Defendants seek dismissal of suit

Published 12:56 pm Wednesday, January 25, 2017

The three defendants named in a wrongful termination suit filed by a former Lunenburg County employee have filed a demurrer in response to Robert L. Matthews’ amended complaints, asking the court to dismiss the suit.

Lunenburg County Administrator Tracy M. Gee, county human resources professional Nicole Clark and the County of Lunenburg are the named defendants who are being sued by Matthews.

Matthews filed suit against the defendants on Dec. 30 in Lunenburg Circuit Court for alleged wrongful termination, defamation of character and actions that led to prolonged “pain and suffering” after a “near fatal attack” by a dog.

The defendants filed the demurrer against Matthews’ amended complaint on Jan. 17. The demurrer claims the amendment to Matthews’ complaint is “insufficient as a matter of law and ought not to be prosecuted.”

A demurrer is an objection that a complaint is irrelevant or invalid.

The defendants believe Matthews’ claims of violations against Occupational Safety and Health Administration (OSHA) regulations, the Virginia Occupational Health Program, the Americans with Disabilities Act and the Health Insurance Portability and Accountability Act are all barred by the statute of limitations. The defendants also state Matthews’ claim of an Americans with Disabilities Act (ADA) violation for not extending his Family and Medical Leave Act by seven days should be dismissed, citing the ADA “does not apply to his leave for surgery and recovery afterward as it is temporary and not a disability under the ADA.”
Gee, Clark and the county also state Matthews’ claim of a violation of the ADA as he was terminated in retaliation

for his worker’s compensation claim is void because worker’s compensation is not protected under the ADA and he was unable to perform his duties.

In the demurrer, the defendants claim Matthews’ allegation that he was “wrongfully and willfully denied settlement in a Worker’s Compensation claim” fails as it is not recognized by law and that if it was it would be settled by a worker’s compensation proceeding.

Additionally, Gee, Clark, and the county cite a number of violations by Matthews in regards to the filing of an amended complaint. Finally, the defendants claim the pleading is “untimely and filed absent leave of Court.”

According to the suit, Matthews was hired in June 2007 as a building and grounds technician for Lunenburg County. In 2010, he was named assistant animal control officer (ACO) in addition to continuing to work as building and grounds technician.

The suit alleges that on May 20, 2012 he responded as ACO to a call regarding a dog attack resulting in “severe facial injuries” to the victim. The suit says Matthews was attacked by the same dog upon responding to the call and was placed on Worker’s Compensation. Matthews claims in the suit that a lack of personal protective equipment (PPE) and inadequate training led preceded the attack.

Matthews asserts in his suit he received a letter on Dec. 4, 2015 informing him he must return to work on Dec. 7 or it would have been considered he resigned. The suit alleges Matthews returned to work the same day and was informed that his Family and Medical Leave Act coverage had ended, there was no light duty work available and his position was terminated.

On Jan. 10, Matthews filed an addendum to his amended complaint, asserting the defendants delayed in complying with Matthews’ Freedom of Information Act (FOIA) request. This, Matthews claims, caused “vital information and evidence in support of Plaintiff’s complaint (to be) delayed to Plaintiff, which caused Plaintiff’s Amendment Complaint to be incomplete.” Matthews submitted the addendum “with additional evidence of a prima facie (based on the first impression) case of discrimination and retaliation, breach of state statutes and non-compliance with Lunenburg County policies by Defendants.”

On Jan. 20, the Lunenburg County Circuit Court issued a notice of filing of the defendant’s notice of removal to the U.S. District Court for the Eastern District of Virginia’s Richmond Division.

A judge has yet to rule on the demurrer.