UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD L. ARMSTRONG,
Plaintiff-Appellant,

v.
                                                                     No. 97-1222
ROLM A. SIEMANS COMPANY; SHARON
LEWIS,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-96-1427-A)

Submitted: October 10, 1997

Decided: November 13, 1997

Before NIEMEYER and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Donald L. Armstrong, Appellant Pro Se. K. Stewart Evans, Jr., PEP-
PER, HAMILTON & SCHEETZ, Washington, D.C.; David Michael
Young, WASHINGTON LEGAL FOUNDATION, Washington,
D.C., for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Donald L. Armstrong appeals from the district court's order dis-
missing his pro se civil action and granting Defendants' joint motion
to dismiss for lack of subject matter jurisdiction and for failure to
state a claim pursuant to Fed. R. Civ. P. Rules 12(b)(1), (6), respec-
tively. We have reviewed the record and the district court's opinion
and find no reversible error. For the reasons set forth below, we
affirm the dismissal of Armstrong's action.

We review the district court's dismissal for lack of subject matter
jurisdiction de novo. Hager v. Gibson , 108 F.3d 35, 38 (4th Cir.
1977). We likewise review de novo a dismissal for failure to state a
claim. Meaige v. Hartley Marine Corp., 925 F.2d 700, 702 (4th Cir.
1991). A dismissal for failure to state a claim should be upheld only
if it appears that the plaintiff can prove no set of facts that would enti-
tle him to relief. Id.; Conley v. Gibson , 355 U.S. 41, 45-46 (1957).
When reviewing a motion to dismiss, we assume the facts alleged in
the complaint are true, McNair v. Lend Lease Trucks, Inc., 95 F.3d
325, 327 (4th Cir. 1996), and we construe the allegations in the light
most favorable to the pleader. Scheuer v. Rhodes , 416 U.S. 232, 236
(1974). When reviewing a pro se complaint, federal courts should
examine carefully the plaintiff's factual allegations, no matter how
inartfully pleaded, to determine whether they could provide a basis
for relief. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1977);
Boag v. MacDougall, 454 U.S. 364, 365 (1982); Haines v. Kerner,
404 U.S. 519, 520-21 (1972). In addition, in order to determine
whether the claim of a pro se plaintiff can withstand a motion to dis-
miss, it is appropriate to look beyond the face of the complaint to alle-
gations made in any additional materials filed by the plaintiff.
Gordon, 574 F.2d at 1149-51.

On October 4, 1996, Armstrong filed an eight count complaint,
which, liberally construed, alleged: (I) discrimination in violation of

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the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101
(1994) (ADA); (II) wrongful termination; (III) constructive discharge;
(IV) intentional infliction of emotional distress; (V) discrimination in
violation of the Vietnam Era Veterans' Readjustment Act of 1974, 38
U.S.C.A. § 4212 (West 1985 & Supp. 1997); (VI) discrimination in
violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 (West
1985 & Supp. 1997); (VII) discrimination in violation of the Age Dis-
crimination in Employment Act, 29 U.S.C. § 621 (1994) (ADEA);
and (VIII) restriction of free speech guaranteed by the First Amend-
ment. Following oral argument on Defendants' motion to dismiss, the
district court dismissed Counts I and III through VIII. The district
court, after reviewing supplemental briefs of the parties, then dis-
missed the remaining Count II. This timely appeal followed.

Armstrong worked for Defendant, Rolm Communications Corpora-
tion, a Siemens Company (Rolm), a federal contractor, from Novem-
ber 13, 1978, until August 9, 1995, the date on which he was notified
by Rolm of his termination effective immediately for"job abandon-
ment." Defendant Sharon Lewis was Armstrong's supervisor at Rolm
during the relevant time period. At the time of termination, Armstrong
was a senior field service representative. He consistently received
strong performance evaluations throughout his tenure with Rolm.

In 1992, Armstrong, a Vietnam veteran, was diagnosed by the
United States Veterans Administration with Post Traumatic Stress
Disorder. In October 1994, Armstrong began to suffer from an
unidentified illness, which subsequently was diagnosed by a private
physician as fibromyalgia, a stress-related disorder, and which
resulted in sleep deprivation, as well as a myriad of secondary condi-
tions, including peripheral neuropathy, irritable bowel syndrome,
brain fog, burning muscle pain, and muscle cramps.

Armstrong claimed that in 1993 and 1994 Lewis harassed him
repeatedly and discriminated against him on the basis of age, disabil-
ity, and veterans status. For example, he claimed that on one occasion
Lewis would not allow him to display photographs taken during the
Vietnam War, and told him to refrain from publicizing his status as
a veteran. Armstrong claimed that Lewis's behavior exacerbated his
medical condition and made his workplace intolerable, causing him
to have to leave work on October 12, 1994.

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Rolm first placed Armstrong on short-term disability leave. His
physicians advised Rolm that the workplace aggravated Armstrong's
symptoms, and that he should be permitted to telecommute via his
home telephone and computer. Rolm failed to accommodate Arm-
strong. Armstrong claimed that he was discriminated against on the
basis of disability because other non-disabled employees were regu-
larly permitted to telecommute.

Rolm notified Armstrong by letter dated March 2, 1995, that it
planned to terminate his short-term disability payments and that he
should apply for long-term disability. Armstrong applied, but was
rejected, for long-term disability with Rolm's insurance carrier. Arm-
strong still refused to return to work, and on August 9, 1996, Rolm
terminated Armstrong, citing his failure to return to work as the rea-
son for termination.

In Counts I and III of his complaint, Armstrong claimed disability
discrimination relating to Rolm's failure to allow him to telecommute
in December 1994, and the harassment to which he was subjected that
forced him to leave work on October 12, 1994 (constructive dis-
charge). Because these alleged acts of discrimination occurred prior
to August 11, 1995,1 we find that the district court properly dismissed
them as being time-barred.
_________________________________________________________________
1 While Armstrong sought to file a complaint with the Equal Employ-
ment Opportunity Commission (EEOC) on April 21, 1996, the date on
which he spoke with an EEOC intake officer, Armstrong did not file a
signed, notarized complaint with the EEOC until June 5, 1996. This latter
date is the appropriate date against which the timeliness of the claims
Armstrong set forth in Counts I, III, and VII is properly measured. See
Balazs v. Liebenthal, 32 F.3d 151, 156 (4th Cir. 1994) ("[T]he filing of
a sworn charge of discrimination with the EEOC is a mandatory prereq-
uisite to the validity of the charge . . . ."). Because Virginia is a deferral
state, the usual 180-day limitation for filing Title VII and ADA claims
of discrimination with the EEOC (42 U.S.C. § 2000e-5(e)(1) (1994)) is
extended to 300 days. 29 C.F.R. §§ 1601.13(a)(4)(ii)(A), 1601.74(a).
Accordingly, Armstrong is time-barred from alleging any act of discrimi-
nation occurring more than 300 days from June 5, 1996, the date he filed
his charge with the EEOC, and any act of discrimination occurring prior
to August 11, 1995, is time-barred.

                    4
In Count II, Armstrong claimed wrongful termination on the basis
of his disabilities. We affirm the district court's dismissal of this
Count on the reasoning of the district court. Armstrong v. Rolm A.
Siemans Co., No. CA-96-1427-A (E.D. Va. Dec. 26, 1997). We spe-
cifically reject Armstrong's assertion on appeal that the Virginians
with Disabilities Act, Va. Code Ann. § 51.5-41 (Michie 1994 repl.
vol.) (VDA), is not applicable to an employer covered by the Rehabil-
itation Act, such that he is not subject to the exclusivity provisions or
the administrative requirements of the VDA. See Bradick v. Grum-
man Data Sys. Corp., 486 S.E.2d 545, 547 (Va. 1997).

In Count IV, Armstrong alleged intentional infliction of emotional
distress. The facts supporting his claim relate to Defendant Lewis's
failure to allow Armstrong to display photographs taken during the
Vietnam War, while other employees were allowed to personalize
their work area, and her refusal to allow Armstrong to make refer-
ences to the war. Armstrong further alleged that Lewis's prejudicial
attitude encouraged other employees to harass him. Finally, he
claimed that Rolm's failure to intervene when notified of the problem
constituted intentional infliction of emotional distress. We agree with
the district court that while such attitudes and actions were unfortu-
nate and unpleasant, Armstrong did not allege conduct that was so
outrageous and intolerable such that it offended generally accepted
standards of decency and morality.2 Therefore, we affirm the district
court's dismissal of Count IV on that ground.

In Count V, Armstrong claimed that Defendants purposefully
engaged in discrimination of a disabled Vietnam veteran by harassing
and discriminating against him by denying him reasonable accommo-
dation and by terminating him. We find that the district court properly
dismissed this claim pursuant to Rule 12(b)(6) because there is no pri-
vate cause of action against federal contractors under § 402 of the
Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38
U.S.C. § 4212 (West 1991 & Supp. 1997). See Harris v. Adams, 873
F.2d 929, 931 (6th Cir. 1989); Barron v. Nightingale Roofing, Inc.,
842 F.2d 20, 21 (1st Cir. 1988); see generally Cort v. Ash, 422 U.S.
_________________________________________________________________
2 See Beardsley v. Ison, 828 F. Supp. 397, 400-01 (E.D. Va. 1993),
aff'd, 30 F.3d 524 (4th Cir. 1994); Womack v. Eldridge, 210 S.E.2d 145,
148 (Va. 1974).

                     5
66, 78 (1975) (setting forth factors to determine whether given statute
gives rise to private right of action).

Count VI is a claim based on the Defendants' alleged purposeful
discrimination of an employment-qualified handicapped person. Con-
strued generously pursuant to Section 503 of the Rehabilitation Act
of 1973, 29 U.S.C. § 793 (West 1985 & Supp. 1992), this claim, too,
fails for lack of a private cause of action. See Painter v. Horne Bros.
Inc., 710 F.2d 143, 143 (4th Cir. 1983).

As to Count VII, to the extent that Armstrong claimed age discrim-
ination based upon Rolm's failure to accommodate him by permitting
him to telecommute, we find that the district court properly dismissed
this claim on the ground that it, too, is time-barred as alleging dis-
criminatory acts that occurred in excess of 300 days prior to the filing
of Armstrong's charge with the EEOC. To the extent Armstrong
raised a claim of age discrimination through discharge, which claim
would not be time-barred, we find that such claim is without merit
because it is based solely on Armstrong's conclusory statement made
without supporting facts.

In Count VIII, Armstrong alleged a violation of his First Amend-
ment rights based on the alleged uneven and prejudicial application
of Rolm's policy concerning personalizing an employee's work
space. We agree with the district court that this claim must fail
because Armstrong does not allege any state action, and merely
because Rolm is a federal contractor does not convert its acts into
state conduct. See Hudgens v. NLRB, 424 U.S. 507, 513 (1976).

Finally, we agree with the district court that Armstrong's discrimi-
nation claims against Defendant Lewis are without merit. Lewis is not
an employer subject to Title VII, ADA, or ADEA liability under the
facts alleged by Armstrong. See Birkbeck v. Marvel Lighting Corp.,
30 F.3d 507, 510 (4th Cir. 1994).

Accordingly, we affirm the district court's dismissal of Arm-
strong's action. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
Court and argument would not aid the decisional process.

AFFIRMED

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