Kulshrestha v. Shady Grove Reprod. Sci. Ctr.

• Decision Date: 06 April 2023
• Docket Number: 1:23-cv-42
• Parties: SUNITA KULSHRESTHA, M.D., Plaintiff, v. SHADY GROVE REPRODUCTIVE SCIENCE CENTER, P.C., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

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SUNITA KULSHRESTHA, M.D., Plaintiff, v. SHADY GROVE REPRODUCTIVE SCIENCE CENTER, P.C., Defendant.

No. 1:23-cv-42

United States District Court, E.D. Virginia, Alexandria Division

April 6, 2023

MEMORANDUM OPINION

T.S ELLIS, III UNITED STATES DISTRICT JUDGE

In this employment dispute, Plaintiff Sunita Kulshrestha (“Plaintiff”) has sued her former employer Defendant Shady Grove Reproductive Center (“Defendant”). Plaintiff alleges four counts in the Complaint:

(i) Breach of contract;

(ii) Retaliation in violation of the Virginia Whistleblower Protection Law (“VWPL”), Va. Code § 40.1-27.3;

(iii) Defamation per se; and

(iv) Retaliation in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.

In response, Defendant filed a Motion to Dismiss Counts I, II and III, which was fully briefed and argued. Following argument, the Motion to Dismiss was granted in part and denied in part. See Order Issued March 6, 2023, Dkt. 11 at 2-3. Specifically, Defendant's motion was granted with respect to Count I, which was dismissed without prejudice to allow the parties to initiate arbitration in Maryland pursuant to a forum-selection and arbitration clause in the parties' contract. Defendant's Motion to Dismiss was also granted with respect to Count III, which was dismissed without prejudice and Plaintiff was granted leave to amend her Complaint with respect to her defamation allegations in Count III. Plaintiff then filed an Amended Complaint with respect to Count III, and Defendant filed another Motion to Dismiss Count III, which will be argued on April 21, 2023. See Dkts. 13, 17, 19.

At issue now is Count II of the Complaint, which alleges retaliation in violation of the VWPL. In the Motion to Dismiss, Defendant argues that Count II should be dismissed as barred by the VWPL's one-year statute of limitations. Following oral argument, supplemental briefing was ordered and received addressing the statute of limitations issue. More recently, Plaintiff also filed a Motion to Certify a Question of Law to the Supreme Court of Virginia, arguing that the novel issue of when a cause of action accrues for a claim under the VWPL should be certified to the Supreme Court of Virginia. See Pl.'s Mot. to Certify Question to State Court, Dkt. 14. Defendant then responded to Plaintiff's Motion to Certify on March 24, 2023. See Def.'s Resp. to Pl.'s Mot. to Certify, Dkt. 20. Thus, both Defendant's Motion to Dismiss Count II and Plaintiff's Motion to Certify are now ripe for disposition. For the reasons that follow, Defendant's Motion to Dismiss Count II must be granted, and Plaintiff's Motion to Certify must be denied.

I.

The facts alleged in Plaintiff's Complaint in support of Count II are assumed true solely for the purposes of resolving Defendant's Motion to Dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Those facts may be summarized chronologically as follows.

• Plaintiff Sunita Kulshrestha is a medical doctor who is board certified in obstetrics and gynecology with a specialty in reproductive endocrinology and infertility.

• Defendant Shady Grove Reproductive Science Center, P.C. is a large medical practice which specializes in fertility treatments.

• In 2013, Defendant approached Plaintiff to recruit her to join Defendant's medical practice. Defendant promised Plaintiff that she would become a partner and make $1,000,000 per year.

• Plaintiff joined Defendant's practice in 2014 and initially worked at Defendant's Pennsylvania offices. In 2017, Plaintiff moved back to Northern Virginia and began seeing patients at Defendant's Maryland and Virginia offices.

• In March 2018, Plaintiff's husband died unexpectedly, leaving Plaintiff to care for her elderly parents and in-laws. In 2019 and 2020, Plaintiff's father and father-in-law both died. In 2020, Plaintiff gave birth to her first child. Throughout these events, Plaintiff maintained a full workload and achieved high patient satisfaction scores.

• In August 2021, Plaintiff's mother became ill and required Plaintiff's care. Plaintiff asked Defendant to allow her to conduct telemedicine appointments because of the COVID-19 pandemic and her mother's health challenges.

• On August 23, 2021, Plaintiff had a Zoom call with Amy Davis, Defendant's Regional Executive Director. During the call, Plaintiff requested to work from home for two weeks in order to care for her mother. Plaintiff also asked about engaging in FMLA leave. In response, Ms. Davis expressed concern that Plaintiff was “doing three full-time jobs at once . . . mom to a fifteen-month-old, caregiver to [Plaintiff's] mother, and full-time physician.” In response, Plaintiff asked if Ms. Davis was treating Plaintiff differently based on Plaintiff's gender and caregiver status in violation of state and federal employment law.

• On August 30, 2021, Ms. Davis and Defendant's head of human resources notified Plaintiff that Defendant was terminating Plaintiff's employment on February 27, 2022 because “it was not a good fit.” Plaintiff received a written Notice of Termination on August 30, 2021, which stated that “notice is hereby provided that your employment with Shady Grove . . . will terminate on February 27, 2022.”

Compl., Dkt. 1-1 at 4-8.

Count II of Plaintiff's Complaint, the only claim at issue here, alleges violation of the VWPL and states that “Plaintiff engaged in protected activity in August of 2021 when she sought to take leave under FMLA . . . and when she reported that Defendant's treatment of her violated state, local, and federal equal employment opportunity laws.” Id. at ¶ 52. According to Plaintiff, her termination after reporting that Defendant treated her differently based on her caregiver status constituted retaliation in violation of the VWPL. In response, Defendant argues that Count II must be dismissed as barred by the VWPL's one-year statute of limitations because Plaintiff filed this action on December 5, 2022, over a year after Plaintiff received her Notice of Termination on August 30, 2021. For the reasons stated below, Defendant persuasively argues that Count II is time-barred and Count II must be dismissed.

II.

Resolution of Defendant's Motion to Dismiss Count II requires determining when a cause of action accrues under the VWPL. Here, the parties dispute whether Plaintiff's cause of action accrued when she received her Notice of Termination on August 30, 2021 or when she stopped working on February 27, 2022. Because Plaintiff filed her Complaint on December 5, 2022, her VWPL claim is timely only if it accrued on or after December 5, 2021. This means Plaintiff's claim is barred if it accrued when she received her Notice of Termination on August 30, 2021. Because the VWPL is a relatively new statute which took effect on July 1, 2020, neither the Supreme Court of Virginia nor the Court of Appeals of Virginia has yet issued any decision interpreting the VWPL,^[1]and no reported case from any Virginia court has directly addressed when the VWPL statute of limitations begins to run.^[2] Because this case presents a question of first impression under in Virginia law, this Court must predict how the Supreme Court of Virginia would rule were it presented with the same issue. In other words, “[w]here there is no case law from the forum state which is directly on point, the district court attempts to do as the state court would do if confronted with the same fact pattern.” Roe v. Doe, 28 F.3d 404, 407 (4th Cir. 1994). Although no court has directly addressed when the statute of limitations begins to run under the VWPL, other state and federal precedent interpreting similar employment statutes indicates that the statute of limitations for Plaintiff's VWPL claim began to run when Plaintiff received her written Notice of Termination, not on the later date when her employment actually ended.

First, although the Supreme Court of Virginia has not decided any case regarding the VWPL's statute of limitations, other settled Supreme Court of Virginia precedent involving the accrual of causes of actions provides helpful and persuasive guidance on the question presented here. The Supreme Court of Virginia has instructed that in determining when a cause of action accrues, a court must first “begin with the language of the statute at issue.” Kiser v. A.W. Chesterton Co., 285 Va. 12, 24 (2013). Thus, analysis of when a cause of action accrues under the VWPL properly begins with the terms of the statute, which states:

An employer shall not discharge, discipline, threaten, discriminate against, or penalize an employee, or take other retaliatory action regarding an employee's compensation, terms, conditions, location, or privileges of employment, because the employee . . . reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official . . .

Va. Code § 40.1-27.3(A). The statute also includes a one-year limitations period, providing that “[a] person who alleges a violation of this section may bring a civil action in a court of competent jurisdiction within one year of the employer 's prohibited retaliatory action” Id. § 40.1-27.3(C) (emphasis added). The plain text of the statute therefore makes clear that the relevant focus for beginning the one-year statute of limitations period is the employer's “retaliatory action,” not the later consequences of that action. Id. Thus, Plaintiffs cause of action accrued, and the one-year statute of limitations began to run, when Plaintiff received her Notice of Termination on August 30, 2021, because at that point Defendant committed a “prohibited retaliatory action” against her as required by the statute. Id.^[3]

This conclusion comports with the Supreme Court of Virginia's...