Employment: Plaintiff waited long to assert ADA and Rehabilitation Act claims

Where the plaintiff failed to file suit within 90 days from the date his right-to-sue notice was uploaded to his case portal, his claims under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act were dismissed. Although the plaintiff contended he had a good faith belief that his filing window ran from when he “actually received” the notice, the Fourth Circuit has routinely upheld the rejection of the “actual receipt” argument.

Background

Michael Redwine brings this suit against The Rector and Visitors of the University of Virginia, or UVA, and three of its employees, Sue Galloway, Reba Childress and Jill Melton. He alleges defendants violated: (i) the Americans with Disabilities Act, or ADA; (ii) the Family and Medical Leave Act, or FMLA; (iii) Section 504 of the Rehabilitation Act and (iv) the Virginia Fraud and Abuse Whistle Blower Protection Act, or FAWPA. Defendants move to dismiss the amended complaint for failure to state a claim.

Timeliness

Under both the Rehab Act and the ADA, a plaintiff must file suit within 90 days of receiving a right-to-sue letter from the Equal Employment Opportunity Commission, or EEOC. Here, the EEOC uploaded Redwine’s right-to-sue notice to his case portal on Dec. 29, 2024. Redwine asserts that he “attempted to access the EEOC portal but encountered login errors.” Knowing his sister had access to his portal, he asked her to forward him the documents. According to Redwine, because his sister was traveling “for the holidays, she was unable to [send him the letter] until January 4, 2025.”

Redwine contends that he had a “good faith [belief] that his filing window ran from January 4, 2025,” based on when he “actually received” the notice from his sister. The Fourth Circuit, however, has routinely upheld the rejection of the “actual receipt” argument.

Moreover, while Redwine contends he did not receive his right-to-sue letter from his sister until six days after it was uploaded to his case portal, he still had 84 days to file his complaint within the statutory deadline. Because Redwine has offered no facts to support equitable tolling of the statutory deadline, his filing deadline must be calculated from when his EEOC right-to-sue letter was posted, not when he received it from his sister.

As such, his complaint was not filed within 90-days of receiving the EEOC notification, and therefore, untimely. Accordingly, the court dismisses Counts One and Two of the amended complaint with prejudice.

FMLA

Redwine brings both interference and retaliation claims against Gallow, Childress and Melton in their individual capacities. Turning first to Childress and Melton, Redwine fails to set forth a single fact suggesting their involvement in the alleged inference of his FMLA rights.

Turning next to the interference claim against Galloway, the sole allegation Redwine asserts pertains to the March 9, 2022, meeting where she allegedly told him that his ADA accommodations request would be granted if he returned to work full-time. Redwine conclusively asserts that “this conversation” “supports [his] interference claim,” but fails to allege any facts as to how this conversation interfered with his FMLA rights, or how such alleged interference caused him harm.

To the extent Redwine alleges that “UVA” misreported his return date and would not provide him FMLA records, these allegations, once again, fail to assert who engaged in these actions or how this alleged interference caused him harm. Redwine has failed to plead sufficient facts for his FMLA interference claim to survive this motion to dismiss.

Redwine’s retaliation claim suffers from the same deficiencies as his interference claim. Because he has failed to allege that Galloway, Childress or Melton “acted personally” to “cause the alleged violation,” Redwine’s claim cannot survive the motion to dismiss.

FAWPA

Redwine conclusively alleges the defendants: (i) “[e]xercised direct supervisory authority over [him]”; (ii) “[r]eceived [his] reports of ADA, FMLA, and policy violations” and (iii) “[t]ook or participated in adverse employment actions shortly after those disclosures.” These conclusory allegations fail to establish whether it was Galloway, Childress or Melton who “discharge[d], threaten[ed], or otherwise discriminate[d] or retaliate[d]” against him in violation of Virginia’s FAWPA.

Without more specific allegations, the court concludes that Redwine has failed to plead sufficient facts to survive the motion to dismiss as to Count Four. Accordingly, the court dismisses Redwine’s FAWPA claim without prejudice.

Defendants’ motion to dismiss granted.

Redwine v. The Rector and Visitors of the University of Virginia, Case No. 3:25-cv-00017, Nov. 26, 2025. WDVA at Charlottesville (Moon). VLW 025-3-489. 9 pp.