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Vanterpool v. Cuccinelli

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

February 7, 2014


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For Samantha Vanterpool, Plaintiff: Richard E. Patrick, LEAD ATTORNEY, Jordan Patrick & Cooley LLP, Fairfax, VA.

For Kenneth T. Cuccinelli, II, Attorney General for the Commonwealth of Virginia in his Individual Capacity, Charles E. James, Jr., in his Individual Capacity, Defendants: George William Norris, Jr., LEAD ATTORNEY, Office of the Attorney General, Richmond, VA.


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James R. Spencer, United States District Judge.

THIS MATTER is before the Court on a Motion to Dismiss (" Motion" ) (ECF No. 12) filed by Defendants Kenneth T. Cuccinelli, II (" Cuccinelli" ) and Charles E. James (" James" ). Defendants seek dismissal of a Complaint filed by Plaintiff Samantha Vanterpool (" Vanterpool" ) for her allegedly wrongful termination from employment with the Virginia Office of the Attorney General (" OAG" ).


Vanterpool is an attorney who was hired as an Assistant Attorney General by the OAG in 2006 and worked primarily on legal education matters. At all times relevant to this action, she was also an active member of the Republican Party. Cuccinelli was the Attorney General of Virginia from 2010 until 2014 and was the Republican Party's nominee in the 2013 Virginia gubernatorial race. James was the Chief Deputy Attorney General at all times relevant to this action. Cuccinelli vested James with the authority to manage the OAG, as well as attorneys and staff working for the OAG.

On Friday, May 4, 2012, the Washington Post published an article on its website entitled " Bill Bolling to Ken Cuccinelli: Have a nice, long trip." The article discussed Bill Bolling's battle with Cuccinelli for the Republican Party gubernatorial nomination. On Saturday, May 5, 2012, a comment (" Comment" ) was posted to this article reading,

Love it! Let the egomaniac [Cuccinelli] take the BS out of state. While Bolling is helping the GOP, Cuccinelli is promoting Cuccinelli. For example, he is NEVER in the AG's office and solely uses the position for self promotion. He has issue (sic) a policy that NO AG employee can talk to the media about anything at anytime. To date, he hasn't endorsed Romney. Good job Ibbie!

(Am. Compl. Ex. 2.) The Comment was posted by a person using the handle " bzbzsammy."

On May 15, 2013, James held a meeting with Vanterpool in which he asked her whether she was responsible for the Comment. An employee of the OAG responsible for finding and compiling published information about the Attorney General had previously discovered the Comment and informed James that she believed it was attributable to Vanterpool. When asked, Vanterpool denied personally posting the comment. James relieved Vanterpool of her OAG badge, access card, and other work-related items.

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In a letter dated May 17, 2012, James indicated that he had " decided to terminate [Vanterpool's] employment" because he had found Vanterpool's comments during the May 15 meeting to be " evasive and not truthful." (Am. Compl. Ex. 3.) The letter indicates that Vanterpool's actions were in violation of Sections III (1) and (17) of the OAG Standards of Conduct as well as the OAG Media Policy. The letter gave Vanterpool the opportunity to resign, but indicated that she could only resign in lieu of termination if the election was made prior to May 21, 2012.

Also on May 17, 2012, James met with Vanterpool. In that meeting, James asked Vanterpool who had authored the Comment. She declined to reveal who had posted the Comment because it was " anonymous, posted on the weekend, and not relevant to [Vanterpool's] official duties." (Am. Compl. ¶ 19.) James replied that Vanterpool " had already 'dug' a hole for herself and that the 'dye' was cast." (Am. Compl. ¶ 19.)

On or about May 25, 2012, Vanterpool submitted a resignation letter to James. In the letter, Vanterpool asserted her belief that she was being wrongfully terminated and sought to preserve her rights to pursue an equal employment action, a Title VII action, and an action based on violation of the First Amendment. (Am. Compl. Ex. 6.) James rejected Vanterpool's attempted resignation in a letter dated May 30, 2012, because she could not " both resign and allege to have been wrongfully terminated." (Am. Compl. Ex. 7.) James indicated that Vanterpool would be terminated unless by June 1, 2012, she resigned " without conditions." (Am. Compl. Ex. 7.) Through counsel, Vanterpool confirmed her resignation the following day " [c]onsistent with her letter of May 25, 2012." (Am. Compl. Ex. 8.) Vanterpool alleges that her forced resignation took place with the knowledge, consent, and acquiescence of Cuccinelli.

On August 2, 2013, Vanterpool filed her Complaint in this Court. In the Complaint, she alleged one count of retaliation in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983, but she did not indicate what her connection to the Comment was, alleging only that an OAG employee " erroneously concluded that the handle 'bzbz_sammy' was connected to [her]." (Compl. ¶ 12.) On August 30, 2013, Defendants moved to dismiss the Complaint on the grounds that Vanterpool was not entitled to First Amendment protection if she did not make the Comment.[2] Subsequently, Vanterpool filed an Amended Complaint. In the Amended Complaint, Vanterpool indicates that she " helped in deciding and putting together the contents of the comments. She agreed with the contents of the comments; she supported the comments, and she authorized the posting of the comments." (Am. Compl. ¶ 13.) However, Vanterpool also indicates that she " correctly denied that she posted the comments." (Am. Compl. ¶ 13.) Defendants filed the instant Motion to Dismiss asserting that Vanterpool's Complaint fails to state a claim upon which relief can be granted.


Rule 12 of the Federal Rules of Civil Procedure allows a defendant to raise a number of defenses to a complaint at the pleading stage, including failure to state a claim. A motion to dismiss for failure to state a claim upon which relief can be granted challenges the legal sufficiency of a claim, rather than the facts supporting it. Fed.R.Civ.P. 12(b)(6); Goodman v. Praxair, Inc.,494 F.3d 458, 464 ...

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