Employment – Multiple discrimination claims are dismissed with prejudice

Where a former employee failed to plead facts making his claim for sex, religious or disability discrimination plausible, they were dismissed with prejudice.

Background

Plaintiff David Bychkov filed a multi-count complaint against his former employer, defendant NTT Data Federal Services, Inc., which has filed a motion to dismiss.

Amendment

Pursuant to Federal Rules of Civil Procedure 15(a), a party may amend its pleading once as a matter of course no later than 21 days after serving it, 21 days after a responsive pleading or 21 days after service of a motion under Rule 12(b), whichever is earlier. Defendant filed its motion to dismiss on Aug. 27, 2025. Plaintiff filed the amended complaint 22 days later. Although Rule 15(a)(2) allows for a party to amend its pleading with the opposing party’s written consent or the court’s leave, neither were sought or provided.

Plaintiff argues that the untimeliness is the result of a calendaring issue. Courts uniformly recognize, however that “ignorance of when a time period expires does not qualify as excusable neglect, nor a busy schedule, lack of diligence, inadvertence, or other manifestations of carelessness and laxity.” This alone is a basis to dismiss the amended complaint. Nonetheless, the Court addresses each of defendant’s arguments.

Timeliness

Plaintiff filed his EEOC charge on Jan. 27, 2025. Thus, any allegations of discrimination must stem from events occurring after April 2, 2024, 300 days before finalizing his EEOC claims. Plaintiff argues that the claims from Feb. 21, 2024, are sufficiently related to those occurring after April 2, 2024, and help provide background for the later claims.

But the amended complaint clearly intends to rely on those incidents to form the basis for his claim. Moreover, the continuing violation doctrine (which allows a claim alleging a broader pattern of discrimination) applies only to hostile work environment claims, which plaintiff does not assert.

The February 2024 allegations related to the false accusation and religious incident are time-barred, and plaintiff cannot prolong their lifespan by bootstrapping them to his continued employment. Thus, the discrete acts alleged before April 2, 2024, are time-barred and those allegations are dismissed.

Discrimination

Plaintiff has failed to plead facts sufficient to make a plausible claim because there are not factual allegations showing satisfactory job performance or different treatment from similarly situated employees outside the protected class. Moreover, there are no other facts alleged that support a plausible inference of sex or religious discrimination in relation to plaintiff’s termination. Accordingly, Count One will be dismissed.

ADA

Plaintiff rests his disability discrimination claim on three basic allegations: (i) he informed his employer about his condition in his interview; (ii) he informed Taylor that he received lidocaine injections and (iii) he was terminated on the same day as a medical appointment. But plaintiff fails to allege that any decisionmaker knew of his medical appointment or knew that his medical appointment was in connection with his alleged disability.

Moreover, plaintiff fails to identify any caselaw suggesting that terminating a plaintiff on the same day as a medical appointment alone suffices to establish disability discrimination. Judges have rejected similar claims.

There are no allegations evincing animus towards plaintiff based on his alleged disability, commentary regarding plaintiff’s medical appointments or any information suggesting that plaintiff’s termination was in any way connected to his alleged disability. Accordingly, Counts Two and Four will also be dismissed.

Whistleblower

Virginia Code § 40.1-27.3 requires a violation of this section to be brought “within one year of the employer’s prohibited retaliatory action.” Here, plaintiff was terminated on April 22, 2024, and filed his first complaint on May 8, 2025. Thus this claim is time barred.

Bowman

Plaintiff asserts that his Bowman claim is based on the public policy embodied in the Virginia Whistleblower Protection Act and on Virginia Code § 2.2-3011. But those statutes create their own private right of action. And “[n]umerous Virginia courts have found that ‘statutes containing their own remedy cannot also support a Bowman claim.’”

Declaratory judgment

Plaintiff seeks a declaratory judgment regarding the scope of his non-compete clause. Plaintiff does not allege that defendant has sought to enforce the non-compete, that defendant has threatened any litigation relating to the non-compete or that there is any actual controversy regarding the non-compete. Plaintiff has not established the existence of a controversy sufficient to establish a controversy under the Act.

Defendant’s motion to dismiss granted.

Bychkov v. NTT Federal Data Services, Inc., Case No. 1:25-cv-802, July 15, 2026. EDVA at Alexandria (Alston). VLW 026-3-298. 15 pp.

Full-Text Opinion