCMP. Br. in Opp'n at 22, ECF No. conclude from the record 19. that prejudicial to [TCA or TCMP], Furthermore, Plaintiff's [that] Navy's the Court cannot "amendment would be there has been bad faith on the part of the moving party, or [that] the amendment would have been futile." Accordingly, Laber, 438 F.3d at 426. Plaintiff's Motion to Amend is GRANTED as to TCA and TCMP. B. The Navy's Motion to Dismiss The Navy Navy (Count "moves III pursuant to claim." Navy's complaint Fed. to dismiss Plaintiff's and R. Count Civ. Mot. P. IV 12(b) (6) to Dismiss "amended under Rule [of at 15(a) 1, claims against the Plaintiff's Complaint]) for to failure ECF No. supersedes 9. state a Although a the pleading it modifies" and "any subsequent motion . . . should be directed at the amended pleading," 2011); Villery v. Dist. a of defendant Columbia, 2011). 14 "should not 277 F.R.D. be 218, required to 219 (D.D.C file a new motion to dismiss simply because an amended pleading was introduced while Miller, Federal Rather, the their Practice Court motion & was pending." § 1476 Procedure "simply may 6 Wright ed. consider [the being addressed to the amended pleading." considers Dismiss the and Navy's its (3d Navy's] Id. 2014) . motion Thus, & as the Court arguments contained in both its Motion to opposition order to determine whether to Plaintiff's "the defects Motion to Amend raised in original motion remain in the new pleading." the in [Navy's] Id.5 1. Constructive Discharge The Navy first argues that Plaintiff "fails to state a claim of constructive discharge against the Navy" in Count IV of her Complaint because she fails to "'[d]eliberateness of the employer's action, of the working conditions.'" Navy's Br. demonstrate and intolerability Supp. Mot. to Dismiss at 7, ECF No. 10 (quoting Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)). The Navy further asserts that Plaintiff's "Amended Complaint contains no new facts in support of Plaintiff's 5 The Navy constructive incorporated discharge into its claim." reply Navy's brief Br. in supporting its Motion to Dismiss all of the arguments regarding the sufficiency of Plaintiff's proposed Amended Complaint contained in the Navy's opposition to Plaintiff's Motion to Amend. See Navy's Reply Br. at 2, ECF No. 18 (asserting that "the appropriate place to now address the legal sufficiency of Plaintiff's claims against the Navy is in connection with Plaintiff's motion for leave to amend" and "fully incorporat[ing] that portion of its response to Plaintiff's motion for leave to amend her complaint relating to the constructive discharge claim"). 15 Opp'n at 8, has ECF No. satisfied 19. "both Plaintiff disagrees, deliberateness and arguing that she intolerability of the working conditions" by alleging "a complete failure by the Navy to provide any accommodation." PL's Br. in Opp'n at 3-4, ECF No. 14 (emphasis in original). In the discharged Fourth 'if conditions of an the Circuit, employer employee the employee to quit.'" 248 (4th Cir. F.3d 1343, 2010) 1353-54 Cir. deliberately Thus, constructively makes the in an effort Whitten v. Fred's, (4th Cir. 1995)), Inc., working to induce 601 F.3d 231, Bank, 434 in order to 48 abrogated on other grounds 133 S. Ct. 2434 F.3d 249, Bald Head Island Mgmt., 2001). is (quoting Martin v. Cavalier Hotel Corp., Colombo Sav. Matvia v. employee intolerable by Vance v. Ball State Univ., Heiko v. "an Inc., survive 262 259 a (2013); see also (4th Cir. F.3d 261, motion 2006); 272 (4th to dismiss, a plaintiff's complaint must plead sufficient facts demonstrating "(1) that working the employer's actions were deliberate, conditions were intolerable." (citing Honor v. Booz-Allen & Hamilton, 87 (4th Cir. F.3d 239, 2004) ; Munday v. 244 (4th Cir. Heiko, Inc., Waste Mgmt. 434 and (2) F.3d at that 262 383 F.3d 180, 186- of N. Am., Inc., 126 1997). a. Deliberateness of the Employer's Actions The Navy argues that Plaintiff's Amended Complaint does not "contain[] sufficient facts to 16 show a plausible claim of deliberate actions discrimination, quit." of the Navy, motivated is a that its "alleged failure "insufficient constructive efforts Plaintiff . . . was Plaintiff not to establish discharge continued Plaintiff, by and which were intended to force Navy's Br. in Opp'n at 9, ECF No. 19. Navy argues more, by to find and intentionally disagrees, arguing Specifically, the without element and that an the sought her her accommodation," explicitly held deliberateness] which . . . she may alleges to be In the 132 "prove (4th Cir. that discharge Navy to provide Circuit [to "has demonstrate element 'the of actions 14 (citing Johnson v. Shalala, 1993)). Fourth Circuit, deliberateness Id. for purposes of a constructive discharge case." PL's Br. in Opp'n at 4, ECF No. 991 F.2d 126, retain quit." Fourth sufficient for to constructive the Navy's accommodation claim "is based upon a complete failure by the any "the Navy force that to accommodate," implement [that] [Plaintiff] deliberateness the claim," evidence to to disability a plaintiff a seeking to satisfy the constructive complained of discharge were claim intended by must the employer as an effort to force the employee to quit.'" Martin, 48 F.3d at F.3d at 272 were 1354 (4th Cir. ("'Deliberateness intended plaintiff to by see exists only if the quit.'" 1995); employer (quoting as Taylor 17 also Matvia, the actions an effort v. Va. 259 complained of to force the Union Univ., 193 F.3d 219, 237 (4th Cir. 1999) (en banc))). "Deliberateness can be demonstrated by actual evidence of intent by the employer to drive such the employee intent." Printing from the Johnson, Co., 955 job, 991 F.2d or circumstantial F.2d 936, at 131 944-46 evidence of (citing EEOC v. (4th Cir. Clay 1992)). A plaintiff is not required to produce "'smoking gun' evidence of employer intent," Martin, 48 F.3d at 1354 (citation omitted), as "a complete requests, failure might to accommodate, in the face is especially true under the federal employers are required to Amended the Act, where "affirmatively take steps Complaint to unless accommodation would impose undue hardship on the government." Plaintiff's 991 F.2d at 132. Rehabilitation accommodate employees with handicaps, supporting repeated suffice as evidence to show the deliberateness necessary for constructive discharge," Johnson, This of Id. at 131. sufficiently deliberateness element alleges of facts Plaintiff's constructive discharge claim. Plaintiff alleges that she sent a written - request October 17, to 2011, and TCMP, her inability the reasonable communicate disability." Am. Plaintiff's Amended 2011] at the Navy's direction - on four months after her initial request to TCA requesting to Navy Compl. to participate over 1 21, Complaint, in ... accommodations ECF the the No. Navy telephone 11-1. "agreed a conference" 18 "to accommodate due to According [in her to October with Plaintiff "to discuss the accommodations necessary" and the "details regarding set up." Id. Navy appeared H 22. However, Plaintiff asserts, although the "interested in resolving the issues and engaging in an interactive process to resolve the issues," 21, place 2012, still] 17, the conference had not taken "by February and [Plaintiff had not received a response from the Navy to her October 2011 Request for Accommodation." Plaintiff alleges letter to consider the [her] that Navy, it Id. M 23-24. In fact, was only after her February 21, "advis [ing] the Navy that . . . she 2012 would request for accommodation to be denied and would proceed with consulting [an EEO] counselor" if the Navy "did not respond within ten (10) days during her visit with the of [had] and/or 2012, Plaintiff's on May 24, request. of the EEO counselor on June she learned that "the Navy TCMP" receipt Id. letter," 2012, that sent a response ... to [TCA] seemingly HI 24-25. 15, agreeing Plaintiff's Complaint goes on to allege that, on July 27, 2012, months after her October 17, and to grant Amended nearly nine 2011 request to the Navy, and more than two months after the Navy appeared to agree to Plaintiff's request, the Navy had nonetheless "failed to institute any accommodations, either temporary or long term, which would allow [Plaintiff] return to to work," quit her job effective that day." 19 "thereby Id. 1 29. forcing Plaintiff to Although Plaintiff's Amended Complaint may not demonstrate "actual evidence of intent by the [Navy] to drive [Plaintiff] from [her] job," the Court finds that Plaintiff has sufficiently pled "circumstantial F.2d at 131. evidence of Specifically, such intent." Plaintiff's Johnson, Amended 991 Complaint asserts sufficient facts demonstrating that the Navy falsely led Plaintiff to believe that it "remained interested in resolving the issues and engaging in an interactive process to resolve the issues," Am. Plaintiff's Compl. of No. 11-1, and that, for accommodation, despite Johnson, 991 the Navy's "failure to engage in the interactive resulted in accommodation for Bd. ECF "repeated requests" F.2d at 131-32, process 1 23, the failure [Plaintiff]," Educ. , 423 F. to identify Crabill v. App'x 314, 323 an appropriate Charlotte Mecklenburg (4th Cir. 2011). Indeed, "when an employee makes a repeated request for an accommodation and that request is both alternative is offered, resignation Family was Dollar both The Navy investigate, . . . even after possibly have intended 542 and and she no other reasonable F.3d foreseeable." 1099, 991 F.2d at 132). insists offer, and a jury may conclude that the employee's Stores, (relying on Johnson, denied had that, implement resigned "intentionally (6th it 2008) "continued accommodations her Cir. v. Plaintiff has so pled. because [sought] 20 1109 Talley position," to force to for Plaintiff it could not Plaintiff to quit.'" Navy's Br. Supp. Mot. to Dismiss at 9-10, ECF No. 10. However, Plaintiff's Amended Complaint alleges that she was not informed "that the Z150 video phone was approved and operational until approximately 21 months after her first communications regarding her needs for accommodation," Am. Compl. H 28, ECF No. 11-1, which was long after Plaintiff had resigned. because Plaintiff's constructively neither 2011 discharged offered Plaintiff in request Amended nor the on July provided nine and her Complaint any months the Court finds that Plaintiff be forced to quit that the Supp. [Navy] 2d employer denial 308, intended 330 make denies working disabled employee will be discharge Johnson, claim will she was that the Navy accommodation Plaintiff's discharge [Navy] October on July 27, knew that result." 2013) an [Plaintiff] to 17, 2012, Floyd v. Lee, intolerable forced to resign, (citing Talley, and 968 F. "if an that the that the that, accommodation knowing so would not accommodated, (recognizing conditions lie" that "has alleged enough to support a that (D.D.C. and reasonable if her disability were deliberately will 2012, between constructive plausible inference that the 27, alleges Nonetheless, then a constructive 542 F.3d at 1109; 991 F.2d at 132)) . b. Intolerability of the Working Conditions The sufficient Navy also facts to argues that establish 21 Plaintiff the "fails intolerability to allege element of [her] constructive discharge Dismiss at 11, contains no allegations, to ECF accommodate, conditions that unreasonably Navy's Br. arguing to that were Opp'n her demonstrating both and failure respond "precluding] earning a because beyond so the as at to 20, the Plaintiff livelihood alleges from for [a] working nine month Bristow Daily would Press, 1985). "'Difficult qualify as or have Inc., felt 770 unpleasant F.2d 1251, working (quoting Carter v. Ball, 33 F.3d 450, 459 dissatisfaction unfairly and until she criticized, with or work is assessed by compelled Heiko, being thereby 'reasonable person' conditions," "mere continued Defendant [s] ... intolerable are any PL's Reply Br. at 19, ECF No. 21. the objective standard of whether a position "its period," "Intolerability of working conditions employee's facts provide Plaintiff," for so disagrees, sufficient and from and resignation. to accommodation" failure created workplace Plaintiff "failure to Complaint aggravated 19. information Mot. purported Plaintiff's ECF No. Navy's to so compel Supp. "Amended [Navy's] Complaint instituted ultimately resigned. v. Br. her egregious, Amended operational to 10, Navy's objectively show the Navy harsh" in No. claim," 1255 434 (4th a Cir. do not at 263 1994)), nor F.3d (4th Cir. or resign." conditions' assignments, difficult to in the feeling unpleasant of working conditions ... so intolerable as to compel a reasonable person 22 to resign," James v. Booz-Allen & Hamilton, 378 (4th Cir. 2004). However, from a 368 F.3d 371, although "[a]n employee may not be unreasonably sensitive to [her] protected Inc., calculated working environment," she "is effort to resignation through the conditions." Bristow, intolerability Plaintiff she element alleges cannot which Amended include providers," into Navy new lab "a medications institute to return to work." with and the claim. accommodation," of her patients test harsh alleges discharge reasonable functions and results" position," and to instruct[ing] other patients, regarding new tests and lab results." 14, 17, ECF No. 11-1. to sufficiently essential and explain[ing] "failed [her] the unreasonably constructive "without "relay[ing] dosage/usage, her "communicat[ing] "prescrib[ing] Compl. m of that, "perform Complaint of [her] 770 F.2d at 1255. Plaintiff's imposition pressure Am. Plaintiff also alleges that the any accommodations Id. H 29. . . . allow[ing] A reasonable jury could conclude that a complete inability to communicate with patients and providers by telephone would render Plaintiff's working conditions "intolerable," as using the telephone is vital to her ability to "relay lab medications "communicate and and test with patients results" instruct to other patients, regarding explain [ing] new tests and lab results." 23 and providers," "prescribe dosage/usage, Id. H1 14, 17. new and Thus, the Court finds that Plaintiff's Amended Complaint, the light most favorable to Plaintiff, construed in alleges sufficient facts - at least at this stage of the litigation - demonstrating that the Navy's failure to provide Plaintiff with a reasonable accommodation created a working environment so intolerable that "a 'reasonable person' in [Plaintiff's] compelled to resign." Bristow, position [may] have felt 770 F.2d at 1255. Accordingly, the Navy's motion to dismiss Plaintiff's constructive discharge claim is DENIED. 2. Timeliness of EEO Counseling The Navy argues that both Counts III and IV of Plaintiff's Amended Complaint should be to timely initiate EEO against the Navy." Specifically, no later dismissed because counseling Navy's Mot. with December 9, 2011," the Navy on April 45 Id. at window." 15. to her claims ECF No. 10. "Plaintiff's claims accrued but counseling against day respect to Dismiss at 12, the Navy alleges that than "Plaintiff failed Plaintiff 18, Thus, 2012 the "initiated EEO . . . beyond the Navy contends that Plaintiff's "claims against the Navy are time barred and must be dismissed." reasonable Id. inference Plaintiff in argues Plaintiff's that, favor, the "drawing facts every support (and a reasonable person could find) that the accommodation was not 4, denied any earlier than March 24 2012" and, thus, her initiation of EEO counseling was timely. ECF No. PL's Reply Br. at 13, 21. An employee bringing an action under the Rehabilitation Act must satisfy the administrative exhaustion requirements imposed by Title VII of the Civil Rights Act of 1964 ("Title VII"). 29 U.S.C. a § 794a(a) (1) . Under Title VII, federal See employee "who feels he or she has been discriminated against must bring the matter to an EEO counselor within 45 discriminatory matter within 4 5 days of Larson, 2012); in the case of the effective date of Employment see or, also Discrimination 29 C.F.R. days the alleged personnel a of action, the action." § 64.01, at 3 Lex K. 64-3 "The § 1614.105(a)(1). (2d ed. unlawful practice occurs when the plaintiff is informed of the allegedly discriminatory Regents, 510 State Coll. v. Sw. Va. practice F. v. App'x Ricks, Gas plaintiff's accrues on the decision." 223, 227 449 U.S. Co. , disabled or 135 (4th 250, F.3d employment date that Cir. 258 307, Jeandron 2013) (1980)); 310 the alleged Bd. (citing of Del. see also Martin (4th discrimination v. Cir. 1998) cause unlawful of ("A action employment practice occurs."). Plaintiff's Amended constructive discharge H 30, ECF No. 11-1. not allege the Complaint [occurred] alleges on July 27, 2012." that "her Am. Compl. Although Plaintiff's Amended Complaint does exact date of the 25 Navy's alleged failure to accommodate, Plaintiff alleges that she was "informed allegedly discriminatory practice or decision," Jeandron, App'x response at 227, when she did not receive a of the 510 F. to her February 21, 2012 letter informing the Navy that Plaintiff would consider receive her a request response letter," Am. Complaint counseling, internal EEO H 24, does but accommodation "within Compl. also for not ECF (10) No. indicate alleges charge ten and that denied days of 11-1. the she receipt Plaintiff's date Plaintiff complaint if she the not of the Amended initiated "fil[ed] within did a EEO timely required time limits specified by law and regulation" and that she "complied with the administrative remedies under the Rehabilitation Act." Id. H 4. Failure to file "a timely charge of discrimination with the EEOC" is an affirmative defense [and] is subject Zipes v. Thus, to waiver, "like a statute of estoppel, Trans World Airlines, Inc., limitations, and equitable tolling." 455 U.S. 385, 393 (1982) . the Court may grant the Navy's motion to dismiss on such ground only "if all 'clearly appear[] facts necessary to the affirmative defense on the face of the complaint,'" F.3d at 464 (quoting Forst, 4 F.3d at 250) .6 Goodman, 494 Because the Court 6 "'Failure to exhaust' claims are to be distinguished from the situation where a specific charge of discrimination is filed with the EEOC, but it is allegedly untimely." Edwards v. Murphy-Brown, L.L.C, 760 F. Supp. exhaust' 2d 607, argument 613 (E.D. alleging Va. the 26 2011). absence "[U]nlike a of a 'failure to jurisdictional cannot conclude, from the face of Plaintiff's Amended Complaint, that failure the Navy's to accommodate Plaintiff's necessarily occurred more than forty-five days disability before Plaintiff initiated EEO counseling regarding her claim,7 the Navy's motion to dismiss Counts III and IV of Plaintiff's Amended Complaint on the ground remedies that Plaintiff failed exhaust her administrative is DENIED. IV. For to the reasons CONCLUSION stated above, Plaintiff's Motion to Amend her Complaint, ECF No. 11, is DISMISSED AS MOOT as to the Navy, as to amend the Navy. Plaintiff matter of is entitled course" as Plaintiff's Motion to GRANTED to and as TCA to Amend TCMP, her as her Complaint Fed. R. Complaint, TCA and "once Civ. ECF TCMP do as P. 15(a). No. not 11, a is oppose prerequisite, which should be addressed by a 12(b)(1) motion challenging subject matter jurisdiction, this Court finds that the 'untimeliness' claims should be addressed within the context of a 12(b)(6) motion." Id.; see also Chacko v. Patuxent Inst., 429 F.3d 505, 513 n.5 (4th Cir. 2005) (indicating that, in the Title VII context, the timeliness of filing a "'charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court.'" (quoting Zipes, 455 U.S. at 393)). 7 The Navy attached to its motion to dismiss a July 17, 2012 letter sent from the EEO Programs Department to Plaintiff, suggesting that Plaintiff "initially contacted this office on 18 April 2012," alleging disability discrimination, failure to accommodate, and constructive discharge "on 27 June 2011." ECF No. 10-3. However, the EEO letter was not "attached or incorporated into [Plaintiff's] complaint" or her Amended Complaint. E. I. du Pont de Nemours, 637 F.3d at 448. Thus, "'draw[ing] all reasonable inferences in favor of the plaintiff,'" Kensington Volunteer Fire Dep't, 684 F.3d at 467, the Court declines to rely upon such letter to determine the date Plaintiff initiated EEO counseling regarding her complaints. 27 Plaintiff's motion and the Court finds no evidence of prejudice, bad faith, or futility resulting to TCA or TCMP from Plaintiff's amendments. ORDERED 11-1, to as Motion Laber, file of 438 F.3d the to Dismiss to all IT IS SO 426. The Clerk's Office Plaintiff's proposed Amended Complaint, date is of this DENIED. The Clerk is REQUESTED Order at counsel of Opinion ECF No. to and Order. is ECF No. The Navy's 9. send a copy of this Opinion and record. ORDERED. /s/ Mark UNITED Norfolk, Virginia September SS , 2014 28 STATES S. Davis DISTRICT JUDGE
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