DocketNumber： No. 1:11cv1228 (JCC-JFA)
Judges： Cacheris
Filed Date： 3/16/2012
Status： Precedential
Modified Date： 11/7/2024
MEMORANDUM OPINION
This matter is before the Court on Motions to Dismiss [Dkts. 11, 18] filed by Defendant Loudon County School Board (“LCSB”) and Defendants Paul Webb, Jill Broaddus, Mary Kearney, Delores Creech, and Brian Peppiat (the “Individual Defendants”) (collectively “Defendants”).
I. Background
This case arises out of an employment dispute that implicates the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.
A. Factual Background
1. Ainsworth’s Employment with LCSB
Plaintiff Kristin Ainsworth was employed by LCSB from 2001 until June 21, 2010, during which time she worked as a Teacher’s Assistant and Behavioral Assistant at various schools. (Am. Compl. [Dkt. 3] ¶¶ 4, 27.) While working as a Teacher’s Assistant at Seneca Ridge Middle School from 2002 to 2004, Ainsworth began to experience severe headaches, which occasionally required her to take leave from work. (Am. Compl. ¶ 29.) In 2004, Ainsworth transferred to Algonkian Elementary School, where she worked as a Teacher’s Assistant until 2007. (Am. Compl. ¶ 30.) Ainsworth continued to experience severe headaches during this time, and occasionally took leave without pay as a result. (Id.) In 2008, Ainsworth accepted a Behavioral Assistant position at Rosa Lee Carter Elementary School, a promotion with a pay increase from $17 per hour to $25 per hour. (Am. Compl. ¶ 31.) Ainsworth received positive performance evaluations up to this time. (Am. Compl. ¶¶ 28-30.) The severe headaches persisted, and began to increase in intensity and frequency. (Am. Compl. ¶ 31.)
2. Ainsworth’s Medical Condition and FMLA Leave
Ainsworth was approved for FMLA leave from March to June 2008 due to the
In July 2008, Answorth underwent surgery to remove her brain tumor. (Am. Compl. ¶ 37.) She subsequently experienced post-operative complications and underwent emergency surgery in August 2008. (Id.) Answorth was approved for FMLA leave from August 27, 2008 to December 1, 2008. (Am. Compl. ¶ 38.) Ans-worth was granted permission to remain on a leave of absence from December 2, 2008 to January 27, 2009. (Am. Compl. ¶ 39.)
3. Ainsworth Works Part-Time for Remainder of 2008-09 School Year
Answorth was medically cleared to return to work part-time on January 5, 2009. (Am. Compl. ¶ 40.) Answorth discussed the status of her classroom position with Mary Kearney, Director of Special Education, and Delores Creech, an LCSB Personnel Specialist. (Am. Compl. ¶ 41.) Kearney and Creech assured Answorth that her position had not been filled, and that a long-term substitute teacher would hold the position until Answorth was medically cleared to work full-time. (Id.) In the meantime, Answorth was placed as an assistant to Kearney and performed secretarial work. (Am. Compl. ¶ 42.)
On March 25, 2009, Answorth was medically released to work in the classroom with only a restriction on the duration of her work. (Am. Compl. ¶43.) Ans-worth’s doctor recommended that she initially work one day per week and gradually increase her workload. (Id.) The goal was for Answorth to reach full-time status after four months. (Id.)
Answorth asked Kearney and Creech if she could return to the classroom position at Rosa Lee Carter Elementary School. (Am. Compl. ¶ 44.) Both told her that she could not return to the classroom position during the middle of the school year because the children were already in a comfortable routine with the long-term substitute. (Id.) Answorth continued to work as an assistant to Kearney and performed secretarial work for the remainder of the academic year. (Am. Compl. ¶ 44.)
During the spring and summer of 2009, Answorth asked Kearney and Creech on several occasions whether she would be returning to a classroom position for the 2009-10 school year. (Am. Compl. ¶ 45.) Each time Answorth asked, Kearney and Creech assured her that she would return to the classroom position. (Id.)
In June 2009, Answorth spoke with Creech and again asked about returning to the classroom position. (Am. Compl. ¶ 46.) This time, Creech told Answorth that her classroom position had been filled, and that she would need to find another position for the next academic year. (Id.) Answorth was also informed that her salary would decrease from $25 per hour to $17 per hour. (Am. Compl. ¶ 47.) When Answorth protested the salary decrease and told Creech that they “can’t do this to [her],” Creech replied, “Well honey, we can, and we did.” (Id.)
Once Answorth was advised that her position had been filled, she began searching for an alternative position for the next school year. (Am. Compl. ¶ 48.) Answorth was in regular contact with Creech and Kearny in trying to locate another position. (Am. Compl. ¶¶ 48-49.)
Over the summer, Creech informed Ainsworth that she was being placed at Cool Spring Elementary School as a Teacher’s Assistant. (Am. Compl. ¶ 50.) Ainsworth told Creech and Kearney that she preferred to work with autistic children in a self-contained class, and not with emotionally disturbed children. (Am. Compl. ¶¶ 49-51.) Kearney informed Ainsworth that she is the person responsible for determining assignments. (Am. Compl. ¶ 51.)
Ainsworth was medically released to return to work full-time beginning August 21, 2009. (Am. Compl. ¶ 52.) In the summer of 2009, Ainsworth received a letter and contract stating that she would be working as a Teacher’s Assistant (Special Education) in an integrated class. (Am. Compl. ¶ 53.) Based on her conversations with Creech, Ainsworth had believed she would be working with autistic children in a self-contained class. (Id)
In the summer of 2009, Jill Broaddus, Principal at Cool Spring Elementary School, contacted Ainsworth by telephone and asked Ainsworth what type of children she wanted to work with. (Am. Compl. ¶ 54.) Ainsworth reiterated her desire to work with autistic children in a self-contained class, and not with emotionally disturbed children. (Id) During this conversation, Broaddus stated to Ainsworth, “Well, we get a lot of people like you.” (Am. Compl. ¶ 55.) When Ainsworth asked her to explain, Broaddus replied, “Oh, you know, people with issues.” (Id) Ainsworth interpreted Broaddus’s statement as referring to “problem” employees, or people who miss a lot of work. (Id) Ainsworth was surprised by this comment, given the positive performance evaluations she had received during her employment at LCSB. (Id) Broaddus ended the conversation by telling Ainsworth that she would take her preferences into consideration. (Am. Compl. ¶ 56.)
On the first day of the school year, Ainsworth learned that she would be working with emotionally disturbed children, despite her request to the contrary. (Am. Compl. ¶ 57.) Other teachers and teacher’s assistants received the assignments they requested. (Id)
At Cool Spring Elementary School, Ainsworth was given increased responsibilities — for example, preparing lesson plans for the class. (Am. Compl. ¶ 58.) However, Ainsworth received negative treatment from other teachers who were aware of her medical condition. (Am. Compl. ¶ 59.) Broaddus and Brian Peppiat, the Assistant Principal, had knowledge of Ainsworth’s brain tumor and subsequent surgeries and treatments, but had conferences with her regarding absences. (Am. Compl. ¶¶ 60-61.) Ainsworth reiterated that she had been diagnosed and treated for a brain tumor and that her treatments were continuing. (Am. Compl. ¶ 61.)
5. Negative Performance Evaluations, Continuing Medical Treatment, and Additional FMLA Leave
Thereafter, Ainsworth had meetings with Broaddus and Peppiat in which she was given negative feedback. (Am. Compl. ¶ 62.) Specifically, Ainsworth was told that she was not doing her job, that she was inconsistent with the children, that the children did not like her, and that she was failing to follow instructions. (Id.) Ainsworth contends that she was doing her job well, and that Broaddus and Peppiat’s statements to the contrary were false. (Id.)
On February 18, 2010, Broaddus presented Ainsworth with a memorandum concerning her -absences from work. (Am. Compl. ¶ 63.) The memorandum indicated that in addition to being out of work for thirty days during the 2009-10 school year,
According to Broaddus’s memorandum, Ainsworth had missed thirty days of work for medical reasons as of February 18, 2010. (Am. Compl. ¶ 67.) Ainsworth continued to receive medical treatment related to the removal of her brain tumor, and was excused from work on February 19, 2010, March 5 to 8, 2010, March 18 to 19, 2010, March 25 to 26, 2010, and April 7, 2010. (Id.) On April 9, 2010, Ainsworth received an “overall unsatisfactory” performance evaluation from Broaddus which indicated that Ainsworth was “not meeting [her] job requirements due to [her] frequent absences.” (Am. Compl. ¶ 68.) The performance evaluation also noted, however, that Ainsworth was “very organized and completes clerical tasks efficiently.” (Id.)
Ainsworth was approved for FMLA leave from April 12 to 30, 2010, so that she could receive nerve block injections to treat her frequent headaches. (Am. Compl. ¶ 70.) While Ainsworth was on leave, Broaddus told her that FMLA would no longer help her and that she should get “professional help” and apply for long-term benefits. (Am. Compl. ¶ 71.) Ainsworth was approved for additional FMLA leave from May 1 to 28, 2010 and June 1 to 17, 2010, which related to cervical nerve block treatment. (Am. Compl. ¶ 72.) Ainsworth took a leave of absence for the final four days of the school year, June 18 to 21, 2010. (Am. Compl. ¶ 73.) In total, Ainsworth took approximately eighty-nine days of leave during the 2009-10 school year due to health issues related to the brain tumor, subsequent surgeries, radiation treatments, and nerve block injections. (Am. Compl. ¶ 66.)
6. LCSB Declines to Offer Ainsworth an Employment Contract for the 2010-11 School Year
Following the April 9, 2010, performance evaluation, Creech assured Ainsworth multiple times that she would obtain another employment contract for the following school year. (Am. Compl. ¶ 74.) Nonetheless, Ainsworth received a letter from LCSB dated May 28, 2010, stating that her employment was terminated effective June 21, 2010. (Am. Compl. ¶ 76.) Ainsworth spoke with Creech, who confirmed that she was not receiving an employment contract based on her last performance evaluation. (Am. Compl. ¶ 78.)
B. Procedural History
Ainsworth initially filed suit on November 9, 2011. [Dkt. 1.] She subsequently filed an Amended Complaint on December 20, 2011. [Dkt. 3.] The Amended Complaint contains four counts: (1) FMLA interference (Count I); (2) FMLA retaliation (Count II); (3) ADA wrongful discharge and failure to accommodate (Count III); and (4) intentional infliction of emotional distress (“IIED”) against the Individual Defendants (Count IV)- LCSB and the Individual Defendants filed Motions to Dismiss on January 20, 2012. [Dkts. 11, 13.] Ainsworth filed two opposition briefs on January 31, 2012 [Dkts. 20, 21], to which LCSB and the Individual Defendants replied on February 3, 2012 [Dkts.
II. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss those allegations which fail “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.2008). A court reviewing a complaint on a Rule 12(b)(6) motion must accept well-pleaded allegations as true and must construe factual allegations in favor of the plaintiff. See Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994).
A court must also be mindful of the liberal pleading standards under Rule 8, which require only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8. While Rule 8 does not require “detailed factual allegations,” a plaintiff must still provide “more than labels and conclusions” because “a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted).
To survive a Rule 12(b)(6) motion, “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, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. However, “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to meet this standard, id., and a plaintiffs “[fjactual allegations must be enough to raise a right to relief above the speculative level....” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Moreover, a court “is not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 129 S.Ct. at 1949-50.
III. Analysis
A. Counts I and II: FMLA Claims
In Count I of the Amended Complaint, Ainsworth alleges that LCSB interfered with her substantive rights under the FMLA by failing to reinstate her to the same, or an equivalent, position following the conclusion of her FMLA leave in December 2008. In Count II, Ainsworth alleges that LCSB terminated her employment in retaliation for exercising her FMLA rights.
1. Liability of Individual Defendants
a. Whether the FMLA Permits Public Employees to be Held Individually Liable
The Individual Defendants first argue that the FMLA does not permit liability against public employees in their individual capacities. There is a split of authority as to whether public employees qualify as “employer[s]” and hence may be held individually liable under the FMLA. The Fifth and Eighth Circuits have concluded, based on the statutory text, that public employees may be sued in their individual capacities under the FMLA if they act directly or indirectly in the interest of their employer — for example, by exercising hiring and firing authority. See Modica v. Taylor, 465 F.3d 174, 184-87 (5th Cir.2006); Darby v. Bratch, 287 F.3d 673, 681 (8th Cir.2002). The Sixth and the Eleventh Circuits have reached the opposite conclusion. See Mitchell v. Chapman, 343 F.3d 811, 825-33 (6th Cir.2003); Wascura v. Carver, 169 F.3d 683, 685-87 (11th Cir.1999). The Fourth Circuit has yet to rule on this issue, see Jones v. Sternheimer, 387 Fed.Appx. 366, 369 (4th Cir.2010) (recognizing that the issue is an open question, and expressing no opinion on the viability of [plaintiffs] claim), while district courts within the Fourth Circuit are split. See Weth v. O’Leary, 796 F.Supp.2d 766, 776-77 (E.D.Va.2011), Sheaffer v. Cnty. of Chatham, 337 F.Supp.2d 709, 727-29 (M.D.N.C.2004), Cantley v. Simmons, 179 F.Supp.2d 654, 657-58 (S.D.W.Va.2002) and Knussman v. State of Maryland, 935 F.Supp. 659, 664 (D.Md.1996) (public employees can be individually liable under the FMLA) with Sadowski v. U.S. Postal Serv., 643 F.Supp.2d 749, 757 (D.Md.2009), Miller v. Cnty. of Rockingham, No. 5:06cv00053, 2007 WL 990135, at *4 (W.D.Va. Mar. 30, 2007) and Keene v. Rinaldi, 127 F.Supp.2d 770, 777-78 (M.D.N.C.2000) (public employees cannot be held individually liable under the FMLA). The majority view appears to be that public employees may be individually liable under the FMLA. See Weth, 796 F.Supp.2d at 776 (citations omitted).
The Court is persuaded by the majority view, and holds that public employees may be sued in their individual capacities for alleged violations of the FMLA. In analyzing this issue, the Court is mindful that “the beginning point must be the language of the statute.” Ramey v. Dir., Office of Workers’ Comp. Programs, 326 F.3d 474, 476 (4th Cir.2003) (citation omitted). The Court must presume that when Congress writes a statute, it means what it says and says what it means. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992).
The text of the FMLA provides that the term “employer”:
(i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;
(ii) includes—
*973 (I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and
(II) any successor in interest of an employer;
(iii) includes any “public agency,” as defined in section 203(x) of this title; and
(iv) includes the Government Accountability Office and the Library of Congress.
29 U.S.C. § 2611(4)(A).
The FMLA plainly includes in the definition of employer “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” 29 U.S.C. § 2611(4)(A)(ii)(I).
The Court is unconvinced by the reasoning of those courts that have held otherwise. Some of these courts have pointed out that the individual liability provision and the public agency provision are located in two distinct clauses, 29 U.S.C. §§ 2611(4)(A)(ii)(I) and (iii), respectively, which they believe compels the interpretation that the two clauses are mutually exclusive. See Mitchell, 343 F.3d at 830; Sadowski, 643 F.Supp.2d at 755. The use of the conjunctive word “and” after clause (iii), however, demonstrates precisely the opposite — namely, that the term “employer” can include both a public agency and individuals who act, directly or indirectly, in the interest of a public agency. Weth, 796 F.Supp.2d at 777; see also Modica, 465 F.3d at 185 (“Congress’s use of the word “and” following clause (iii) suggests that there is some relationship between clauses (i)-(iv).”)
Courts subscribing to the minority view have also concluded that an interpretation that permits individual liability for public employees renders other provisions of the statute superfluous and creates several “oddities.” See, e.g., Mitchell, 343 F.3d at 831; Sadowski, 643 F.Supp.2d at 755-56. Each supposed oddity or superfluity has, however, been persuasively refuted by other courts.
First, 29 U.S.C. § 2611(4)(B), which provides that “a public agency shall be considered to be a person engaged in commerce or in an industry or activity affecting commerce,” is not rendered superfluous by the majority view. It is true that the commingling of “employer” in 29 U.S.C. § 2611 (4)(A)(i) (“employer” means “any person engaged in commerce or in any industry or activity affecting commerce”) with “public agency” in § 2611 (4) (A) (iii), of course, yields the following: a public agency is “any person engaged in commerce or in any industry or activity affecting commerce.” See Sadowski, 643 F.Supp.2d at 756. Even so, 29 U.S.C. § 2611(4)(B) is not superfluous — rather, it acts to relieve
Second, the majority view does not create an “absurdity” by commingling other clauses — namely, the successor-in-interest provision, 29 U.S.C. § 2611(4)(A)(ii)(II) and the Government Accountability Office (“GAO”) and Library of Congress provision, § 2611(4)(A)(iv). See Mitchell, 343 F.3d at 831 (arguing that the majority interpretation “implies that the FMLA extends specific protection to employees of the GAO and the Library of Congress from future successors in interest.... [I]t is an exercise in absurdity to consider that the FMLA sought to protect employees of two long-standing federal entities from threats posed by any future successors in interest”). Importantly, Section 2611(4)(A)(iv) was only included in the statute by a 1995 amendment. See Congressional Accountability Act of 1995, Pub.L. 104-1, § 202, 1995 U.S.C.C.A.N. (109 Stat. 9). That the amendment had an unanticipated effect on the statute as enacted should not change the “straightforward language of the clauses” with which the Court is presently concerned. Hewett, 421 F.Supp.2d at 820-21.
In short, a plain reading of the statute indicates that public employees who act directly or indirectly in the interests of their employer may themselves be considered “employers” subject to suit in their individual capacities under the FMLA. See Weth, 796 F.Supp.2d at 777. Accordingly, the Court concludes that the Individual Defendants may be liable in their individual capacities under the FMLA.
b. Whether the Amended Complaint Alleges that the Individual Defendants Possessed Sufficient Control over the Terms of Ainsworth’s Employment
The Individual Defendants next argue that even if the FMLA permits individual liability for public employees, the Amended Complaint fails to demonstrate that they possessed sufficient authority for them to be sued in their individual capacities.
2. FMLA Interference Claim
The basis of Ainsworth’s interference claim is LCSB’s failure to reinstate her to her classroom position following the expiration of her FMLA leave in December 2008. (Am. Compl. ¶¶ 89-90.) Instead, LCSB allegedly assigned Ainsworth part-time secretarial work for the remainder of the 2008-09 school year. (Am. Compl. ¶¶ 42-44.) The FMLA prohibits employers from interfering with the ability of employees to exercise their substantive (or “prescriptive”) rights under the FMLA. See 29 U.S.C. § 2615(a)(1). To state a claim of interference with FMLA rights, the plaintiff must establish that “(1) she was an eligible employee, (2) the defendant was an employer as defined under the FMLA, (3) she was entitled to leave under the FMLA, (4) she gave the employer notice of her intention to take leave, and (5) the employer denied the employee FMLA benefits to which she was entitled.” Bullock v. Kraft Foods, Inc., No. 3:11cv36, 2011 WL 5872898, at *4 (E.D.Va. Nov. 22, 2011) (citing Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir.2006)). Defendants argue that Ainsworth does not adequately plead the fifth element given her failure to return to work after expiration of FMLA leave in December 2008 and her physical inability to perform the essential functions of her position due to continued health issues. (LCSB Mem. at 4-5.) For the following reasons, the Court agrees.
Under the FMLA, eligible employees are entitled to a total of twelve workweeks of leave during any twelve-month period due to a serious health condition that makes the employee unable to perform the functions of her position. 29 U.S.C. 2612(a)(1)(D). The FMLA also provides that an employee who takes FMLA leave shall be entitled, on return from such leave “to be restored by the employer to the position of employment held by the employee when the leave commenced,” id. § 2614(a)(1)(A), or “to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment, id. § 2614(a)(1)(B). However, an employee who remains “unable to perform an essential function of the position” once her FMLA leave ends is not entitled to restoration or another position. 29 C.F.R. § 825.216(c). Thus, an employer does not violate the FMLA when it fails to reinstate an employee who is physically unable to return to work at the conclusion of the twelve-week period of FMLA leave. See Penn v. Cnty. of Fairfax, No. 06cv1449, 2008 U.S. Dist. LEXIS 109007, at *9 (E.D.Va. Feb. 1, 2008) (granting summary judgment in favor of employer that terminated employee who was physically unable to return to work at the end of FMLA leave), aff'd 289 Fed.Appx. 648 (4th Cir.2008) (unpublished); Rodriguez v. Smithfield Packing Co., Inc., 545 F.Supp.2d 508, 523 (D.Md.2008) (citing Edgar, 443 F.3d at 513) (“[I]nability to work at the end of the twelve-week period bars relief [under the FMLA] because any prior violation caused no harm.”).
In sum, it is clear from the allegations in the Amended Complaint that Ainsworth did not, and was physically unable to, return to work upon expiration of her FMLA leave. Consequently, LCSB was under no obligation to reinstate her to her former, or an equivalent, position.
3. FMLA Retaliation Claim
Ainsworth also alleges that LCSB violated the FMLA by terminating her in retaliation for taking FMLA leave. (Am. Compl. ¶ 102.) In addition to providing substantive (or “prescriptive”) rights to unpaid leave in certain situations, the FMLA also provides proscriptive rights “that protect employees from discrimination or retaliation for exercising their substantive rights under the FMLA.” Yashenko v. Harrah’s N.C. Casino Co., 446 F.3d 541, 546 (4th Cir.2006). To state an FMLA retaliation claim, a plaintiff must establish that: (1) she engaged in a protected activity, (2) her employer took an adverse employment action against her, and (3) the adverse employment action was causally connected to the plaintiffs protected activity. Id. at 551 (citation omitted).
Here, there is no dispute that Ainsworth engaged in a protected activity by requesting FMLA leave. Ainsworth also suffered an adverse employment action when LCSB declined to offer her an employment contract for the 2010-11 school year. Courts confronted with FMLA retaliation claims have imported the definition of “adverse employment action” used in the Title VII context. See Payne v. Fairfax Cnty., No. 1:05cv1446, 2006 WL 3196545, at *4 (E.D.Va. Nov. 1, 2006). Adverse employment actions are those that negatively impact the terms, conditions, or benefits of employment, id., termination being the quintessential example, see Yashenko, 446 F.3d at 551 (no dispute that termination constituted an adverse employment action). That Ainsworth’s termination arose by way of non-renewal of an employment contract is of no consequence. See Leibowitz v. Cornell Univ., 584 F.3d 487, 501 (2d Cir.2009) (“An employee seeking a renewal of an employment contract, just like a new applicant or a rehire after a layoff,
Defendants focus on the third element of Ainsworth’s retaliation claim — the causal connection between protected activity and the adverse employment action. According to Defendants, Ainsworth’s absenteeism during the 2010-11 school year, as alleged in the Amended Complaint, demonstrates that it had a legitimate basis for deciding not to renew her employment contract. Defendants argue that other facts alleged in the Amended Complaint, including LCSB’s continuing employment of Ainsworth following her FMLA leave in 2008, make retaliatory animus implausible. The Court finds it premature to resolve these issues at this stage of the litigation. Ainsworth’s allegations adequately establish a causal connection between her termination and her FMLA leave for purposes of surviving these Motions to Dismiss. For one, temporal proximity between the adverse employment action and the protected activity has been deemed sufficient for purposes of establishing a prima facie case of causality. Yashenko, 446 F.3d at 551; Payne, 2006 WL 3196545, at *5. Here, Ainsworth’s FMLA leave concluded on June 17, 2010, and her termination was effective June 21, 2010. Pursuant to the low threshold articulated in the Fourth Circuit, this connection sufficiently establishes a prima facie showing of causality. Ainsworth also alleges that she was treated unfavorably as a result of her FMLA leave. Specifically, she alleges that, unlike other staff, she did not receive her preferred assignment for the 2010-11 school year and that she received negative feedback contrary to her actual performance in the classroom. (Am. Compl. ¶¶ 57, 62.) These allegations, accepted as true, raise Ainsworth’s right to relief on her retaliation claim above the speculative level.
The Court also rejects Defendants’ argument that because Ainsworth failed to return to work upon expiration of her FMLA leave in June 2010, non-renewal of her employment contract effected no harm upon her. The problem with this argument is that it conflates Ainsworth’s retaliation claim with her interference claim. “A retaliation claim under the FMLA differs from an interference claim under the FMLA in that the interference claim merely requires proof that the employer denied the employee his entitlements under the FMLA, while the retaliation claim requires proof of retaliatory intent.” Bosse v. Baltimore Cnty., 692 F.Supp.2d 574, 588 (D.Md.2010). The FMLA is not a strict liability statute and therefore employees seeking to recover on an interference claim must establish that the employer’s violation caused them harm. Edgar, 443 F.3d at 507-08. Under the retaliation theory, in contrast, “[t]he employer’s motive is relevant because retaliation claims impose liability on employers that act against employees specifically because those employees invoked their FMLA rights.” Id. at 508 (emphasis in original).
It is true, as discussed above, that once an employee exceeds the duration of her FMLA leave, the employer is not obligated by FMLA to keep that position open or reinstate the employee upon her return. See, e.g., Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 784-85 (6th Cir.1998). That an employer may have a legitimate basis for its employment decision does not, however, provide it with a complete defense to a “proscriptive” retali
Finally, the Individual Defendants argue that Ainsworth does not sufficiently identify which individuals were involved in terminating her employment. (Individual Defs.’ Mem. at 9.) The Court disagrees. At this stage of the litigation, Ainsworth’s allegations adequately demonstrate that each of the Individual Defendants engaged in conduct which — viewed in a light most favorable to Plaintiff — qualify as retaliatory. For these reasons, dismissal of Ainsworth’s retaliation claim is inappropriate.
B. Count IIP. ADA Claims
In Count III, Ainsworth alleges violations of the ADA. The ADA prohibits discrimination “against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Although organized under one count, Ainsworth brings two separate claims under the ADA: (1) a claim for wrongful discharge and (2) a claim for failure to accommodate. LCSB argues that Ainsworth fails to state a claim under either theory.
1. Wrongful Discharge
In order to state a claim for ADA wrongful discharge, a plaintiff must demonstrate that (1) she is within the ADA’s protected class; (2) she was discharged; (3) at the time of her discharge, she was performing the job at a level that met her employer’s legitimate expectations; and (4) her discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination. Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 702 (4th Cir.2001). One falls within the ADA’s protected class if she is “a qualified individual with a disability.” Id. (citation omitted). LCSB spends most of its energy arguing that Ainsworth’s ADA wrongful discharge claim fails because she was not a qualified individual with a disability. Under the ADA, a qualified individual is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). According to LCSB, Ainsworth was not a qualified individual because she could not perform an essential function of her job— i.e., attendance at work.
“In addition to possessing the skills necessary to perform the job in ques
Here, Ainsworth was released to return to work full time without restrictions on August 21, 2009 (Am. Compl. ¶ 52), but continued to miss work on a regular basis. Before February 18, 2010, Ainsworth missed thirty days of work for medical reasons and was excused from work by her doctors on February 19, 2010, March 5 to 8, 2010, March 18 to 19, 2010, March 25 to 26, 2010, and April 7, 2010. (Am. Compl. ¶ 67.) Ainsworth took FMLA leave from April 12 to May 28, 2010 and June 1 to 17, 2010, and took additional, non-FMLA leave from June 18 to 21, 2010. (Am. Compl. ¶¶ 72-73.) Ainsworth also pleads that she was to continue nerve block treatments until August 2011. (Am. Compl. ¶ 80.)
While it is true that regular attendance is a necessary element of most jobs, it is also true that modified work schedules can constitute a form of reasonable accommodation. Leschinskey v. Rectors & Visitors of Radford Univ., No. 7:11cv189, 2011 WL 5029813, at *2 (W.D.Va. Oct. 24, 2011) (“The term reasonable accommodation may include ... part-time or modified work schedules.”) (quoting 42 U.S.C. § 12111(9)). And, although an employer need not “wait indefinitely” for an employee’s medical conditions to be corrected, Myers v. Hose, 50 F.3d 278, 283 (4th Cir.1995), many courts have held that “a period of leave can in some circumstances be a reasonable accommodation required of an employer under the ADA,” Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 652 (1st Cir.2000) (emphasis in original); Kitchen v. Summers Continuous Care Ctr., LLC, 552 F.Supp.2d 589, 595 (S.D.W.Va.2008).
Whether periods of leave may be considered a reasonable form of accommodation presents a “troublesome problem, partly because of the oxymoronic anomaly it harbors” and also “because of the daunting challenge of line-drawing it presents.” Garcia-Ayala, 212 F.3d at 651. Indeed, courts have held that this issue is generally a question of fact, Pandazides v. Va. Bd. of Educ., 13 F.3d 823, 833 (4th Cir.1994), and is more appropriately addressed at summary judgment, see Shannon v. City of Philadelphia, No. 98-5277, 1999 WL 126097, at *3 (E.D.Pa. Mar. 5, 1999) (“Whether granting the additional leave requested was a reasonable accommodation and whether the [defendant] could provide it to [plaintiff] without undue hardship are factual inquiries that are not properly decided in the context of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).”).
Although Ainsworth missed substantial time at work, it is at least plausible at this stage of the litigation that her leaves of absence qualify as a form of reasonable accommodation. Notably, Ainsworth was a teaching assistant and not a teacher, which suggests that a modified work schedule may have been a workable arrangement. Ainsworth also alleges that despite her absences, she performed well in the classroom and received increased responsibility as a result. (Am. Compl. ¶ 58.) For these reasons, the Court finds it premature to conclude that Ainsworth is not a “qualified employee” at this time.
LCSB’s remaining arguments are likewise unavailing. Contrary to LCSB’s as
2. Failure to Accommodate
An ADA failure to accommodate claim consists of the following elements: (1) the employee was an individual who had a disability within the meaning of the statute; (2) the employer had notice of the disability; (3) with reasonable accommodation the employee could perform the essential functions of the position; and (4) the employer refused to make such accommodations. Rhoads v. Fed. Deposit Ins. Corp., 257 F.3d 373, 387 n. 11 (4th Cir.2001). LCSB again argues that Ainsworth is not a qualified individual and that no reasonable accommodation would have enabled her to perform the essential functions of her position. These arguments fail for the reasons stated in connection with Ainsworth’s wrongful discharge claim.
In addition, however, LCSB argues that Ainsworth’s failure to accommodate claim should be dismissed because she fails to allege that she requested a reasonable accommodation. (LCSB Mem. at 10.) In response, Ainsworth points to her requests for FMLA leave so she could receive nerve block injections to the back of her head and neck. (Opp. to LCSB Mot. to Dismiss [Dkt. 20] at 21.) The problem for Ainsworth is that LCSB granted these periods of FMLA leave. Indeed, the Amended Complaint does not point to a single instance where LCSB denied Ainsworth leave. To the extent Ainsworth’s claim is premised on her termination (i.e., so LCSB would no longer have to grant leave), such a theory conflates failure to accommodate with wrongful discharge. See Vlasek v. Wal-Mart Stores, Inc., No. H07-0386, 2007 WL 2402183, at *5 (S.D.Tex. Aug. 20, 2007) (“It is generally accepted that a failure to ac
While Ainsworth is correct that a plaintiff need not use “magic words” in making a request, the plaintiff must make clear to the employer that she wanted assistance for her disability. Parkinson v. Anne Arundel Med. Ctr., 79 Fed.Appx. 602, 604-05 (4th Cir.2003) (unpublished) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir.1999)). Nowhere in the Amended Complaint does Ainsworth allege that she requested some form of accommodation other than leaves of absence.
Lastly, Ainsworth argues that LCSB had an affirmative duty to engage in “a 'flexible, interactive dialogue with [her] in a good faith effort to discuss and exhaust reasonable accommodations. (Opp. to LCSB Mot. to Dismiss at 22 (citing 29 C.F.R. § 1630.2(o)(3)).) “However, an employee cannot base a reasonable accommodation claim solely on the allegation that the employer failed to engage in an interactive process.” Walter v. United Airlines, Inc., 232 F.3d 892, 2000 WL 1587489, at *4 (4th Cir. Oct. 25, 2000) (unpublished table decision) (citing Rehling v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir.2000)). “Rather, the employee must demonstrate that the employer’s failure to engage in the interactive process resulted in the failure to identify an appropriate accommodation for the disabled employee.” Id.
Here, Ainsworth does not allege that LCSB failed to engage in such a process with her. And, as noted above, Ainsworth does not allege that she requested a reasonable accommodation other than leave nor does she allege that such a request was ever denied. The failure to make these allegations warrants dismissal. See Morgan v. Rowe Materials, LLC, No. 3:08cv576, 2009 WL 1321514, at *3 (E.D.Va. May 11, 2009) (dismissing failure to accommodate claim where plaintiff failed to allege whether he sought reasonable accommodations and whether such accommodations were denied). Accordingly, Ainsworth’s failure to accommodate claim is dismissed.
C. Count TV: Intentional Infliction of Emotional Distress Claim
In Count IV of the Amended Complaint, Ainsworth alleges a state-law claim for IIED.
The Fourth Circuit held in Hatfill v. N.Y. Times Co., 416 F.3d 320, 337 (4th Cir.2005), that under Federal Rule of Civil Procedure 8 a plaintiff is not required to plead IIED with the particularity usually required under Virginia law. Nevertheless, even under the Hatfill notice pleading standard, Ainsworth has failed to establish an IIED claim. In support of her IIED claim, Ainsworth alleges that certain of the Individual Defendants branded her a “problem” employee with “issues,” criticized her work performance, and otherwise treated her negatively. While this conduct may have upset Ainsworth, it simply does not rise to the level of “atrocious” conduct that goes “beyond all possible bounds of decency” and is “utterly intolerable in a civilized community,” as required by Virginia law. Russo, 241 Va. at 27, 400 S.E.2d 160. Moreover, courts applying Virginia law have regularly recognized that it is especially difficult to establish IIED in the employment context. See, e.g., Musselman v. Merck & Co., Inc., No. 1:06cv845, 2006 WL 2645174, at *5-6 (E.D.Va. Sept.13, 2006) (holding that series of employment actions culminating in termination failed to give rise to an IIED claim); Burke v. AT & T Technical Servs. Co., Inc., 55 F.Supp.2d 432, 441 (E.D.Va.1999) (holding that a demotion and termination allegedly based on racial discrimination, while “insidious and unacceptable,” did not constitute outrageous conduct); Beardsley v. Isom, 828 F.Supp. 397, 401 (E.D.Va.1993) (holding that actions allegedly taken in retaliation for the plaintiffs complaints of sexual harassment did not rise to the requisite level of severity), aff'd sub nom., Beardsley v. Webb, 30 F.3d 524 (4th Cir.1994). Accordingly, the Court dismisses Ainsworth’s IIED claim.
IV. Conclusion
For these reasons, the Court will grant in part and deny in part LCSB’s Motion and grant in part and deny in part the Individual Defendants’ Motion.
An appropriate Order will issue.
ORDER
For the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that:
(1) Defendant Loudon County School Board’s (“LCSB”) Motion to Dismiss [11] is GRANTED IN PART and DENIED IN PART;
(2) Defendants Paul Webb, Jill Broaddus, Mary Kearney, Delores Creech, and Brian Peppiat’s (the “Individual Defendants”) Motion to Dismiss [13] is GRANTED IN PART and DENIED IN PART;
(3) LCSB’s Motion is GRANTED as to Count I (FMLA Interference) and the portion of Count III (ADA) asserting failure to accommodate and otherwise DENIED;
(4) the Individual Defendants’ Motion is GRANTED as to Count I (FMLA Interference), Count III (ADA), and Count IV (Intentional Infliction of Emotional Distress), and otherwise DENIED;
(5) Count I and Count IV are DISMISSED WITHOUT PREJUDICE;
(6) the portion of Count III asserting failure to accommodate as to LCSB is DISMISSED WITHOUT PREJUDICE;
(7) Count III as to the Individual Defendants is DISMISSED WITH PREJUDICE;
(8) Plaintiff Kristin Ainsworth shall have ten (10) days from the date of entry of this Order to file a Second Amended Complaint, if any;
(10) the Clerk of the Court shall forward copies of this Order and the accompanying Memorandum Opinion to all counsel of record.
. In the Amended Complaint, the headings for the four counts and the prayer for relief also identify "Mary Anne Hardebeck” as a defendant. This person, however, is not identified in the caption or the "parties” section of the Amended Complaint (nor is she referenced anywhere else). Plaintiff acknowledges that the references to Mary Anne Hardebeck are typographical errors, and that she is not a defendant in this case.
. In analyzing these two types of claims, courts, including the Fourth Circuit, have described the FMLA as including both prescriptive and proscriptive rights. See Yashenko v. Harrah’s N.C. Casino Co., LLC, 446 F.3d 541, 546 (4th Cir.2006). The substantive rights provided by the FMLA are prescriptive, "set[ting] substantive floors for conduct by employers, and creating entitlements for employees.” Id. (alteration in original) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir.1998)). Interference claims (also known as "entitlement” or “restoration” claims) involve alleged violations of these prescriptive rights, id., and arise under 29 U.S.C. § 2615(a)(1), which provides that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise-of or the attempt to exercise, any right provided under this subchapter.” In addition to prescriptive rights, the FMLA provides proscriptive rights, protecting employees from discrimination or retaliation for exercising their substantive rights under the FMLA. Yashenko, 446 F.3d at 546 (citations omitted). Retaliation claims (also known as "discrimination” claims) involve alleged violations of proscriptive rights, id., and arise under 29 U.S.C. § 2615(a)(2), which provides that "[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.”
. Courts finding individual liability under the FMLA have frequently looked to the Fair Labor Standards Act ("FLSA”) because the definitions of "employer” in the two acts are similar and because the FMLA's implementing regulations reference this similarity. See Weth, 796 F.Supp.2d at 776 (citing 29 C.F.R. § 825.104(d)). Most courts, including the Fourth Circuit, have taken the position that individuals can be liable for FLSA violations provided that they have sufficient control over the conditions and terms of a plaintiff's employment. See Brock v. Hamad, 867 F.2d 804, 808 n. 6 (4th Cir.1989) (explaining that an individual defendant with the power to hire and direct employees was an "employer” under the FLSA).
. At oral argument, defense counsel also argued that pursuant to special rules applicable to public schools, LCSB was Ainsworth's “employer” with exclusive hiring and firing authority, and that, as a matter of law, the Individual Defendants lacked such authority. Other courts have rejected the argument that such "special rules” preclude individual liability under the FMLA in cases against public school boards and their employees. See, e.g., Fields v. Trollinger, No. 1:10cv296, 2011 WL 3422689, at *7-8 (W.D.N.C. Mar. 28, 2011), report and recommendation adopted, 2011 WL 3421489 (W.D.N.C. Aug. 4, 2011); Cooley v. Bd. of Educ. of the City of Chicago, 703 F.Supp.2d 772, 775 (N.D.Ill.2009).
. As Ainsworth notes in her opposition, these cases were decided on summary judgment. Numerous cases have, however, decided this issue on Rule 12(b)(6) motions. See, e.g., Peoples v. Langley/Empire Candle Co., No. 11-2469, 2012 WL 171340, at *3-4 (D.Kan. Jan. 20, 2012); Hofferica v. St. Mary Med. Ctr., 817 F.Supp.2d 569, 577-78 (E.D.Pa.2011); Coffman v. Robert J. Young Co., Inc., No. 3:10-1052, 2011 WL 2174465, at *3 (M.D.Tenn. June 1, 2011), report and recommendation adopted, 2011 WL 2416745 (M.D.Tenn. June 14, 2011); Fleck v. WILMAC Corp., No. 10-05562, 2011 WL 1899198, at *8 (E.D.Pa. May 19, 2011).
. That LCSB permitted Ainsworth to remain on leave of absence beyond her FMLA leave does not change this result. See Ackerman v. Beth Israel Cemetery Ass’n of Woodbridge, N.J., No. 09-1097, 2010 WL 2651299, at *1 (D.N.J. June 25, 2010) ("Employees who exceed the twelve weeks of leave the FMLA provides for stand to lose their entitlement to job restoration even if their employers provide additional, non-FMLA, leave.”) (internal quotation marks omitted).
. In the Amended Complaint, Ainsworth asserts her ADA claims against both LCSB and the Individual Defendants. In her opposition brief, she concedes that no cause of action exists against the Individual Defendants for ADA violations. (Opp. to Individual Defs.' Mot. to Dismiss [Dkt. 21] at 10.) Accordingly, Count III is dismissed with prejudice insofar as it is asserted against the Individual Defendants.
. The Court is exercising supplemental jurisdiction over Ainsworth’s IIED claim pursuant to 28 U.S.C. § 1367(a). In exercising supplemental jurisdiction over the state law claim, the Court must apply Virginia’s substantive law. Johnson v. Hugo’s Skateway, 974 F.2d 1408, 1416 n. 7 (4th Cir.1992); Brown v. Mitchell, 327 F.Supp.2d 615, 628 n. 27 (E.D.Va.2004).