Greg Kelly V Town of Abingdon

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA

ABINGDON DIVISION
GREGORY WARREN KELLY, )

)
Plaintiff, )
)
v. )
)
TOWN OF ABINGDON, VIRGINIA, )
) Case No:
)
Serve: )
Hon. Wayne Craig, )
Mayor, )
Town of Abingdon )
133 West Main Street )
Abingdon, VA 24210 )
) JURY TRIAL DEMAND
)
Defendant. )
COMPLAINT
COMES NOW, Plaintiff Gregory Warren Kelly (hereinafter, “Mr. Kelly” or
“Plaintiff”), by counsel, and states as his Complaint against Defendant Town of Abingdon,
Virginia (hereinafter, “Town” or “Defendant”), the following:
I. JURISDICTION AND VENUE
1. This Court has jurisdiction over this matter as it arises from the federal
questions presented by the Americans with Disabilities Act, as codified under Title 42
U.S.C. §§ 12101 et seq., and the ADA Amendments Act of 2008 (“ADA”), and state law
claims, to-wit, a breach of contract.
2. Venue is appropriate as the Plaintiff and Defendant reside in Abingdon,
Virginia.
Case 1:19-cv-00032-JPJ-PMS Document 1 Filed 08/18/19 Page 1 of 15 Pageid#: 1

3. Due to its contacts within the Commonwealth of Virginia, and charter by
the Virginia General Assembly, Defendant avails itself to the jurisdiction of this Court.
4. As it relates to Plaintiff’s ADA claims, Plaintiff timely filed a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”) on or
around July 27, 2018. Plaintiff received a Dismissal and Notice of Rights from the EEOC
dated May 22, 2019, attached hereto as EXHIBIT A. Plaintiff files suit within ninety (90)
days of receipt of that Dismissal and Notice of Rights.
II. THE PARTIES
5. Mr. Kelly, a resident of Abingdon, Virginia, was hired by The Town in or
around March of 2005, and worked on a consistent, full-time basis for The Town for
nearly thirteen (13) years, until his unlawful constructive discharge on or about May 7,
2018.
6. The Town is an incorporated and chartered town under the laws of the
Commonwealth of Virginia.
III. FACTUAL ALLEGATIONS
7. In or around March 1, 2005, Mr. Kelly was hired by The Town as Town
Attorney and later was appointed Town Manager.
8. At the time of Mr. Kelly’s appointment as Town Manager on September 7,
2006, Mr. Kelly and The Town entered into an employment contract. In relevant part, the
contract provided that Mr. Kelly was due nine (9) months’ severance, calculated based on
Mr. Kelly’s annual salary at the time he left employment. See Sept. 7, 2006 Town Council
Meeting Minutes, attached as EXHIBIT B.
9. During his employment with The Town, Mr. Kelly’s work performance was
excellent, and met or exceeded The Town’s legitimate business expectations.

10. At all times relevant, Mr. Kelly suffered from ADA-recognized disabilities,
to-wit, anxiety, high blood pressure and depression for which he has been required to take
daily medication. These disabilities affected his various daily life activities, including, but
not limited to, sleeping, eating, breathing, and having normal circulation.
11. In the alternative, The Town regarded Mr. Kelly as disabled.
12. These conditions have been exacerbated due to the often unprofessional
and occasionally outrageous actions of several of Mr. Kelly’s supervisors, the Town
Council of Abingdon and the Mayor of Abingdon.
13. Due to political in-fighting among Council members, Mr. Kelly’s disabilities
have affected his daily life activities. Mr. Kelly worked day-to-day in a severe and
pervasive hostile working environment.
14. Despite performing his job exceptionally well, he was continuously
threatened with termination if he did not do as certain council members directed despite
being bound by law and a strict code of local government ethics to implement only the
policies enacted by the collective majority of the council. These threats were a pretext,
masking a discriminatory animus towards Mr. Kelly’s disabilities.
15. Mr. Kelly has been subjected to insults, invasions of privacy, disclosure of
confidential information, and profane and obscene messages from Town leadership and
has been publicly ridiculed and defamed on several occasions.
16. Mr. Kelly’s health issues became threatening enough for his physician to
inform him that he should request accommodations or remove himself from his working
environment in order to protect himself from worsening and depleting health.
17. Mr. Kelly continued to suffer from a discriminatory animus towards his
disabilities and retaliation due to his disabilities and for filing Charges of Discrimination

on September 13, 2017, Charge No. 438-2017-01164 and December 27, 2018, Charge No.
438-2018-00415.
18. On January 10, 2018, Mr. Kelly requested several reasonable
accommodations for his disabilities. See January 10, 2019 2018 letter, appended to this
pleading as EXHIBIT C. Twelve possible accommodations were described in the letter
as talking points in the interactive process. The Town refused to engage in the interactive
process in any meaningful way in order to find accommodations for Mr. Kelly’s
disabilities.
19. Mr. Kelly only received a token communication from The Town’s legal
counsel several months later, in or about April of 2018, stating that The Town would
engage in the interactive process. When Mr. Kelly attempted to further communicate with
the Town concerning the interactive process, he did not receive further reply from the
Town or the Town’s legal counsel.
20. On or about May 7, 2018, due to the severe and pervasive hostile work
environment targeting individuals with disabilities, Mr. Kelly had no alternative but to
resign his employment. Mr. Kelly attempted to work in an untenable work environment.
However, because of the abusive nature of that work environment, Mr. Kelly suffered a
constructive discharge.
21. Upon information and belief, no business-related legitimate reason justified
the actions The Town took against Mr. Kelly, as Mr. Kelly’s work performance was
excellent and, until he requested federally protected disability accommodations to
manages his disabilities, he never received any discipline from his employer.
22. Accordingly, Mr. Kelly’s constructive discharge was merely a pretext to
unlawful discrimination and retaliation by The Town, as Mr. Kelly’s constructive

discharge occurred under circumstances that raise a reasonable inference of unlawful
discrimination and retaliation based upon his disabilities and/or reasonable
accommodations.
23. Indeed, the short temporal proximity between the time Mr. Kelly requested
accommodations related to his disability and his constructive discharge supports Mr.
Kelly’s claims for discrimination and retaliation.
24. Mr. Kelly suffered a constructive discharge, in violation of the ADA, because
The Town:
 discriminated and/or retaliated against Mr. Kelly for filing previous EEOC
Charges;
 discriminated and/or retaliated against Mr. Kelly because of his disabilities
and/or because of his requests for disability-related accommodations;
and/or
 failed to properly accommodate Mr. Kelly’s disabilities.
25. The Town never paid Mr. Kelly the severance he was due under the
September 2006 employment agreement.
26. Because the actions taken by the Mayor, the Town Council, and other Town
employees were taken within the scope of their employment and/or role as the statutory
decision-makers for The Town, The Town is responsible for the actions of employees
based upon the doctrine of respondeat superior and strictly liable for the actions of
statutory decision-makers, such as the Mayor and Town Council.

IV. CLAIMS
COUNT I: CLAIM FOR DISCRIMINATION

IN VIOLATION OF THE ADA
27. Mr. Kelly incorporates herein by reference the preceding paragraphs of this
Complaint.
28. At all times relevant to this Complaint, Mr. Kelly was a qualified individual
with a disability, pursuant to the ADA.
30. In the alternative, Mr. Kelly was regarded by The Town as having such
impairments.
31. At all times relevant, however, Mr. Kelly could perform the essential
functions of his job as Town Attorney or Town Manager, as the case may be, with or
without an accommodation, depending on the specific essential function.
32. Prior to his requests for accommodations, Mr. Kelly was performing his
work at a satisfactory level and meeting or exceeding the legitimate business expectations
of The Town. Mr. Kelly did not receive negative performance evaluations except as
retaliation for having disabilities and/or asking for reasonable accommodations.
33. Mr. Kelly revealed his disabilities to his supervisors at The Town, and
requested the reasonable accommodations.
34. The Town discriminated and retaliated against Mr. Kelly by refusing to
appropriately engage in a dialogue with him with regard to disability accommodations,

ultimately denying Mr. Kelly’s accommodation requests, threatening and/or harassing
him, and treating Mr. Kelly differently, and less favorably than, similarly situated
employees – ultimately resulting in Mr. Kelly’s unlawful constructive discharge from
employment.
35. The Town would not have terminated Mr. Kelly’s employment, nor taken
the other discriminatory and retaliatory actions against him, but for Mr. Kelly’s
disabilities and/or requests for reasonable accommodations.
36. Any reasons given by The Town for its treatment of Mr. Kelly were
pretextual, as Mr. Kelly’s work performance was excellent.
37. Mr. Kelly’s termination from employment occurred under circumstances
that raise a reasonable inference of unlawful discrimination and retaliation based upon
his disabilities and/or requests for accommodations.
38. As a direct and proximate result of The Town’s actions, Mr. Kelly has
suffered and will continue to suffer pecuniary loss, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses.
39. At all times material hereto, The Town engaged in unlawful or
discriminatory practices with malice or reckless indifference to the federally protected
rights of Mr. Kelly so as to support an award of punitive damages.
40. The above-described acts by The Town and employees and/or statutory
decision-makers of The Town constitute disability discrimination and retaliation in
violation of the Americans with Disabilities Act, as codified under Title 42 U.S.C. §§ 12101
et seq., and the ADA Amendments Act of 2008 (“ADA”).

COUNT II: CLAIM FOR RETALIATION
IN VIOLATION OF THE ADA
Complaint.
impairments.
without an accommodation, depending on the specific essential function.
46. Prior to his requests for accommodations, Mr. Kelly was performing his
work at a satisfactory level and meeting or exceeding the legitimate business expectations
of The Town. Mr. Kelly did not receive negative performance evaluations except as
retaliation for having disabilities and/or asking for reasonable accommodations.
requested the reasonable accommodations.
48. The Town discriminated and retaliated against Mr. Kelly by refusing to
ultimately denying Mr. Kelly’s accommodation requests, threatening and/or harassing

employment.
49. The Town would not have terminated Mr. Kelly’s employment, nor taken
the other discriminatory and retaliatory actions against him, but for Mr. Kelly’s
disabilities and/or requests for reasonable accommodations.
51. Mr. Kelly’s termination from employment occurred under circumstances
that raise a reasonable inference of unlawful discrimination and retaliation based upon
his disabilities and/or requests for accommodations.
52. Moreover, after his termination, The Town refused to provide Mr. Kelly his
severance as referenced in the September 7, 2016 minutes.
53. The Town retaliated against Mr. Kelly regarding the denial of severance.
The Town would not have denied his severance, nor taken the other discriminatory and
retaliatory actions against him, but for Mr. Kelly’s disabilities and/or requests for
reasonable accommodations

decision-makers of The Town constitute disability discrimination and retaliation in
COUNT III: CLAIM FOR FAILURE

TO ACCOMMODATE IN VIOLATION OF THE ADA
Complaint.
59. Specifically, at all times relevant, Mr. Kelly suffered from ADA-recognized
disabilities, to-wit, anxiety, high blood pressure and depression for which he has been
required to take daily medication. These disabilities affected his various daily life
activities, including, but not limited to, sleeping, eating, breathing, and having normal
circulation.
impairments.
without an accommodation with respect to specific essential job functions.
requested reasonable accommodations of short breaks and reduced stress, among other
reasonable accommodations.
10

63. Prior to his request for disability accommodations, Mr. Kelly was
performing his work at a satisfactory level and meeting or exceeding the legitimate
business expectations of The Town, as he had not received negative performance reviews
except in retaliation for revealing his disabilities and/or requesting reasonable
accommodations.
64. The Town failed to accommodate Mr. Kelly’s disabilities by refusing to
effectively denying Mr. Kelly’s accommodation requests, threatening and/or harassing
employment.
65. The Town would not have constructively discharged Mr. Kelly from
employment, nor failed to accommodate him, but for his disabilities.
67. Mr. Kelly’s constructive discharge from employment occurred under
circumstances that raise a reasonable inference of unlawful discrimination and retaliation
based upon his disabilities and/or requests for accommodation.
11

decision-makers of The Town constitute failure to accommodate in violation of the
Americans with Disabilities Act, as codified under Title 42 U.S.C. §§ 12101 et seq., and the
ADA Amendments Act of 2008 (“ADA”).
COUNT IV: INTERFERENCE IN VIOLATION OF THE ADA
71. Plaintiff incorporates by reference herein the preceding paragraphs of his
complaint.
73. Specifically, at all times relevant, Mr. Kelly suffered from ADA-recognized
disabilities, to-wit, anxiety, high blood pressure and depression for which he has been
required to take daily medication. These disabilities affected his various daily life
activities, including, but not limited to, sleeping, eating, breathing, and having normal
circulation.
impairments.
without an accommodation with respect to specific essential job functions.
76. Mr. Kelly sought accommodations for his various disabilities. However, The
Town’s actions coerced Mr. Kelly to forgo accommodations to which he was otherwise
entitled.
12

77. Specifically, Mr. Kelly did not take short breaks, as a reasonable
accommodation, as he feared that he would receive written discipline or be terminated
for a pretextual reason.
78. The Town failed to accommodate Mr. Kelly’s disabilities by refusing to
effectively denying Mr. Kelly’s accommodation requests, threatening and/or harassing
employment.
79. The Town would not have constructively discharged Mr. Kelly from
employment, nor failed to accommodate him, but for his disabilities.
81. Mr. Kelly’s constructive discharge from employment occurred under
circumstances that raise a reasonable inference of unlawful interference based upon his
disabilities and/or requests for accommodation.
84. The Equal Employment Opportunity Commission has issued guidance,
pursuant to its authority under 42 U.S.C. § 12203(b), finding that the interference
13

provision of the Americans with Disabilities Act is wider in scope than the anti-retaliation
provision, and is, therefore, proven by a similar set of facts as the anti-retaliation
provision. See Equal Employment Opportunity Commission, EEOC Enforcement
Guidance on Retaliation and Related Issues, Number 915.004 (August 25, 2016),
available at https://www.eeoc.gov/laws/guidance/retaliation-
guidance.cfm?utm_content=&utm_medium=email&utm_name=&utm_source=govdeli
very&utm_term=#III._ADA.
decision-makers of The Town constitute interference with Mr. Kelly’s ADA rights in
COUNT V: BREACH OF CONTRACT
86. Plaintiff incorporates by reference herein the preceding paragraphs of this
Complaint.
87. Plaintiff and Defendant entered into a legally binding employment contract
on September 7, 2006.
88. The employment contract had been offered by The Town and duly adopted
by The Town’s statutory decision-makers.
89. Among several provisions of the employment contract, Mr. Kelly was due to
receive nine (9) months’ severance, based upon his current annual wage at the time he
left The Town’s employ.
90. Mr. Kelly was not paid the severance he was due at the time of his
constructive discharge from employment with The Town.
14

WHEREFORE, Plaintiff Gregory Warren Kelly prays for judgment against
Defendant Town of Abingdon, Virginia and for equitable relief, compensatory, incidental,
liquidated and/or punitive damages, together with prejudgment interest from the date of
Mr. Kelly’s termination from employment, and for costs and attorneys’ fees, and for such
other and further relief as may be just and equitable.
TRIAL BY JURY IS DEMANDED.
Respectfully Submitted,
GREGORY WARREN KELLY
/s/ Thomas E. Strelka______________

Thomas E. Strelka, Esq. (VSB# 75488)
L. Leigh R. Strelka, Esq. (VSB # 73355)
N. Winston West, IV, Esq. (VSB # 92598)
STRELKA LAW OFFICE, PC
Warehouse Row
119 Norfolk Avenue, S.W., Suite 330
Roanoke, VA 24011
Tel: 540-283-0802
thomas@strelkalaw.com
leigh@strelkalaw.com
winston@strelkalaw.com
Counsel for Plaintiff
15

Greg Kelly V Town of Abingdon

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Greg Kelly V Town of Abingdon

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

GREGORY WARREN KELLY, )

COMES NOW, Plaintiff Gregory Warren Kelly (hereinafter, “Mr. Kelly” or

Virginia (hereinafter, “Town” or “Defendant”), the following:

I. JURISDICTION AND VENUE

claims, to-wit, a breach of contract.

2. Venue is appropriate as the Plaintiff and Defendant reside in Abingdon,

Case 1:19-cv-00032-JPJ-PMS Document 1 Filed 08/18/19 Page 1 of 15 Pageid#: 1

4. As it relates to Plaintiff’s ADA claims, Plaintiff timely filed a charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”) on or

days of receipt of that Dismissal and Notice of Rights.

II. THE PARTIES

5. Mr. Kelly, a resident of Abingdon, Virginia, was hired by The Town in or

III. FACTUAL ALLEGATIONS

Attorney and later was appointed Town Manager.

8. At the time of Mr. Kelly’s appointment as Town Manager on September 7,

Meeting Minutes, attached as EXHIBIT B.

excellent, and met or exceeded The Town’s legitimate business expectations.

Case 1:19-cv-00032-JPJ-PMS Document 1 Filed 08/18/19 Page 2 of 15 Pageid#: 2

11. In the alternative, The Town regarded Mr. Kelly as disabled.

Council of Abingdon and the Mayor of Abingdon.

pervasive hostile working environment.

14. Despite performing his job exceptionally well, he was continuously

masking a discriminatory animus towards Mr. Kelly’s disabilities.

has been publicly ridiculed and defamed on several occasions.

environment in order to protect himself from worsening and depleting health.

Case 1:19-cv-00032-JPJ-PMS Document 1 Filed 08/18/19 Page 3 of 15 Pageid#: 3

18. On January 10, 2018, Mr. Kelly requested several reasonable

pleading as EXHIBIT C. Twelve possible accommodations were described in the letter

Town or the Town’s legal counsel.

21. Upon information and belief, no business-related legitimate reason justified

excellent and, until he requested federally protected disability accommodations to

22. Accordingly, Mr. Kelly’s constructive discharge was merely a pretext to

unlawful discrimination and retaliation by The Town, as Mr. Kelly’s constructive

Case 1:19-cv-00032-JPJ-PMS Document 1 Filed 08/18/19 Page 4 of 15 Pageid#: 4

discrimination and retaliation based upon his disabilities and/or reasonable

Kelly’s claims for discrimination and retaliation.

 discriminated and/or retaliated against Mr. Kelly because of his disabilities

and/or because of his requests for disability-related accommodations;

 failed to properly accommodate Mr. Kelly’s disabilities.

September 2006 employment agreement.

statutory decision-makers, such as the Mayor and Town Council.

Case 1:19-cv-00032-JPJ-PMS Document 1 Filed 08/18/19 Page 5 of 15 Pageid#: 5

COUNT I: CLAIM FOR DISCRIMINATION

with a disability, pursuant to the ADA.

without an accommodation, depending on the specific essential function.

retaliation for having disabilities and/or asking for reasonable accommodations.

requested the reasonable accommodations.

appropriately engage in a dialogue with him with regard to disability accommodations,

Case 1:19-cv-00032-JPJ-PMS Document 1 Filed 08/18/19 Page 6 of 15 Pageid#: 6

employees – ultimately resulting in Mr. Kelly’s unlawful constructive discharge from

disabilities and/or requests for reasonable accommodations.

pretextual, as Mr. Kelly’s work performance was excellent.

37. Mr. Kelly’s termination from employment occurred under circumstances

his disabilities and/or requests for accommodations.

39. At all times material hereto, The Town engaged in unlawful or

discriminatory practices with malice or reckless indifference to the federally protected