Virginia Lawyers Weekly VA Lawyers Weekly
Where a school principal alleged that the school board refused to transfer her to a school where her restrictive lung disease and asthma were not affected by environmental conditions, refused to let her work remotely, and instead transferred her to a school with similar environmental hazards, her disability discrimination and retaliation claims survived the school board’s motion to dismiss.
Background
In her amended complaint, Cheyrl R. Jordan alleges that the School Board of the City of Norfolk discriminated against her in violation of the Americans with Disabilities Act, or ADA (Count One); the Virginia Human Rights Act (Count Two) and Section 40.1-27.3 of the Code of Virginia (Count Three). Defendant has filed a motion to dismiss.
ADA discrimination
Plaintiff has alleged that she suffers from restrictive lung disease and asthma. Such physical impairments may substantially limit an individual’s respiratory
system within the meaning of the law. Plaintiff has further alleged that these impairments were enflamed by various environmental hazards at Sherwood Forest elementary school. Therefore, plaintiff has plausibly alleged that she has a qualifying disability under the ADA. And, at this stage in the proceedings, there is no question that plaintiff has met her burden to adequately plead that defendant was aware of her disability.
Next, at this juncture, the court finds that plaintiff has sufficiently alleged that remote work could allow her to perform all essential functions of school principal. Plaintiff has also sufficiently alleged that transfer to a school without environmental hazards would allow plaintiff to perform all essential functions of the job.
Plaintiff argues that Lindenwood elementary school had similar environmental hazards as Sherwood Forest such that her transfer to Lindenwood was not a reasonable accommodation. As such, the court finds that her request was effectively denied. Further, plaintiff has alleged that throughout the process, defendant has not met the ADA’s requirement that they engage in an interactive process.
ADA retaliation
Plaintiff has alleged that she engaged in two types of protected activity: (1) requesting accommodations for her disability and (2) filing an EEOC charge against defendant. Regarding an adverse employment action, it is plausible that defendant’s choice to reassign plaintiff to Lindenwood instead of Richard Bolling elementary school effectively foreclosed plaintiff’s opportunity to work in a safe and healthy environment within the district. Further, the decision allegedly exasperated plaintiff’s mental fatigue, resulting in a diagnosis of PTSD. Finally, plaintiff was transferred to Lindwood, instead of her proposed accommodations, a week after she filed her charge with the EEOC and made her request for an accommodation. The temporal proximity between the events thus supports the alleged causation.
VHRA
Defendant argues that plaintiff’s VHRA claim is procedurally defective because she has not received notice of a right to sue directly from FEPA. Plaintiff responds that the EEOC’s right-to-sue notice satisfied the Virginia statute’s requirements. The court finds that, even if the FEPA-EEOC work-sharing agreement controlled the plaintiff’s entire claims process, the EEOC right-to-sue notification did not also serve as FEPA’s right-to-sue notification. Accordingly plaintiff’s VHRA claim is procedurally defective because she has not met the VHRA requirement that a claimant obtain a right-to-sue notice from FEPA prior to filing her state law claim. This claim is dismissed without prejudice.
Retaliation
Plaintiff submits that she is entitled to damages because defendant retaliated against her for reporting a violation of law, as proscribed by Virginia Code § 40.1-27.3, which prohibits retaliation against an employee “[who] in good faith reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official.”
The court concludes that failing to provide a definition of employer in § 40.1-27.3 that includes the Commonwealth and other public bodies was an intentional omission by the General Assembly. Thus, § 40.1-27.3 is inapplicable to defendant because it is not an employer within meaning of the statute. Though the Supreme Court of Virginia has not squarely addressed the issue, at least two Virginia circuit courts have reached the same conclusion. This claim is dismissed with prejudice.
Defendant’s motion to dismiss granted in part, denied in part.
Jordan v. School Board of the City of Norfolk, Case No. 2:22-cv-167, Nov. 9, 2022. EDVA at Norfolk (Smith). VLW 022-3-505. 41 pp.
