Wood v. Bristol Va. Util. Auth.

661 F.Supp.3d 538

James WOOD, Plaintiff, v. BRISTOL VIRGINIA UTILITY AUTHORITY,¹ Defendant.

Case No. 1:22CV00018

United States District Court, W.D. Virginia, Abingdon Division

Signed March 13, 2023

Thomas E. Strelka, L. Leigh R. Strelka, N. Winston West, IV, Brittany M. Haddox, and Monica L. Mroz, Strelka Employment Law, Roanoke, Virginia, for Plaintiff.

Jennifer D. Royer, Royer Law Firm, P.C., Roanoke, Virginia, for Defendant.

OPINION AND ORDER

James P. Jones, Senior United States District Judge

In this employment case, the plaintiff James Wood asserts claims against his former employer for violations of the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and state-law whistleblower statutes. The defendant has moved to dismiss the Complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, I will deny the motion in part and grant it in part, with leave to amend.

I.

The Complaint alleges the following facts, which I must accept as true for purposes of deciding the Motion to Dismiss.

Wood worked for the defendant, BVU Authority (BVUA), as a Geographic Information Systems and Engineering Technician from June 2016 until May 28, 2021. Wood provided engineering support to BVUA's Electrical and Water Department and Wastewater Department and maintained the Geographic Information Systems (GIS). Wood avers that he exhibited exceptional work performance and could fulfill the essential functions of his job.

During the onset of the COVID-19 (COVID) pandemic, the Virginia Department of Labor and Industry promulgated regulations to protect employees from infection. Wood alleges that BVUA discouraged employees from complying with the regulations, encouraging them to report to work even if they or close family members tested positive for COVID. In March 2021, one of Wood's coworkers came to work for a week even though he had tested positive for COVID. On March 30, 2021, Wood tested positive for COVID. He reported his positive test and on or about that date informed BVUA's Safety Manager, Brad Griswold, that the coworker had been reporting to work after testing positive for COVID.

The Sullivan County Health Department gave Wood an isolation letter on April 3, 2021. That letter directed him to quarantine in accordance with state regulations and guidance from the Centers for Disease Control and Prevention (CDC). The following week, Wood spent four days in the hospital with respiratory failure and sepsis. The infection left him with lifelong disabilities, including irrevocably damaged lungs. Wood now suffers from a medical condition known as Long COVID.

After his release from the hospital, Wood required oxygen because he had been experiencing shortness of breath, fatigue, and substantially limited respiratory function. After requesting leave under the FMLA, he remained out of work until April 26, 2021. Wood's doctor released him to return to work on a reduced schedule of twenty hours per week, advising that the schedule was medically necessary until May 10, 2021.

When Wood returned to work, Donna Biggs, the BVUA Human Resources Manager, asked Wood to share the FMLA paperwork with BVUA CEO Don Bowman and Phillip King, Wood's immediate supervisor. Bowman and King instructed Wood to tell his doctor to change the medical release and FMLA documents so that the diagnosis reflected Long COVID. They wanted the doctor to specify the number of hours Wood could work each day and the total number of hours he could work for the week and to state that he must have one complete day off during the week to rest. Bowman and King asked that the doctor report that Wood would need oxygen while at work and state the job functions Wood was not able to perform based on his job description. They insisted the doctor provide the amended release documents within the time BVUA allotted, or BVUA would terminate Wood. Two days later, on April 28, 2021, a member of the BVUA Human Resources Department informed Wood that management believed his work productivity was poor. He received a negative performance evaluation. On April 30, 2021, Bowman decided that Wood would have to exhaust his sick leave before qualifying to use FMLA leave.

Wood learned on May 9, 2021, that he had COVID again. The Sullivan County Health Department instructed Wood to quarantine for ten days. Again, Wood requested FMLA leave. Claiming the medical diagnosis was too vague, BVUA rejected his request. Wood complained to the Human Resources Department that BVUA created and maintained a hostile work environment for employees with disabilities. Subsequently, BVUA rejected his request for medical leave under the FMLA.

Wood's physician faxed a medical note to BVUA on May 20, 2021, requesting that BVUA excuse Wood from work through May 28, 2021. The doctor explained that Wood had COVID twice and was having cognition and endurance issues. The doctor's note mentioned a referral to a pulmonologist for Wood's lung damage and that it would be medically necessary for Wood to work on a reduced schedule of thirty-two hours per week upon his return to work on May 28, 2021. Specifically, Wood would need the modified schedule until June 14, 2021. Further, the doctor explained the medical necessity for Wood to intermittently work. Wood could "experience 'episodes of incapacity' lasting between two and eight hours." Compl. ¶ 49, ECF No. 1. The doctor estimated such episodes would occur three to four times per week for six months. However, the doctor concluded Wood would be "able to perform all job functions but may require more time to complete tasks and work shorter days or weeks." Id.

The day before returning to work, May 27, 2021, Wood contacted Biggs and requested permission to use supplemental oxygen at work. Wood filed a complaint with OSHA on May 28, 2021. He reported that BVUA retaliated against him and harassed him for reporting that a coworker came to work after testing positive for COVID, and that he, too, had contracted COVID and experienced severe symptoms. That same day, CEO Bowman terminated Wood by email.

Based on these facts, Wood asserts six claims. Counts I and II allege retaliation and interference with his rights in violation of the FMLA. Counts III and IV allege discrimination, retaliation, and failure to accommodate in violation of the ADA. Counts V and VI allege retaliation in violation of the state's whistleblower laws, including the state Fraud and Abuse Whistle Blower Protection Act (FAWBPA).

BVUA has moved to dismiss all counts under Federal Rule of Civil Procedure 12(b)(6). BVUA contends that as to Count I, Wood fails to allege facts establishing a causal connection between his taking FMLA leave and his termination. As to Count II, it asserts that the Complaint fails to state sufficient facts demonstrating that BVUA interfered with Wood's FMLA rights. As to Counts III and IV, BVUA argues that those claims must be remanded to the Equal Employment Opportunity Commission (EEOC) for further investigation. It further contends that Wood has not shown as to Count IV that he could perform the essential elements of his job with reasonable accommodation or that BUVA denied any request for such accommodation.

As to Count V, BVUA argues that Wood has failed to show that his fellow employee's COVID diagnosis while at work was a violation of law or regulation or that Wood's negative performance evaluation constituted an adverse employment action. Finally, as to Count VI, BVUA asserts that Wood's report to OSHA did not fall under the required elements of FAWBPA protection, nor could it have a causal relation to his termination by BVUA, since there is no allegation that BVUA knew of it before Wood was terminated.

The motion has been briefed and orally argued and is ripe for decision.

II.

Federal pleading standards require that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "A complaint need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Ray v. Roane, 948 F.3d 222, 226 (2020).² To survive a motion to dismiss, the complaint must "state[ ] a plausible claim for relief" that "permit[s] the court to infer more than the mere possibility of misconduct" based upon its "judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Resolution of a motion to dismiss "does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses." Ray, 948 F.3d at 226. When evaluating a pleading, the court accepts as true all well-pleaded facts and construes those facts in the light most favorable to the plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679, 129 S.Ct. 1937. A complaint does not need detailed factual allegations, but it must have more than labels and conclusions or a recitation of the elements of the cause of action. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

A. Counts I and II: Family Medical Leave Act.

Wood asserts two claims under the FMLA. In Count I, he alleges retaliation, and in Count II, he claims interference with his FMLA rights. BVUA moves to dismiss both counts for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(6). I will deny the Motion to Dismiss as to Counts I and II.

The FMLA provides that "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period" for an employee's serious health...