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Failure to exhaust remedies prompts dismissal.

Byline: Virginia Lawyers Weekly

Where a plaintiff failed to exhaust his administrative remedies, to timely file his complaint andto properly plead claims, his complaint is dismissed.


Plaintiff is a 46-year old African-American man who suffers from osteoporosis in his hips and sleep apnea. Plaintiff alleges that he was a substance abuse counselor for Fairfax County Government before that function was given to Fairfax-Falls Church Community Service Board. Plaintiff alleges that during his employment, FFCCSB underwent budget cuts and INOVA was to hire many of its employees.

Plaintiff further states that he attempted to get a certification that was needed if he were to work for INOVA. The certification required, among other things, for plaintiff to work 2000 hours in the field which could be done at FFCCSB.

Plaintiff alleges that FFCCSB discriminatorily prevented him from reaching the hours requirement due to his race, age, genetics, and disabilities. Plaintiff alleges that FFCCSB knew of his disabilities due to the access FFCCSB employees had to INOVA's patient record system. Plaintiff further alleges that he did not always have an African-American manager at FFCCSB, but an African-American nurse from INOVA was placed over him near the end of his employment to provide cover his eventual firing.

Plaintiff alleges that he continues to be subject to retaliation from FFCCSB and FCG employees he believes are preventing his employment across the country.

Plaintiff filed his first charge with the EEOC against FCG alleging race and age discrimination along with retaliation on June 1, 2016. Plaintiff received his right-to-sue-letter for that charge on June 14, 2016. Plaintiff filed his second charge against FCG in July 2016 alleging racial discrimination and retaliation. He received his right-to-sue-letter for that charge on Sept. 8, 2016. Plaintiff filed this lawsuit on July 3, 2018.


FFCCSB contends that it is not statutorily capable of being sued. Virginia law determines the capacity for suit of entities that are not individuals or corporations. When a statutorily created body is not granted the power to sue or be sued in the enumeration of its powers, it is not capable of being sued. Here, FFCCSB was created by statute and was not granted the power to sue or be sued in the enumeration of its power. As FFCCSB does not have the statutory power to be sued as an entity, it is not a proper party and this court lacks personal jurisdiction over it.

Defendants contend that the court lacks subject-matter jurisdiction over this case because plaintiff failed to exhaust his administrative remedies. In this case, plaintiff never filed any charge against FFCCSB or INOVA with the EEOC. Further, plaintiff did not raise claims of genetic and disability discrimination when he filed his charges against FCG. This failure to previously charge either FFCCSB or INOVA or to raise the genetic and disability claims against FCG means that plaintiff did not exhaust his administrative remedies. Plaintiff's failure to exhaust his administrative remedies deprives the court of subject-matter jurisdiction.

INOVA contends that plaintiff failed to state a plausible cause of action against it.

Here, plaintiff failed to include facts in his complaint that demonstrated an employment relationship with INOVA. Plaintiff did note in his complaint that a nurse from INOVA was placed in a managerial position over him. However, no facts alleged demonstrate this created an employment relationship or how INOVA discriminated against plaintiff. Without such facts, plaintiff did not state a claim for relief.

Lastly, a plaintiff only has 90 days to file a claim in federal court upon receiving a right-to-sue-letter from the EEOC. Failure to file within the statute of limitations is treated as a failure to state a claim. Plaintiff received his right-to-sue-letters in June and September of 2016 and filed this lawsuit on July 3, 2018. This is well beyond the 90-day statute of limitations.

Motion granted.

Henderson v. Fairfax-Falls Church Community Service Board, Case No. 18-cv-825, Sept. 20, 2018. EDVA at Alexandria (Hilton). VLW 018-3-395. 7 pp.

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Title Annotation:Henderson v. Fairfax-Falls Church Community Service Board, U.S. District Court for the Eastern District of Virginia
Publication:Virginia Lawyers Weekly
Date:Oct 28, 2018
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