Anderson v. Sch. Bd. of Gloucester Cnty.

DR. WENDI H. ANDERSON, Plaintiff, v. THE SCHOOL BOARD OF GLOUCESTER COUNTY, VIRGINIA, Defendant.

Civil Action No. 3:18cv745

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

March 24, 2021

MEMORANDUM OPINION

This matter comes before the Court on four motions:

(1) Defendant the School Board of Gloucester County, Virginia's (the "School Board") First Motion for Partial Summary Judgment¹ Regarding Statute of Limitations (the "School Board's Motion for Partial Summary Judgment"), (ECF No. 41);

(2) Plaintiff Dr. Wendi H. Anderson's Motion for Partial Summary Judgment ("Dr. Anderson's Motion for Partial Summary Judgment") (collectively, the "Cross Motions for Partial Summary Judgment" or the "Cross Motions"), (ECF No. 43);

(3) The School Board's Motion for Sanctions Under Rule 37(b)(2) (the "Motion for Sanctions"), (ECF No. 37); and,

(4) The School Board's Motion for Attorney's Fees (the "Motion for Fees"), (ECF No. 35).

The School Board and Dr. Anderson each responded to the Cross Motions. (ECF Nos. 45 & 46). Neither Party replied, and the time to do so has expired. Dr. Anderson responded to the Motion for Sanctions, (ECF No. 39), and the School Board replied, (ECF No. 40). Dr. Anderson did not respond to the Motion for Fees, and the time to do so has expired.

These matters are ripe for disposition. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. For the reasons stated below, the Court will grant Dr. Anderson's Motion for Partial Summary Judgment and deny the School Board's Motion for Partial Summary Judgment. Next, the Court will grant in part and deny in part the School Board's Motion for Sanctions. Finally, the Court will grant the School Board's Motion for Fees.

I. Factual² and Procedural Background

Dr. Anderson, a teacher at Page Middle School in Gloucester County, Virginia ("Page"), brings what is now a one-count action arising out of the School Board's alleged failure to provide reasonable accommodations under the Americans with Disabilities Act ("ADA") for Dr. Anderson's scent sensitivity and allergies. This Motion pertains to the School Board's contention that Dr. Anderson filed her suit one day late, which would deprive this Court of jurisdiction.³

On June 27, 2018, Dr. Anderson filed a Charge of Discrimination with the EEOC. (See Mem. Supp. School Board Mot. Partial. Summ. J. Ex. A "Charge of Discrimination" ECF No. 42-1.) On July 26, 2018, the EEOC mailed Dr. Anderson and Counsel for Plaintiff a copy of the Right-to-Sue Letter. The Right-to-Sue Letter advised Dr. Anderson that "her lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice or your right to sue based on this charge will be lost." (Id. Ex. C "Right-to-Sue Letter" 1, ECF No. 42-3 (emphasis in original).) Both the Right-to-Sue Letter and the accompanying envelope reflect that the EEOC mailed the Right-to-Sue Letter on July 26, 2018. (Id. 4.) The envelope also reflects that the EEOC mailed the Right-to-Sue Letter to two additional parties: (1) "Gwen H. Ciemniecki," an employee of the School Board; and, (2) "Steven Bliss [sic]," Counsel for Plaintiff. (Id.) On October 30, 2018, eighty-nine days after allegedly receiving the Right-to-Sue Letter, Anderson filed this suit. (ECF No. 1.)

A. Dr. Anderson's Receipt of the Right-to-Sue Letter

The Parties dispute the date Dr. Anderson received the Right-to-Sue Letter, and therefore whether she timely filed the instant action. Between July 13, 2018, and August 2, 2018, Dr. Anderson vacationed out of town with her family, travelling to an outdoor camp in Michigan for two weeks. (Mem. Supp. Anderson Mot. Part. Summ. J. Ex. A "Anderson Interrog. Resps. 2, ECF No. 44-1.) On August 1, 2018, Anderson and her family left Michigan to return to Virginia but made "an unexpected visit to the emergency room in Sandusky, Ohio" due to complicationsresulting from Anderson's condition. (Id. 3-4.) Anderson and her family arrived home to Urbanna, Virginia shortly after midnight on August 2, 2018. (Id. 10.)

While Dr. Anderson was on vacation, her neighbor, Eileen Smith, "was authorized to retrieve mail from the mailbox at her discretion and bring it inside." (Id. 13.) A text message exchange between Anderson and Smith on August 5, 2018, shows that Smith placed some mail on Anderson's computer chair during Anderson's two-week vacation, but Smith could not recall the last date she had done so. (Id. 13-15.) Smith states that she left the mail in that location "knowing it would have to be seen and moved in order to use [the] chair." (Id. 15.) Despite this, Anderson reports that her "mailbox was quite full" when she returned from Michigan in the early morning of August 2, 2018. (Id. 20.) She "sifted through the mail to see if the EEOC letter had" arrived and determined that "[i]t had not." (Id.)

Later in the morning of August 2, 2018, Anderson reports that she "found the stack of mail on my computer chair" but "sifted through and found no EEOC letter." (Id. 21.) At 7:57 a.m. that day, Dr. Anderson sent an email, copying Mr. Biss, regarding her instant claims against the School Board to her "VEA [Virginia Education Association] representative, Norm Brown." (See id.) The email addressed tasks Dr. Anderson "had been ordered by Principal McMahon to do while [Dr. Anderson] was on Family Medical Leave." (Id.) Dr. Anderson did not mention the Right-to-Sue Letter in that email. (See id.) After returning home from a doctor's appointment in Richmond, Virginia, Dr. Anderson sent several lengthy emails over the course of the afternoon. (Id. 22-30.) At 5:12 p.m., Dr. Anderson sent another email regarding her case to two VEA representatives. In that email, Dr. Anderson states that one of the now-dismissed defendants, an employee of the School Board, "has created a hostile work environment, and I have filed a complaint with the EEOC as such." (Id. 28.)

That same day, on the evening of August 2, 2018, Anderson states that she retrieved the mail from the mailbox at 6:36 p.m. and found the Right-to-Sue Letter. (Id. 29.) At 6:42 p.m., six minutes later, Anderson sent an email to Mr. Biss stating "I received a dismissal notice and right to sue letter today 8-2-18. Looks like we have 90 days." (Mem. Supp. School Board Mot. Part. Summ. J. Ex. E "August 2-3, 2018 Email Chain" 3, ECF No. 42-5.) On August 3, 2018, at 9:04 a.m., Mr. Biss responded: "Yes, I received the letter today. So we must file suit on or before October 30, 2018. Please confirm my math." (Id. 2.) Dr. Anderson responded three hours later: "Steve, [t]hat date sounds about right." (Id. 1.)

On August 5, 2018, Dr. Anderson texted Smith, her neighbor, about a package that she could not locate. (See Anderson Interrog. Resps. 14-16.) During that conversation, Anderson asks her neighbor whether she checked the mail "around [July] 20th," but Smith could not recall "specific dates." (Id. 15.) Dr. Anderson stated that "I wonder if the post office stopped putting stuff in [the mailbox] [or] if [Dr. Anderson's husband] just can't remember what he did with any he might have picked up when he got home." (Id.)

B. Initial Discovery Dispute and the Motion to Compel

On May 29, 2020, the Court granted in part and denied in part Defendant's Second Motion to Dismiss.⁴ (See May 29, 2020 Mem. Op. & Am. Order, ECF Nos. 16 & 17.) In the May 29, 2020 Amended Order, the Court ordered expedited briefing on the issue of whether Dr. Anderson timely filed her suit in this Court, stating

the parties shall have sixty (60) days to conduct expedited discovery, limited only to the timeliness of the instant case. Unless the parties come to agreement on theissue, seventy five (75) days from entry of this Memorandum Opinion and Amended Order, the parties shall file Cross Motions for Partial Summary Judgment Regarding the Application of the Statute of Limitations to this case. Each party shall respond to the other's motion no later than twenty (20) days following the Partial Motion for Summary Judgment. No other briefing on that issue will be allowed.

(Am. Order 2.)

On July 22, 2020, the School Board filed a Motion to Compel based on Plaintiff's attorney-client privilege objections regarding the August 2, 2018 Email. (ECF No. 24.) On August 13, 2020, the Court issued a Memorandum Opinion and Order granting the School Board's Motion to Compel.⁵ (Aug. 13, 2020 Mem. Op. & Order, ECF Nos. 33 & 34.) The Court ordered that the Parties conclude expedited discovery "by the close of business on September 28, 2020," submit cross motions concerning the timeliness of the present action byOctober 12, 2020, and respond to the cross motions no later than November 2, 2020.⁶ (Aug. 13, 2020 Order 1, ECF No. 34.) For the reasons stated from the Bench, the Court ordered the School Board to submit a petition of fees incurred in bringing the discovery dispute pursuant to Federal Rule of Civil Procedure Rule 37(a)(5)(A).

C. Mr. Biss's Receipt of the Right-to-Sue Letter

Pursuant to the Court's August 13, 2020 decision, Counsel for the School Board conducted the deposition of Mr. Biss concerning the issue of the Right-to-Sue Letter's receipt. At his deposition, Mr. Biss provided the School Board with his saved copy of his version of the Right-to-Sue Letter, which he had labeled "Right to Sue Letter - Received 8.2.18." (Mem. Supp. School Board Ex. F "Deposition of Steven Biss" 1, ECF No. 42-6.) The metadata for the scanned file reveals that the Right-to-Sue Letter was "scanned in" to Mr. Biss's computer at 9:02 a.m. on August 3, 2018, and that Mr. Biss last modified the file at that time. (Id.)

When asked why he saved the file on August 3, 2018 but marked the letter as received on August 2, 2018, Mr. Biss stated that

I presumed when I created the name of this document, because I got it at 9 o'clock in the morning because I opened my mailbox it was there . . . I presumed that they

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