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Disability discrimination and retaliation claims go forward.

Byline: Virginia Lawyers Weekly

Though claims were narrowed, a suit by a former employee of the Virginia Board for People with Disabilities who has cerebral palsy alleging her supervisors unfairly scrutinized, criticized and micromanaged her; and promoted a non-disabled person over her and finally terminated her employment, can go forward.

Background

Kara White, who has cerebral palsy, worked part-time for the board from 2007 until February, 2018, when she was fired for "unsatisfactory job performance."

White's amended complaint alleges that the defendants failed to promote her and fired her because of her disability in violation of the Rehabilitation Act and the Americans with Disabilities Act. White also claims that the defendants retaliated against her for her advocacy for people with disabilities in violation of the Rehabilitation Act and the ADA.

The defendants have moved to dismiss White's Rehabilitation Act and ADA claims for failure to state a claim under Rule 12(b)(6) and her ADA claim for lack of subject matter jurisdiction under Rule 12(b)(1).

Subjectmatterjurisdiction

State sovereign immunity protects the state from actions at law for damages and from suits in equity to restrain or compel governmental action. This immunity extends to state agents and state instrumentalities, like the board.

White argues that the Ex parte Young exception applies to her ADA claims. To take advantage of this narrow exception, a plaintiff must properly characterize the relief sought as prospective and injunctive in nature. Determining whether a suit may proceed under Ex parte Young requires only that courts "conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective."

In this case, White only seeks compensatory damages under her Rehabilitation Act claims. For her ADA claims, she seeks reinstatement or front pay, a declaratory judgment, injunctive relief and attorney's fees and costs. Because White properly seeks prospective relief for her ADA claims, the court has subject matter jurisdiction over those claims. Accordingly, the court will deny the defendants' motion to dismiss for lack of subject matter jurisdiction.

Failuretostateaclaim

White alleges that the defendants violated the ADA by discriminating against her in two ways: failure to promote and wrongful termination. The defendants argue that White does not allege facts showing that their decisions not to promote her and to fire her raise an inference of unlawful discrimination. White alleges that the defendants promoted a less qualified employee without a disability and that she received positive performance reviews during her time at the board. These allegations allow the court to draw the reasonable inference that the defendants failed to promote White because of her disability.

To support her wrongful termination claim, White alleges that she received positive performance reviews during her time at the board and cites multiple incidents when the defendants unfairly scrutinized, criticized and micromanaged her. Despite her qualifications and positive job reviews, the defendants fired her. Taken together, White's allegations "warrant a reasonable inference of unlawful discrimination, allowing her claim of discriminatory termination to survive at this stage of the proceedings."

To state a claim for retaliation under the ADA, a plaintiff must allege sufficient facts showing that (1) she engaged in protected conduct; (2) she suffered an adverse employment action and (3) "a causal link exists between the protected conduct and the adverse action." The defendants dispute the first and third prongs.

White says that she advocated for larger font sizes for PIP participants and opposed the board's liability waiver. Because White alleged that she "oppos[ed] discriminatory practices in the workplace," she adequately pleads that she engaged in protected oppositional conduct. And, by showing "a close temporal relationship" between engaging in protected conduct and the adverse employment actions, White has alleged the required causal link to survive a motion to dismiss. White, therefore, pleads sufficient facts to support her retaliation claim under the ADA. Moreover because the Rehabilitation Act and the ADA have identical anti-retaliation provisions, the court will also deny the motion to dismiss as to her retaliation claim under the Rehabilitation Act.

White alleges that the defendants violated the Rehabilitation Act by discriminating against her in two ways: failure to promote and wrongful termination. Unlike the ADA, the Rehabilitation Act requires plaintiffs to plead sufficient facts that would allow the court to infer "discrimination 'solely by reason of' disability." White's allegations fall short of the Rehabilitation Act's stringent causation standard.

Motions to dismiss granted in part, denied in part.

White v. Virginia Board for People with Disabilities, Case No. 18-cv-360, Feb. 1, 2019. EDVA at Richmond (Gibney). VLW 019-3-049. 10 pp.

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Title Annotation:White v. Virginia Board for People with Disabilities, U.S. District Court for the Eastern District of Virginia
Publication:Virginia Lawyers Weekly
Date:Feb 23, 2019
Words:769
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