A Society Without a Name v. Commonwealth of Virginia

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

A SOCIETY WITHOUT A NAME, FOR 

PEOPLE WITHOUT A HOME,

MILLENNIUM FUTURE-PRESENT,

Plaintiff-Appellant,

v.

 No. 10-1437

COMMONWEALTH OF VIRGINIA,

trading as Virginia Commonwealth

University; CITY OF RICHMOND,

VIRGINIA; HOMEWARD,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, Senior District Judge.

(3:09-cv-00480-REP)

Argued: March 23, 2011

Decided: August 24, 2011

Before MOTZ and WYNN, Circuit Judges, and

Ronald Lee GILMAN, Senior Circuit Judge of the United

States Court of Appeals for the Sixth Circuit,

sitting by designation.

Affirmed by published opinion. Senior Judge Gilman wrote

the majority opinion. Judge Motz wrote a separate opinion

2 A SOCIETY WITHOUT A NAME v. VIRGINIA

concurring in part and dissenting in part. Judge Wynn wrote

a separate opinion concurring in part and dissenting in part.

COUNSEL

ARGUED: Henry Woods McLaughlin, III, LAW OFFICE

OF HENRY MCLAUGHLIN, PC, Richmond, Virginia, for

Appellant. Eric Blaine Martin, MCGUIREWOODS, LLP,

Richmond, Virginia; Brian Kraig Telfair, CITY ATTOR-

NEY’S OFFICE, Richmond, Virginia; Stephen Michael Hall,

OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,

Richmond, Virginia, for Appellees. ON BRIEF: Kenneth T.

Cuccinelli, II, Attorney General, Peter R. Messitt, Senior

Assistant Attorney General, Wesley G. Russell, Jr., Deputy

Attorney General, OFFICE OF THE ATTORNEY GEN-

ERAL OF VIRGINIA, Richmond, Virginia, for Appellee

Commonwealth of Virginia. Nicholas F. Simopoulos, CITY

ATTORNEY’S OFFICE, Richmond, Virginia, for Appellee

City of Richmond, Virginia. Christina M. Jones, Kenneth W.

Abrams, MCGUIREWOODS, LLP, Richmond, Virginia, for

Appellee Homeward.

OPINION

GILMAN, Senior Circuit Judge:

Plaintiff-Appellant A Society Without a Name, For People

Without A Home Millennium Future-Present (ASWAN) is an

unincorporated association made up of homeless and formerly

homeless people that advocates for their rights. On February

17, 2009, ASWAN sued defendants-appellees Common-

wealth of Virginia, doing business as Virginia Common-

wealth University (VCU), City of Richmond (City),

Homeward, a Virginia nonprofit corporation, and unidentified

John Doe(s). It alleged that the defendants had conspired to

A SOCIETY WITHOUT A NAME v. VIRGINIA 3

establish the Conrad Center on Oliver Hill Way, a site

removed from Richmond’s downtown community, for the

purpose of reducing the presence of the homeless population

in the downtown area by providing services for them in a

remote location. The Conrad Center began operating on Feb-

ruary 5, 2007.

ASWAN claimed that the relocation of homeless services

to the Conrad Center violated 42 U.S.C. §§ 1983 and 1985(3),

the Americans with Disabilities Act (ADA), the Equal Protec-

tion Clause of the Fourteenth Amendment, and the Fair Hous-

ing Act (FHA). The district court dismissed all of ASWAN’s

claims either because they failed to state a claim upon which

relief can be granted or because they were barred by the appli-

cable statute of limitations. For the reasons set forth below,

we affirm.

I. Background

ASWAN filed suit in Virginia state court, but Homeward

removed the action to federal court in accordance with 28

U.S.C. §§ 1441 and 1446. In its second amended complaint,

ASWAN alleged that the Conrad Center is located about two

miles from downtown Richmond; that this location is isolated

and removed from Richmond’s downtown community and

VCU’s campus; that the defendants took various actions to

pressure organizations that provided services to the homeless

in the downtown area, such as the Daily Planet, to relocate to

the Conrad Center; that the defendants took these actions to

make the homeless less visible to, and segregate them from,

Richmond’s downtown community and the VCU campus;

that creating the Conrad Center on Oliver Hill Way makes it

difficult for homeless people to travel between the Center and

the downtown area, an area that includes open spaces such as

Monroe Park located near VCU’s campus; and that the efforts

to make the homeless less visible have their roots in class,

race, and disability prejudice. ASWAN contends there is a

strong link between homelessness and disability, asserting

4 A SOCIETY WITHOUT A NAME v. VIRGINIA

that the public generally perceives and regards homeless peo-

ple as being disabled due to mental illness, alcoholism, and

substance abuse.

In addition to claiming that the defendants’ actions violated

the ADA, the FHA, and 42 U.S.C. § 1985(3), ASWAN

asserted that VCU retaliated against it in violation of the ADA

for bringing this suit by withdrawing VCU’s earlier promise

to help pay the cost of transporting homeless people to and

from the Conrad Center. ASWAN separately alleged that the

City violated the Equal Protection Clause and 42 U.S.C.

§ 1983.

In response to ASWAN’s complaint, all of the defendants

filed motions to dismiss, arguing, among other things, that

ASWAN’s complaint failed to state a claim upon which relief

can be granted and/or that the claims were barred by the

applicable statute of limitations. The magistrate judge

assigned to the case recommended that the motions be granted

for the following reasons:

• ASWAN’s conspiracy claim under 42 U.S.C.

§ 1985(3) should be dismissed "because it is

comprised of conclusory allegations unsupported

by concrete facts" and therefore fails to state a

plausible conspiracy claim.

• ASWAN’s ADA, FHA, equal-protection, and

§ 1983 claims should be dismissed because they

fall outside the applicable statute of limitations.

• ASWAN’s claim that VCU retaliated against

ASWAN for bringing this suit in violation of the

ADA should be dismissed because (1) ASWAN

failed to allege the necessary elements of a retali-

ation claim, and (2) VCU was not obligated to

help pay the cost of transporting homeless people

to and from the Conrad Center, so VCU’s with-

A SOCIETY WITHOUT A NAME v. VIRGINIA 5

drawal of its earlier promise to help pay these

transportation costs, which occurred after

ASWAN filed suit, does not amount to a discrim-

inatory act or an adverse action.

The district court adopted the magistrate judge’s Report

and Recommendation in its entirety and dismissed ASWAN’s

lawsuit. ASWAN now appeals.

II. Analysis

A. Standard of review

"To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, ‘to state a claim to

relief that is plausible on its face.’" Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twom-

bly, 550 U.S. 544, 570 (2007)). A court decides whether this

standard is met by separating the legal conclusions from the

factual allegations, assuming the truth of only the factual alle-

gations, and then determining whether those allegations allow

the court to reasonably infer that "the defendant is liable for

the misconduct alleged." Id. at 1949-50. In other words, the

factual allegations (taken as true) must "permit the court to

infer more than the mere possibility of misconduct." Id. at

1950.

Facts pled that are "merely consistent with" liability are not

sufficient. Id. at 1949 (quoting Twombly, 550 U.S. at 557).

"Threadbare recitals of the elements of a cause of action, sup-

ported by mere conclusory statements, [similarly] do not suf-

fice," because "we are not bound to accept as true a legal

conclusion couched as a factual allegation." Id. at 1949-50

(internal quotation marks omitted).

In addition, where a conspiracy is alleged, the plaintiff

must plead facts amounting to more than "parallel conduct

and a bare assertion of conspiracy . . . . Without more, parallel

6 A SOCIETY WITHOUT A NAME v. VIRGINIA

conduct does not suggest conspiracy, and a conclusory allega-

tion of agreement at some unidentified point does not supply

facts adequate to show illegality." Twombly, 550 U.S. at 556-

57 (reasoning that allegations of parallel conduct were insuffi-

cient to state a claim for a conspiracy under the Sherman Act).

The factual allegations must plausibly suggest agreement,

rather than being merely consistent with agreement. Id. at

557.

B. Conspiracy claim under § 1985(3)

The first issue on appeal is whether ASWAN’s complaint

stated a valid 42 U.S.C. § 1985(3) conspiracy claim. To state

such a claim under 42 U.S.C. § 1985(3), a plaintiff must

prove the following:

(1) a conspiracy of two or more persons, (2) who are

motivated by a specific class-based, invidiously dis-

criminatory animus to (3) deprive the plaintiff of the

equal enjoyment of rights secured by the law to all,

(4) and which results in injury to the plaintiff as (5)

a consequence of an overt act committed by the

defendants in connection with the conspiracy.

Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995). More-

over, the plaintiff "must show an agreement or a meeting of

the minds by [the] defendants to violate the [plaintiff’s] con-

stitutional rights." Id. at 1377 (internal quotation marks omit-

ted). "[W]e have specifically rejected section 1985 claims

whenever the purported conspiracy is alleged in a merely con-

clusory manner, in the absence of concrete supporting facts."

Id.

ASWAN alleges that a conspiracy has existed since at least

1995 to "segregate . . . homeless people and to reduce the visi-

bility of black homeless people and ADA protected people

and handicapped homeless people from Richmond’s main-

stream, its downtown," which includes VCU’s main campus

A SOCIETY WITHOUT A NAME v. VIRGINIA 7

and the surrounding majority-white neighborhoods. But on

the required element of a conspiracy of two or more persons,

the complaint alleges nothing more specific than statements

that the "Doe(s) and the City entered into a conspiracy," that

they had a "meeting of the minds that they would act in con-

cert with VCU" to pressure the Daily Planet to relocate to Oli-

ver Hill Way, and that "Homeward was created as part of the

conspiracy and . . . became part of the conspiracy."

ASWAN’s claim that the defendants conspired to force

homeless people out of downtown Richmond by relocating

homeless services to Oliver Hill Way fails because it is com-

prised almost entirely of conclusory allegations unsupported

by concrete facts. For example, the allegations that "Doe(s)

and the City entered into a conspiracy" and that "Homeward

was created as part of the conspiracy and . . . became part of

the conspiracy" are "[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements,"

and are therefore not sufficient to state a claim. See Iqbal, 129

S. Ct. at 1949-50.

As the magistrate judge found, "ASWAN fails to allege

with any specificity the persons who agreed to the alleged

conspiracy, the specific communications amongst the conspir-

ators, or the manner in which any such communications were

made." The allegations are thus insufficient to support a meet-

ing of the minds by the defendants. At most, ASWAN’s alle-

gations amount to "parallel conduct and a bare assertion of a

conspiracy." See Twombly, 550 U.S. at 556. This is not

enough to survive a motion to dismiss.

C. ADA, § 1983, and equal-protection claims

The next issue is whether ASWAN’s ADA, § 1983, and

equal-protection claims are barred by the applicable statute of

limitations. Answering this question requires that we first

determine the limitations period for each type of claim.

8 A SOCIETY WITHOUT A NAME v. VIRGINIA

Title II of the ADA does not contain a statute of limitations.

Although "Congress enacted a catchall 4-year statute of limi-

tations for actions arising under federal statutes enacted after

December 1, 1990," Jones v. R.R. Donnelley & Sons Co., 541

U.S. 369, 371 (2004) (citing 28 U.S.C. § 1658), the ADA was

enacted on July 26, 1990, see 104 Stat. 327, 327. We there-

fore borrow the state statute of limitations that applies to the

most analogous state-law claim. See 42 U.S.C. § 1988; Wilson

v. Garcia, 471 U.S. 261, 266-67 (1985), partially superseded

by statute as stated in Jones, 541 U.S. at 377-80.

The district court concluded that Virginia’s one-year limita-

tions period for claims under the Virginia Rights of Persons

with Disabilities Act (hereafter, the Virginia Disabilities Act),

Va. Code Ann. § 51.5-40 et seq., should apply to the ADA

claims here, and the parties do not dispute this conclusion on

appeal. See Childress v. Clement, 5 F. Supp. 2d 384, 388

(E.D. Va. 1998) (holding that the Virginia Disabilities Act

constitutes the most analogous state statute of limitations for

claims brought under the ADA).

This court has not previously determined what limitations

period governs ADA claims brought in Virginia. But we have

held that the Virginia Disabilities Act provides the limitations

period for claims brought under the Federal Rehabilitation

Act in Virginia because of the similarities between these acts.

Wolsky v. Med. Coll. of Hampton Roads, 1 F.3d 222, 225 (4th

Cir. 1993). And we have held that we apply the same substan-

tive analysis to both the ADA and the Rehabilitation Act

"[b]ecause the language of the two statutes is substantially the

same." Doe v. Univ. of Maryland Med. Sys. Corp., 50 F.3d

1261, 1264 n.9 (4th Cir. 1995). Moreover, the Virginia Dis-

abilities Act itself expressly acknowledges its close connec-

tion to both the Rehabilitation Act and the ADA: "The

Virginia Office for Protection and Advocacy shall promulgate

such regulations as may be necessary to implement this sec-

tion. Such regulations shall be consistent, whenever applica-

ble, with regulations imposed under the federal Rehabilitation

A SOCIETY WITHOUT A NAME v. VIRGINIA 9

Act of 1973, as amended, and the federal Americans with Dis-

abilities Act of 1990." Va. Code Ann. § 51.5-40 (footnotes

omitted). We therefore agree with the district court’s conclu-

sion that the one-year limitations period in the Virginia Dis-

abilities Act applies to ADA claims brought in Virginia.

With regard to the § 1983 and equal-protection claims, the

statute-of-limitations period for both is two years. Lewis v.

Richmond City Police Dept., 947 F.2d 733, 735 (4th Cir.

1991) (§ 1983 claims); Al-Amin v. Shear, 325 F. App’x 190,

193 n.2 (4th Cir. 2009) (equal-protection claims). The parties

do not dispute this conclusion.

The applicable statute of limitations begins to run once a

claim accrues, and federal law controls that determination.

Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975). A civil rights

claim accrues when the plaintiff "knows or has reason to

know of the injury which is the basis of the action." Id. At the

very latest, ASWAN knew or should have known of its pur-

ported injury stemming from the alleged conspiracy to relo-

cate homeless services from downtown to Oliver Hill Way

when the Conrad Center opened on February 5, 2007. So even

for the claims with a two-year limitations period, ASWAN’s

suit should have been filed no later than February 5, 2009.

Because ASWAN’s complaint was not filed until February

17, 2009, those claims are time barred.

ASWAN attempts to avoid this result by claiming that cer-

tain acts of the defendants constituted a continuing violation

of the ADA. "In general, to establish a continuing violation[,]

the plaintiff must establish that the unconstitutional or illegal

act was a fixed and continuing practice." Nat’l Adver. Co. v.

City of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991) (brack-

ets, ellipses, and internal quotation marks omitted). In other

words, if the plaintiff can show that the illegal act did not

occur just once, but rather "in a series of separate acts[,] and

if the same alleged violation was committed at the time of

each act, then the limitations period begins anew with each

10 A SOCIETY WITHOUT A NAME v. VIRGINIA

violation." Id. at 1167 (internal quotation marks omitted). But

continual unlawful acts are distinguishable from the continu-

ing ill effects of an original violation because the latter do not

constitute a continuing violation. Id. at 1166.

ASWAN claims that the following actions constitute a con-

tinuing violation of the ADA: (1) VCU’s withdrawal of its

promise to help pay the cost of transporting homeless people

to and from the Conrad Center, which withdrawal was alleg-

edly made in retaliation for ASWAN’s filing the present law-

suit; (2) the attempt by VCU and Homeward in 2009 to

persuade various organizations to relocate feeding programs

from Monroe Park to the Conrad Center; and (3) the City’s

communication to homeless people in 2009 that they would

need to travel to the Conrad Center to sign up for the down-

town overnight shelter.

The first action does not establish a continuing violation

because it is an allegation of an entirely new violation—a

retaliation claim instead of a discrimination claim. See id. at

1167 (concluding that a continuing violation requires that "the

same alleged violation was committed at the time of each act"

(internal quotation marks omitted)). And the second and third

actions essentially deal with decisions to add new services for

the homeless at the Conrad Center. The fact that the Conrad

Center is still located on Oliver Hill Way and continues to

offer services to the homeless—including new services that

are added from time to time—does not amount to a continuing

violation, but rather amounts to the continuing effect of the

original decision to locate the Conrad Center on Oliver Hill

Way. See Jersey Heights Neighborhood Ass’n v. Glendening,

174 F.3d 180, 189 (4th Cir. 1999) ("At bottom, appellants’

continuing violation argument rests on the alleged ongoing

effects of the original decision to locate the highway in prox-

imity to Jersey Heights.") ASWAN’s ADA, § 1983, and

equal-protection claims are therefore time barred.

A SOCIETY WITHOUT A NAME v. VIRGINIA 11

D. FHA claims

We will now address whether the district court erred in dis-

missing ASWAN’s FHA claims. The district court determined

that ASWAN’s FHA claims, which have a two-year statute of

limitations, see 42 U.S.C. § 3613(a)(1)(A), were also time

barred because ASWAN filed suit more than two years after

the opening of the Conrad Center.

ASWAN responds by arguing that the accrual date for its

FHA claims is not the opening of the Conrad Center in Febru-

ary 2007, but rather when the Center first offered intake ser-

vices to the homeless that allowed them to sign up for the

overnight shelter that continued to be located downtown. This

took place in April 2007. ASWAN alleges that the relocation

of the intake services violated the FHA by running afoul of

the statutory sections that prohibit discrimination in the provi-

sion of housing services. See 42 U.S.C. § 3604(b), (f)(2). Sim-

ilarly, ASWAN contends that the FHA was violated by the

City’s communication to homeless people in 2009 that they

would need to travel to the Conrad Center to sign up for the

downtown overnight shelter using the intake services.

There are two problems with ASWAN’s argument. One is

that the time gap between the opening of the Conrad Center

and the actions complained of is not material because

ASWAN knew or should have known that intake services

were going to be shifted there from the very conception of the

Center. In other words, the relocation of intake services is

simply another continuing effect of the original decision to

locate the Conrad Center on Oliver Hill Way. Indeed,

ASWAN admits as much by arguing in its own brief that if

the defendants had not conspired to establish the Conrad Cen-

ter on Oliver Hill Way, then "there would have been no Con-

rad Center on Oliver Hill Way to receive relocation of the

[intake services] and the City’s processing of applications for

access to overflow shelter downtown on very cold nights."

12 A SOCIETY WITHOUT A NAME v. VIRGINIA

The other problem with ASWAN’s argument is that the

intake services to sign up for overnight shelter do not consti-

tute "services" within the meaning of the FHA. As explained

by this court in Jersey Heights:

The Fair Housing Act’s services provision simply

requires that "such things as garbage collection and

other services of the kind usually provided by

municipalities" not be denied on a discriminatory

basis. [Mackey v. Nationwide Ins. Cos., 724 F.2d

419, 424 (4th Cir. 1984).] It does not extend to every

activity having any conceivable effect on neighbor-

hood residents. See id. (hazard insurance is not a

"service"); Clifton Terrace Assocs., Ltd. v. United

Techs. Corp., 929 F.2d 714, 720 (D.C. Cir. 1991)

(elevator manufacturer is not a provider of "ser-

vices"); Southend Neighborhood Improvement Ass’n

[v. St. Clair County, 743 F.2d 1207, 1210 (7th Cir.

1984)] (maintenance of county-owned neighborhood

property is not a "service"); Laramore v. Illinois

Sports Facilities Auth., 722 F. Supp. 443, 452 (N.D.

Ill. 1989) (stadium site selection is not the provision

of a "service"). "To say that every discriminatory

municipal policy is prohibited by the Fair Housing

Act would be to expand that Act to a civil rights stat-

ute of general applicability rather than one dealing

with the specific problems of fair housing opportuni-

ties." Clifton Terrace Assocs., 929 F.2d at 720 (quot-

ing Vercher v. Harrisburg Housing Auth., 454 F.

Supp. 423, 424 (M.D. Pa. 1978)).

Although Jersey Heights dealt with the meaning of "ser-

vices" in 42 U.S.C. § 3604(b), the term has the same meaning

in § 3604(f)(2) because the relevant language is materially the

same. Compare 42 U.S.C. § 3604(b) with 42 U.S.C.

§ 3604(f)(2); see also Smith v. Pac. Prop. and Dev. Corp.,

358 F.3d 1097, 1103 (9th Cir. 2004) (concluding that the lan-

guage of § 3604(f)(2), which governs discrimination based on

A SOCIETY WITHOUT A NAME v. VIRGINIA 13

handicap, is otherwise materially identical to § 3604(b),

which governs discrimination based on race, color, religion,

sex, familial status, or national origin).

Intake services to sign up for a homeless shelter are simply

not within the type of services covered by the FHA because

they are unlike "services generally provided by governmental

units such as police and fire protection or garbage collection."

See Southend, 743 F.2d at 1210. Indeed, in the present case,

the intake services are provided by Catholic Charities, a non-

profit organization, and not by any governmental unit.

Because the intake services in question do not fall within the

ambit of the FHA, ASWAN’s FHA claims are barred by the

two-year statute of limitations and, more fundamentally, they

fail to state a claim upon which relief can be granted.

E. Retaliation claim under the ADA

The final issue on appeal is whether the district court erred

in dismissing ASWAN’s ADA retaliation claim against VCU.

ASWAN contends that VCU retaliated against ASWAN by

retracting VCU’s earlier promise to help pay the cost of trans-

porting homeless people to and from the Conrad Center.

The ADA’s retaliation provision provides, in relevant part,

that "[n]o person shall discriminate against any individual

because such individual . . . made a charge . . . under this

Chapter." 42 U.S.C. § 12203(a). To establish a prima facie

retaliation claim under the ADA, plaintiffs must allege (1)

that they engaged in protected conduct, (2) that they suffered

an adverse action, and (3) that a causal link exists between the

protected conduct and the adverse action. Rhoads v. F.D.I.C.,

257 F.3d 373, 392 (4th Cir. 2001). ASWAN argues that it sat-

isfies this test because (1) its ADA claims against VCU in this

lawsuit constitute protected conduct, (2) VCU’s withdrawal of

its earlier promise to help pay the cost of transporting home-

less people constitutes an adverse action against ASWAN and

14 A SOCIETY WITHOUT A NAME v. VIRGINIA

its members, and (3) the reason for VCU’s reversal was to

retaliate against ASWAN for bringing this lawsuit.

As ASWAN admits, however, VCU was under no obliga-

tion to help pay the cost of transporting homeless people to

and from the Conrad Center. And retracting a gratuitous

promise does not amount to a discriminatory act or an adverse

action. See Stiltner v. Beretta U.S.A. Corp., 74 F.3d 1473,

1482-84 (4th Cir. 1996) (en banc) (holding that the employ-

er’s revocation of gratuitous healthcare benefits did not vio-

late ERISA’s anti-retaliation provision). Although Stiltner

involves ERISA’s anti-retaliation provision (29 U.S.C.

§ 1140), that provision and the ADA’s retaliation pro-

vision (42 U.S.C. § 12203(a)) use the identical

phrase—"discriminate against"—to describe what constitutes

an adverse action, and Stiltner expressly held that revoking a

gratuitous benefit does not fit within this language. Id.

Because VCU’s alleged promise to help pay the cost of

transporting homeless people to and from the Conrad Center

is gratuitous, VCU’s retraction of this promise does not

amount to an adverse action. We therefore conclude that the

district court properly dismissed ASWAN’s ADA retaliation

claim against VCU.

III. Conclusion

For all of the reason set forth above, we affirm the judg-

ment of the district court.

AFFIRMED

DIANA GRIBBON MOTZ, Circuit Judge, concurring in part

and dissenting in part:

I concur in Judge Gilman’s opinion with one exception. In

my view, the text of the ADA and controlling precedent

require the conclusion that ASWAN has alleged a cognizable

A SOCIETY WITHOUT A NAME v. VIRGINIA 15

ADA retaliation claim against VCU. ASWAN may not be

able to prove this claim, but it should have been afforded the

opportunity to do so. My colleagues err in affirming the dis-

trict court’s dismissal of this claim.

I.

On February 17, 2009, ASWAN filed its first complaint in

state court. After defendants removed the case to federal court

and filed motions to dismiss, the district judge denied the

motions without prejudice but ordered ASWAN to clarify the

complaint in separately numbered counts identifying the "spe-

cific statute alleged to have been violated."

On November 19, 2009, ASWAN filed its second amended

complaint and in it alleges a retaliation claim against VCU in

separately numbered counts and identifies the ADA as the

source of this cause of action. Specifically, ASWAN alleges

that sometime in 2008 or 2009, the Daily Planet (an affiliate

of ASWAN) acquired a passenger van to transport homeless

people from downtown to the Conrad Center; many of these

homeless people were disabled. ASWAN alleges that VCU

agreed to "provide some funding to the Daily Planet" to offset

a portion of these transportation costs. ASWAN further

alleges that after it filed its original complaint in February

2009, VCU retracted its "agreement" with the Daily Planet in

order to "punish" ASWAN by (1) "depriving its members . . .

of the benefit of transportation"; and (2) "showing" ASWAN

that "its decision to file a civil rights lawsuit against VCU had

backfired, hurting the very homeless people" ASWAN seeks

to serve.

II.

The ADA provides that "[n]o person shall discriminate

against any individual because such individual has opposed

any act or practice made unlawful by [the ADA]." 42 U.S.C.

§ 12203(a). To state an ADA retaliation claim, ASWAN must

16 A SOCIETY WITHOUT A NAME v. VIRGINIA

allege that (1) it engaged in protected conduct, (2) suffered an

adverse action, and (3) a causal link exists between the pro-

tected conduct and the adverse action. Rhoads v. F.D.I.C., 257

F.3d 373, 392 (4th Cir. 2001).

VCU does not maintain that it arrived at its decision not to

provide funding for transportation to the Conrad Center inde-

pendent from this lawsuit. Rather, VCU conceded at oral

argument that there was a "causal link" between its decision

not to honor the transportation funding agreement and the fil-

ing of this lawsuit by ASWAN. See also Hunt-Golliday v.

Metro. Water Reclamation Dist. of Greater Chi., 104 F.3d

1004, 1011 (7th Cir. 1997) (holding "suspicious timing" as

"circumstantial" evidence to support retaliation claim). VCU

maintains, however, that this causal link does not provide the

basis for an ADA retaliation claim.

VCU’s principal contention on appeal is that ASWAN

lacked any "reasonable, good faith belief" that VCU violated

the ADA and that ASWAN’s lawsuit therefore did not consti-

tute the sort of activity protected by the ADA. As a fallback

position, VCU asserts that its agreement to fund transporta-

tion to the Daily Planet constitutes a gratuitous benefit and so

its decision to withdraw this benefit cannot amount to unlaw-

ful retaliation.

Given that the majority relies on VCU’s fallback position,

I first address that argument and then VCU’s principal argu-

ment on this point.

III.

Five years ago, in the Title VII context, the Supreme Court

interpreted precisely the same language as that at issue here—

"discriminated against"—and held that it "refers to distinc-

tions or differences in treatment that injure protected individu-

als." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,

59 (2006). The Court explained that Congress intended this

A SOCIETY WITHOUT A NAME v. VIRGINIA 17

broad language to "prevent[ ]" a public entity from "interfer-

ing . . . with . . . efforts to secure or advance enforcement of

the" underlying statute. Id. at 63. The retaliation must merely

be "materially adverse" to a reasonable person, i.e. sufficient

to "dissuade[ ] a reasonable [person] from" charging discrimi-

nation. Id. at 68 (internal quotation omitted). Ultimately,

"[c]ontext matters," making discovery particularly appropriate

to flesh out factually plausible allegations. Id. at 69.

Faithfully applying these principles seems to me to require

the conclusion that ASWAN has alleged a clear case of ADA-

barred retaliation. Revoking funding for transportation repre-

sents a "materially adverse" action that could dissuade a rea-

sonable disabled homeless person from asserting his or her

rights under the ADA.

Our holding in Stiltner v. Beretta U.S.A. Corp., 74 F.3d

1473, 1484 (4th Cir. 1996) (en banc), that revocation of gratu-

itous benefits fails to qualify as an adverse action for purposes

of ERISA’s retaliation provision, does not counsel a different

result. In Stiltner, we explained that Congress modeled

ERISA’s retaliation provision on parallel language in the

National Labor Relations Act (NLRA), and so we looked to

the NLRA to determine the meaning of that language. Id. at

1482-84. It was this NLRA-focused inquiry that led us to con-

clude that revoking gratuitous benefits does not constitute

adverse action for purposes of ERISA. Id. But that holding,

which we based on the labor-specific statutory context that

confronted us, provides little guidance here.

In interpreting the ADA, we must look not to unrelated

labor statutes, but to Title VII of the Civil Rights Act. See A

Helping Hand, LLC v. Baltimore County, MD, 515 F.3d 356,

362 (4th Cir. 2008). Given that the ADA’s anti-retaliation

provision is identical to Title VII’s, the standard laid out by

the Supreme Court for purposes of Title VII controls in this

ADA case.* See Penny v. United Parcel Service, 128 F.3d

*That Title VII generally governs employment discrimination does not

render the Title VII standard any less applicable. The Supreme Court has

18 A SOCIETY WITHOUT A NAME v. VIRGINIA

408, 417 (6th Cir. 1997); Stewart v. Happy Herman’s Chesh-

ire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997). And

under that standard, the retraction of gratuitous benefits con-

stitutes adverse action. See Thompson v. Potomac Electric

Power Co., 312 F.3d 645, 650-51 (4th Cir. 2002) (noting that

Title VII retaliation encompasses "any retaliatory act" that

"adversely affected . . . benefits" (internal quotation omitted));

see also Morales-Vallellanes v. Potter, 605 F.3d 27, 36 (1st

Cir. 2010) (noting that Title VII "adverse employment

actions" include the imposition of "a less distinguished title"

or "a material loss in benefits" (internal quotation omitted));

Passer v. Am. Chem. Soc., 935 F.2d 322, 331 (D.C. Cir. 1991)

(rejecting argument that cancellation of a voluntary sympo-

sium was the withdrawal of a "mere ‘gratuity’" and thus inca-

pable of constituting retaliation).

IV.

Perhaps recognizing that its fallback argument lacks any

doctrinal support, VCU principally argues that ASWAN’s

retaliation claim fails because ASWAN assertedly had no

"reasonable, good faith belief" that the ADA had been vio-

lated. Freilich v. Upper Chesapeake Health, Inc., 313 F.3d

205, 216 (4th Cir. 2002). Specifically, VCU contends that

ASWAN could not have reasonably believed that "[1] a hill

is a ‘barrier’ under the ADA; [2] filing this suit years later

could prevail; [3] a donor of land can be treated like a segre-

gating zoning authority; or [4] segregating someone from ‘the

specifically rejected the argument that the unique context of employment

animates Title VII’s antiretaliation provision. See Burlington Northern,

548 U.S. at 64-67. Instead, the Court has broadly construed that provision

to encompass retaliation outside of the workplace, recognizing that the

"primary purpose" of that provision is not to address employment discrimi-

nation per se, but instead to "maintain[ ] unfettered access to statutory

remedial mechanisms." Id. at 64 (internal quotation and brackets omitted).

It is this concern—protecting access to a civil rights remedial mechanism

—that demands we give the ADA the same broad construction.

A SOCIETY WITHOUT A NAME v. VIRGINIA 19

downtown mainstream’ segregates them because of a disabil-

ity." Appellee’s Br. at 14. Each of these contentions fail.

First, governing regulations clearly prohibit public entities

from "mak[ing] selections" for "determining the site or loca-

tion of a facility" that "have the effect of excluding" the dis-

abled. 28 C.F.R. § 35.130(b)(4). Thus, ASWAN could

reasonably believe that selecting a hill for the location of a

facility frequented by a substantial disabled population vio-

lates this regulation.

Second, limitations is an affirmative defense that a defen-

dant, not a plaintiff, must prove; ASWAN opposed an "act or

practice made unlawful" by the ADA, which limitations does

not necessarily bar. Moreover, no case law exists assessing

whether a clearly meritorious affirmative defense negates a

"reasonable, good faith belief" of an "act or practice made

unlawful" by the ADA. Further, no appellate court had even

settled the question of which statute of limitations applies in

Virginia, making it hard for ASWAN to "reasonably believe"

its claims time-barred given that the ADA itself does not pre-

scribe a limitations period.

Third, a public entity that donates land may well be treated

as a segregating zoning authority because the regulations pro-

hibit "a public entity, in providing any aid, benefit, or service

. . . directly or through contractual, licensing, or other

arrangements," from denying a disabled person access to the

benefit. 28 C.F.R. § 35.130(b)(1)(i)-(vii) (emphasis added).

Finally, the governing regulations also provide that a public

entity may not "subject[ ]" a disabled person to "discrimina-

tion," including segregationist policies. 28 C.F.R. § 35.130(a);

see also § 35.130(d) ("A public entity shall administer ser-

vices . . . in the most integrated setting appropriate to the

needs of [the disabled]."); Olmstead v. L.C., 527 U.S. 581,

588-89 (1999) (Congress specifically identified "segregation"

of the disabled as a problem addressed by the ADA).

20 A SOCIETY WITHOUT A NAME v. VIRGINIA

V.

In sum, I believe ASWAN has pled allegations sufficient to

state an ADA retaliation claim. Accordingly, I would reverse

the contrary judgment of the district court as to that claim.

WYNN, Circuit Judge, concurring in part and dissenting in

part:

Like Judge Motz, I join Judge Gilman’s conclusion that the

conspiracy claim was properly dismissed because an agree-

ment was not sufficiently alleged. I also join Judge Gilman’s

conclusion that the retaliation claim was properly dismissed

because Virginia Commonwealth University’s ("VCU")

alleged promise to provide transportation was merely gratu-

itous. However, I disagree with Judge Gilman’s and Judge

Motz’s conclusion that A Society Without A Name’s

("ASWAN") claims under the Fair Housing Act ("FHA"),

Americans With Disabilities Act ("ADA"), Equal Protection

Clause, and 42 U.S.C. § 1983 accrued when the Conrad Cen-

ter opened and that subsequent acts alleged in the Second

Amended Complaint do not constitute continuing violations.1

Because I conclude that ASWAN plausibly alleged continu-

ing violations against Homeward, VCU, and the City of Rich-

mond, I must respectfully dissent in part.

The majority opinion correctly observes that ASWAN’s

FHA, equal protection and § 1983 claims are subject to a two-

year limitations period, and its ADA claims are subject to a

one-year statute of limitations. 42 U.S.C. § 3613(a) (FHA);

Al-Amin v. Shear, 325 F. App’x 190, 193 (4th Cir. 2009)

(unpublished) (equal protection and § 1983 claims); Wolsky v.

Med. Coll. of Hampton Roads, 1 F.3d 222, 223 (4th Cir.

1993) (ADA). When considering whether a continuing viola-

tion is alleged, however, "The Supreme Court has ‘stressed

1

For convenience, I hereafter refer to this particular conclusion as "the

majority opinion."

A SOCIETY WITHOUT A NAME v. VIRGINIA 21

the need to identify with care the specific [discriminatory]

practice that is at issue.’" Garcia v. Brockway, 526 F.3d 456,

462 (9th Cir. 2008) (en banc) (quoting Ledbetter v. Goodyear

Tire & Rubber Co., 550 U.S. 618, 624 (2007)); see also

Havens Realty Corp. v. Coleman, 455 U.S. 363, 380 (1982)

(focusing on "the continuing nature of the alleged violation");

Nat’l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1168 (4th

Cir. 1991) (examining the "nature of the wrongful conduct

and harm alleged") (quotation marks omitted). Here, ASWAN

alleges at length in its ninety-five-page Second Amended

Complaint that the defendants have engaged, since at least the

early 1990s, in a series of calculated and discriminatory acts

designed to isolate homeless persons from Richmond’s down-

town, mainstream community.2 ASWAN alleges that the

2

I give here only a brief summary of the exhaustive and detailed allega-

tions of historical facts (many of which are substantiated by documents in

the Joint Appendix) leading to the recent isolation efforts that are the gra-

vamen of the Second Amended Complaint. ASWAN alleges that through

most of the ‘80s and ‘90s, the Daily Planet provided overnight shelter,

daytime residency, meals, and employment assistance services to Rich-

mond’s homeless population at the Street Center, which was located on

West Canal Street downtown. ASWAN further alleges that: In 1993, the

City of Richmond sold the West Canal Street location and promised to

assist in finding a new site for the Street Center. The Daily Planet settled

on a site on West Grace Street "in Richmond’s mainstream near VCU’s

campus." Despite a substantial grant from the United States Department

of Housing and Urban Development to purchase and develop the West

Grace Street site, the Daily Planet did not pursue the site because VCU

and the City threatened to curtail financial support. VCU and the City con-

certedly dissuaded the Daily Planet from pursuing other locations, includ-

ing the City’s restrictive zoning ordinances, which became the subject of

a 1997 lawsuit. VCU and the City persistently urged the Daily Planet to

relocate its services for the homeless on 17th Street (later renamed Oliver

Hill Way). In 1997, the City adopted the Downtown Plan, which stated a

policy of relocating services for homeless and other defined "street per-

sons" away from downtown. Because of the Daily Planet’s unwillingness

to accept the Oliver Hill Way location, the defendants allegedly proposi-

tioned Freedom House, another provider of homeless services in Rich-

mond. Freedom House accepted the proposal, leased the Oliver Hill Way

site from VCU, obtained from the City a special use permit to build a

homeless shelter, and opened the doors of the Conrad Center on February

5, 2007.

22 A SOCIETY WITHOUT A NAME v. VIRGINIA

defendants have only recently achieved this discriminatory

isolation, essentially by two means: first, by the siting and

construction of the Conrad Center in an allegedly remote

location; and second, by the piecemeal relocation of services

for homeless persons from the downtown community to the

Conrad Center. See, e.g., Familystyle of St. Paul, Inc. v. City

of St. Paul, Minn., 923 F.2d 91, 93-94 (8th Cir. 1991)

(upholding city ordinance tending to integrate and refusing to

"agree that Congress intended the Fair Housing Amendment

Act of 1988 to contribute to the segregation of the mentally

ill from the mainstream of our society"); see also Human Res.

Research & Mgmt. Grp., Inc. v. Cnty. of Suffolk, 687 F. Supp.

2d 237, 253-54 (E.D.N.Y. 2010) (citing Bryant Woods Inn,

Inc. v. Howard Cnty., Md., 911 F. Supp. 918, 946 (D. Md.

1996)).

The Second Amended Complaint alleges that the system-

atic relocation of services—not the siting, construction or

opening of the Conrad Center—is the practice that is causing

homeless persons to be isolated from downtown Richmond.

Therefore, I cannot join the view of the Magistrate Judge and

the majority opinion that "ASWAN knew or should have

known of its purported injury stemming from the alleged con-

spiracy to relocate homeless services from downtown to Oli-

ver Hill Way when the Conrad Center opened on February 5,

2007." Ante at 9.

Certainly, ASWAN suffered no discriminatory treatment

by the mere construction or opening of the Conrad Center if

its members could continue to receive needed services in the

downtown, mainstream community. Rather, it is the reloca-

tion of those services, allegedly with the discriminatory

motive of isolating homeless persons from downtown, that is

the actionable injury. Cf. Frame v. City of Arlington, 616 F.3d

476, 489 (5th Cir. 2010) (in action alleging that city’s impass-

able, and thus ADA noncompliant, sidewalks and pathways

inhibited access by disabled persons to city’s services, pro-

grams or activities, statute of limitations ran from date plain-

A SOCIETY WITHOUT A NAME v. VIRGINIA 23

tiff knew she was denied access to program, service or

activity, not date pathway was constructed), reh’g en banc

granted, 632 F.3d 177 (2011); Fair Housing Council, Inc. v.

Village of Olde St. Andrews, Inc., 210 F. App’x 469, 480 (6th

Cir. 2006) (in FHA inaccessibility case, statute of limitations

runs from date plaintiff attempts to rent or buy the inaccessi-

ble unit, not the date it was built).

Accordingly, the majority errs by holding that ASWAN’s

claims accrued on the date the Conrad Center opened and by

dismissing the subsequent relocation of services to the Conrad

Center as mere effects of its opening. As this Court has previ-

ously explained:

If the discrimination alleged is a single act, the stat-

ute begins to run at the time of the act. If, on the

other hand, the statutory violation does not occur at

a single moment but in a series of separate acts and

if the same alleged violation was committed at the

time of each act, then the limitations period begins

anew with each violation and only those violations

preceding the filing of the complaint by the full limi-

tations period are foreclosed.

Nat’l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1167 (4th

Cir. 1991). The limit to this rule is that subsequent effects

from an earlier discriminatory act do not begin the limitations

period anew; rather, "[t]he challenged action must be repeated

within the statute of limitations period." Id.; see also Jersey

Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180,

189 (4th Cir. 1999) (where location of highway was alleged

discriminatory act, post-construction refusals to reconsider

location or to mitigate impact of highway on neighborhood

were mere effects of original alleged violation); Moseke v.

Miller & Smith, Inc., 202 F. Supp. 2d 492, 507-08 (E.D. Va.

2002) (where plaintiffs alleged that condominiums did not

comply with FHA, continued existence of noncompliant fea-

24 A SOCIETY WITHOUT A NAME v. VIRGINIA

tures were mere effects of original noncompliant construc-

tion).

To make out a continuing violation, ASWAN must there-

fore allege a discrete act of discrimination—related to the

larger asserted isolation effort—that occurred within the

applicable limitations period. Glendening, 174 F.3d at 189.

ASWAN has done so in this case by alleging that discrete acts

of the defendants between 2007 and 2009 caused in piecemeal

fashion the isolation of homeless persons from downtown

Richmond.

Instructive on this point is Lendo v. Garrett County Board

of Education, 820 F.2d 1365, 1367 (4th Cir. 1987), where this

Court found no cause and effect relationship between alleg-

edly discriminatory evaluations of a teacher’s performance

and his subsequent denial of tenure. The Court rejected the

characterization of the tenure denial as a mere effect of the

earlier discriminatory performance evaluations; the tenure

denial and performance evaluations were alleged as discrete

acts of discrimination. Id. Although the evaluations and the

denial of tenure were related, the teacher "could not have

known with any degree of certainty [at the time of the evalua-

tions] that he would eventually be denied tenure." Id. Thus,

the teacher was entitled "to develop his contentions" on the

discrete denial-of-tenure claim, which accrued within the lim-

itations period. Id. at 1368.

Similarly, in this case, the opening of the Conrad Center is

related to the relocation of services there only insofar as the

location of the Conrad Center has enabled the isolation of

homeless persons from downtown Richmond. As demon-

strated by Lendo, however, this relationship does not mean

that the relocation of a service to the Conrad Cen-

ter—allegedly motivated by isolationist animus—is not a dis-

crete act of discrimination. Indeed, the opening of the Conrad

Center in no sense caused homeless persons to be isolated

from downtown Richmond. Rather, defendants’ alleged acts

A SOCIETY WITHOUT A NAME v. VIRGINIA 25

that caused services to relocate from downtown to the Conrad

Center are responsible for the alleged isolation. See Lendo,

820 F.2d at 1368 (the denial of tenure did not "inevitably fol-

low the [discriminatory] evaluations so as to be an effect of

them"). Any such discrete acts during the limitations period

are not time-barred. Nat’l Adver. Co., 947 F.2d at 1167.

ASWAN plausibly alleges that the City of Richmond,

Homeward, and VCU in April 2007 "pressured and encour-

aged Commonwealth Catholic Charities to locate at the Con-

rad Center on Oliver Hill Way a service called ‘Central

Intake’ for homeless people to sign up for and be processed

to obtain overnight shelter provided at local churches by

CARITAS." Joint Appendix at 294, 307, 327. ASWAN

alleges that Central Intake was previously located at "517

West Grace Street in Richmond’s mainstream and in its

downtown." Joint Appendix at 330. This plausible allegation

of a discrete discriminatory act, related to the larger isolation

effort, occurred less than two years before this lawsuit was

filed on February 17, 2009. Therefore, I conclude that the

FHA claims against Homeward, VCU, and the City, as well

as the equal protection and § 1983 claims against the City, are

not time-barred.

Additionally, ASWAN alleges additional discrete acts in

2009. ASWAN alleges that, in 2009, "City officials advised

homeless people . . . that during the winter of 2009-2010,

homeless people would be required to go through Central

Intake at the Conrad Center in order to receive shelter at the

City’s overflow shelter on very cold nights." By relocating

access to the overflow shelter, ASWAN claims that the City

has "succeeded in materially segregating disabled homeless

people during daylight hours from Richmond’s mainstream

because of their ADA protected status." Joint Appendix at

328. This is a plausible allegation of a discrete discriminatory

act by the City less than one year before the complaint was

filed, rendering ASWAN’s ADA claim against the City

timely.

26 A SOCIETY WITHOUT A NAME v. VIRGINIA

Similarly, ASWAN makes the following allegation against

VCU:

As part of VCU’s actions against disabled homeless

people, after Catholic Charities located Central

Intake at the Conrad Center, VCU has sought to per-

suade faith-based providers of homeless meals now

at Monroe Park to relocate their homeless feeding

programs to the Conrad Center. Such actions by

VCU . . . have included actions in 2009 to persuade

faith-based organizations to move homeless meals

programs to the Conrad Center. VCU’s purpose in

seeking to persuade such faith-based organizations to

relocate such programs from Monroe Park to the

Conrad Center have been to reduce the visibility of

homeless people . . . near VCU’s main campus.

Joint Appendix at 294. This too is a plausible allegation of a

discrete discriminatory act by VCU less than one year before

the complaint was filed, rendering the ADA claim against

VCU timely.

In contrast, I find no allegation of a discrete discriminatory

act by Homeward less than one year before the complaint was

filed. Therefore, I agree that the ADA claim against Home-

ward is time-barred. I also agree with the dismissal of all

claims against the Doe(s) defendants because I find no plausi-

ble allegation of any discriminatory act by them after 1996.

The only act plausibly alleged against Doe(s) is an offer to

contribute $2 million toward the construction of a facility for

homeless persons on Oliver Hill Way in "late 1995 or early

1996." Joint Appendix at 282. Absent some discrete act during

the limitations period, no continuing violation has been

alleged against Doe(s). Glendening, 174 F.3d at 189.

In sum, I conclude that ASWAN has plausibly alleged con-

tinuing violations of the FHA against the City of Richmond,

VCU, and Homeward. In my view, ASWAN also makes out

A SOCIETY WITHOUT A NAME v. VIRGINIA 27

continuing ADA violations against the City of Richmond and

VCU. I would also permit the equal protection and § 1983

claims against the City of Richmond to proceed under the

continuing violation doctrine. To the extent that the majority

opinion holds differently, I respectfully dissent.