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Wootten v. Commonwealth

United States District Court, W.D. Virginia, Lynchburg Division

March 23, 2015



NORMAN K. MOON, District Judge.

Plaintiff Anastasia V. Wootten alleges the following: "[g]ender and national origin discrimination, and retaliation for the exercise of protected rights, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (the Title VII claims')"; the "[v]iolation of rights protected by the Constitution of the United States of America and its Amendments, pursuant to 42 U.S.C. § 1983"; a "[v]iolation of 42 U.S.C. § 1981"; and a "[v]iolation of the Driver's Privacy Protection Act (18 U.S.C. §§ 2721, et seq. )." For the reasons stated herein, the motion to dismiss for failure to state a claim will be granted, in part, and denied, in part.


When considering a motion to dismiss for failure to state a claim upon which relief can be granted, I apply the pleading standard refined by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See also Fed.R.Civ.P. 12(b)(6), Fed.R.Civ.P. 8. The non-moving party must have alleged facts that "state a claim to relief that is plausible on its face, " i.e., facts that "have nudged their claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570. A claim is plausible if the complaint contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, " but it must allege "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). A plausible claim is one that contains more than just "unadorned, the-defendant-unlawfully-harmed-me accusation[s]." Id. Although the long-held rule still stands that, "in evaluating a Rule 12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these facts in the light most favorable to the [non-moving party] in weighing the legal sufficiency of the complaint, " Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted), a complaint must allege "facts to state [the] elements of the claim, " Robertson v. Sea Pines Real Estate Cos., 679 F.3d 278, 291 (4th Cir. 2012); see also Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012).


Given the legal conclusions Plaintiff draws from her lengthy factual allegations, which are heavily weighted with inferences and speculation, I will quote the complaint extensively.[1]

Plaintiff states that she "is a female, Russian-born, citizen of the United States, and a long-time law enforcement officer, who became employed by [the Virginia Department of Motor Vehicles ("DMV")] as a Senior Special Agent [(SSA')] on or about May 10, 2011." She alleges that, in March 2011, when she was interviewed for a position as a SSA in the DMV's "Lynchburg Law Enforcement Services Division, " "[d]efendant Jennifer Dawson, a Caucasian/white female, who worked in the Law Enforcement Services Division Lynchburg office, became aware that Wootten and at least two other females were being interviewed for the open position in the Lynchburg office for a law enforcement position." According to Plaintiff, "Dawson told David Stultz, the Special Agent in Charge (SAC') of the Lynchburg DMV law enforcement office, not to hire a female and that a female in their office would not be a good fit." Nonetheless, despite Dawson's alleged foreboding, Plaintiff "was announced as the new law enforcement officer for the Lynchburg office." According to Plaintiff, Dawson consequently "expressed to SAC Stultz her displeasure with a female having been selected for the position" and, after Plaintiff "started work with DMV, Dawson complained to another DMV law enforcement employee that immigrants should not get jobs that are for Americans...."

The first subsection of the "FACTS" section of the complaint is subtitled "Setting the Stage, " wherein Plaintiff alleges that, soon after she began her employment with the DMV, she "became aware that Dawson had serious and significant issues in her employment, primarily regarding her ability to interact with officers in the Law Enforcement Services Division and other DMV employees, and her ability to effectively carry out the duties of her position." Plaintiff adds that, between May 2011 and March 2012, she "came to believe that Dawson had serious mental health issues based upon her observations of Dawson." She alleges that she witnessed Dawson "[y]ell[ing]" and "scream[ing] at persons on the telephone"; "[t]hrow[ing] items in the office"; "[c]ry[ing] uncontrollably"; "[r]un[ning] from her office in distress"; "[i]mply[ing] to citizens that she was a law enforcement agent"; "[r]efus[ing] to communicate with law enforcement officers, " "despite her job being to provide administrative support to the Lynchburg Law Enforcement Services Group"; "[m]aking false allegations against coworkers"; "[i]llegally possessing a weapon on DMV/state property"; and "[f]ailing to perform tasks that were a part of her job in a manner that suggested Dawson was intentionally orchestrating circumstances to make it appear that other persons were actually at fault for a task not being completed."

Plaintiff states that she

was also aware of other events involving Dawson, such as committing assaults and batteries on two other law enforcement officers in the Lynchburg office, being found hiding under her desk, demanding enhanced security equipment be installed at the office due to her paranoia, stating that she feared her step-son would try to kill her, demanding that individual officers' doors be left open for her to retreat to in case of an emergency, [and] turning all the lights off in the office and hiding after she requested, for security reasons, that lights be left on in the office.

Plaintiff adds that, "to protect themselves from accusations [Dawson] might allege, " "agents in the Lynchburg office would not go to the office alone when Dawson was there, " and "therefore, had to always go to the office in pairs when Dawson was present, thereby wasting state resources in the form of manpower."

In the subsection of her factual allegations subtitled "Reporting Concerns Regarding Dawson, " Plaintiff states that she "brought her concerns to Assistant Special Agent in Charge ("ASAC") Robert Supinger and SAC Stultz, " but "[d]espite what Wootten understood to be the proper and repeated efforts of Stultz to obtain permission from his superiors... to take action with regard to Dawson's behavior and actions in the workplace, no action was taken to address the situation with Dawson." Plaintiff alleges that she "understood from Supinger and Stultz that the reason no action was taken to address Dawson's workplace actions and behavior was that officials higher in the chain of command at DMV... prohibited Stultz from taking any action, " and Plaintiff states her conclusion that the following named defendants "refused to permit action to be taken against Dawson": Donald Boswell, identified as "the Law Enforcement Director of DMV"; Joseph Hill, "the Assistant Commissioner of DMV"; Jeannie Thorpe, "the Human Resources Director of DMV"; David Mitchell, "the Deputy Commissioner of DMV"; and Richard Holcomb, "the Commissioner of DMV." Plaintiff states that she personally "reported her concerns directly to" the following named defendants: Boswell, Hill, Mitchell, Holcomb, and John Gazzola, "the manager of DMV Human Resources." She adds that she also directly reported her concerns to "Tim Sadler with the Division of Internal Audit under the Commonwealth's Department of Accounts, which administers the Commonwealth's Fraud, Waste and Abuse Hotline (i.e., The Fraud and Whistleblower Protection Act, Va. Code § 2.2-3009, et seq.), " and that she "also is aware that one or more other DMV employees notified the Commonwealth's Secretary of Transportation, Sean Connaughton, of the circumstances surrounding Dawson at the Lynchburg office."

Plaintiff further states that, "along with other DMV law enforcement officers, " she "spoke directly to Commissioner Holcomb on March 15, 2012 in Albemarle County about their concerns with Dawson."

Proceeding to the subsection of her complaint subtitled "Setting the Stage for Retaliation under Title VII, " Plaintiff states that, the day after the meeting, "DMV announced that it was transferring ASAC Supinger from Lynchburg to Waynesboro." The "stated reason for the transfer was that it was in the spirit of compliance with DMV's nepotism policy because Supinger's wife, an Asian female, worked in the same building, " but Plaintiff adds that Supinger, "who attended the meeting with Commissioner Holcomb, " and Supinger's "wife... had worked for DMV on different floors of the same building for over 12 years." Plaintiff further states that she "was present when defendant Boswell told Supinger that he violated the nepotism policy and must be transferred to Waynesboro, " which required a longer commute for Supinger. Supinger "filed a grievance over the transfer, " the investigation of which "revealed that several married couples worked for DMV out of the same office, " but "Supinger and his wife were the only non-white/Caucasian, Asian couple among this similarly situated group and were the only couple in which one of the spouses was involuntarily transferred, purportedly due to DMV's nepotism policy." Nonetheless, "DMV did not reverse this decision, " and "Supinger filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC')."

"In the meantime, " Plaintiff continues in the subsection of the complaint subtitled "More Reports Regarding Dawson, " "no action was taken with regard to Dawson, " despite Plaintiff's "reports and complaints." Plaintiff adds that, "[u]nbeknownst to [her] at the time, Dawson was communicating directly with Hill" and defendant Gloria Winston, "a Human Resources Representative for DMV, " and was communicating "directly and indirectly with other defendants about what was occurring at the Lynchburg office, and conspiring with the defendants to negatively affect Wootten in her employment."

Dissatisfied with DMV's inaction, Plaintiff and several of her colleagues "attempted to meet with [Virginia] State Senator Steve Newman April 27, 2012. Plaintiff states that, "[i]nstead of meeting with all of the officers, Senator Newman requested that all but one officer leave his office once he learned the reason why they had come to speak to him, " and Plaintiff "and the other officers waited in another room while the lone officer spoke to Newman on behalf of all the officers." "Before Wootten left Newman's officer, however, she did express her concerns about the Lynchburg DMV officer to Newman, " and

[t]he officer who remained in the office to speak to Senator Newman told him about the officers' concerns for public safety and the wasting of state resources in how Dawson was being permitted to behave in the workplace and interrupt and disrupt the effective operation of the office and provision of services to the public. For example, the law-enforcement agents in the Lynchburg office would not go to the office alone when Dawson was there (to protect themselves from accusations she might allege) and, therefore, had to always go to the office in pairs when Dawson was present, thereby wasting state resources in the form of manpower.

Plaintiff complains that, "[u]nbeknownst to [her] at the time, Newman had already intervened on Dawson's behalf and spoken with the other defendants about the circumstances then existing in the Lynchburg office, " and that, "[a]fter the April 27 meeting, " Newman "notified the defendants of the meeting with the officers" and identified "who had come to his office and the reasons why Wootten and the other officers had come to speak to him." According to Plaintiff, "DMV officials then chastised [her] for going to speak to Senator Newman, and told her not to speak to persons outside of DMV, especially not elected officials, about what was going on with Dawson."

Proceeding to the subsection of her complaint subtitled "More Groundwork for Title VII Retaliation, " Plaintiff alleges that, "in June of 2012, DMV suddenly announced that it was reorganizing, effective October 1, 2012, despite a previously disseminated decision to the contrary." According to Plaintiff, "[t]his reorganization would return DMV to geographic boundaries in use approximately six years before, thereby eliminating the Lynchburg office and creating a larger Roanoke District, '" and these plans "included leaving both ASAC Supinger and a less senior female ASAC in the to-be-created and much larger Roanoke District.'" However, in August 2012 DMV "altered this... plan and notified ASAC Supinger that as part of the reorganization he would be transferred a second time, to a separate DMV work unit, Fuel Tax Enforcement (FTE), " and "DMV stated that the female ASAC would remain in place within the new Roanoke District despite the fact that... she had less overall seniority in law enforcement, fewer years of employment at DMV[, ] and had served less time as an ASAC than Supinger." "As with his first transfer, ... ASAC Supinger filed another grievance, " but again, "DMV did not reverse its decision...." And, according to Plaintiff, after DMV "failed" to grant Supinger the relief sought in his grievances, she "was present when defendant Mitchell told Supinger that different rules apply to field officers from headquarters ( i.e., regarding the nepotism policy), and that if management decided not to act on a violation then we should accept it and move on."

The next subsection of the complaint is subtitled "Dawson Assaults Wootten." Plaintiff alleges that, "on September 13, 2012, Dawson committed an assault and battery on SSA Wootten in a public ladies restroom at the Lynchburg office." Plaintiff "immediately reported the incident" to Stultz and Supinger, and "Stultz notified his superiors, including the defendants named" in the complaint, but "[o]ver the ensuing 24 hours... defendants refused to take any action to address Dawson's behaviors and actions." Plaintiff "then consulted with the Lynchburg Commonwealth Attorney's Office and thereafter obtained a warrant for assault and battery against Dawson for the incident." According to Plaintiff, "Boswell, Hill, Thorpe, and Holcomb threatened to suspend and terminate [her] because she obtained a warrant against Dawson, " and they also "had demanded that Stultz order Wootten not to obtain a warrant for Dawson."

The subsection subtitled "The Retaliation Begins" states that, "[o]n September 16, 2012, Boswell ordered Wootten to report to Richmond to be interviewed about what had occurred with Dawson, " and that, "[o]n September 17, 2012, " named defendant "Tom Penny, the Director of Fuels Tax for the Department of Motor Vehicles, who lacked training in internal investigations of law enforcement personnel, interrogated SSA Wootten, at the direction of the other defendants, concerning the events that led to the assault and battery charge against Dawson." Plaintiff complains that, "[d]uring the interrogation, Penny inferred that Wootten had committed some sort of misconduct for obtaining a warrant against Dawson, " even though "no defendant" had "notified Wootten that she was being investigated for misconduct as required by her procedural guarantees with the Law Enforcement Officers Procedural Guarantees Act (LEOPGA') (Virginia Code § 9.1-500, et seq.)."

According to Plaintiff, "[o]n October 3, 2012, the Assistant Attorney for the Commonwealth for the City of Lynchburg" notified Plaintiff that "Joe Hill and an unnamed female with DMV" had "request[ed] that the assault and battery charge against Dawson be dropped, " even though "[n]either Hill, nor the unnamed female [DMV employee had] notified Wootten of their intention to contact the Commonwealth Attorney to request that the charge... dropped." On October 11, 2012, in Richmond, "[d]efendants interrogated, or directed the interrogation of Wootten... about the situation involving Dawson and the assault and battery warrant taken out against Dawson." Plaintff complains that "the nature of the interrogation was... accusatory, " although she "was told that she was not under investigation, " and she "was not provided notice as required by the LEOPGA."

Plaintiff adds that "[d]efendants recorded their September 17[, 2012, ] and October 11[, 2012, ] interrogations of Wootten" and, although "[t]hese interrogations were internal affairs matters, " the "DMV released transcripts of these recordings to the attorney representing Dawson, " who then "cross-examined Wootten with the transcripts at trial of Dawson's Assault and Battery charge." Plaintiff further complains that "[d]efendants also interrogated, or directed the interrogation of other law enforcement officers from the Lynchburg office under the guise of investigating the assault and battery incident involving Dawson and Wootten, " but "Supinger, the DMV agent assigned to investigate the case involving Dawson, was not involved in these interrogations, and, in fact, ... was one of the DMV employees interrogated by defendants about the matter." According to Plaintiff, "Supinger became concerned that these interrogations were intimidating witnesses in the assault and battery case against Dawson, " and he therefore "requested assistance of the DMV Human Resources Office (HRO') that the interrogations stop, " but named defendant "William Anderson, a Senior Employee Relations Analyst for DMV HRO advised Supinger that HRO would take no action to stop the interrogations."

The next subsection, subtitled "Wootten Again Speaks Out to Petition for Help, " states that, "[o]n October 12, 2012, Wootten and other law enforcement officers met with State Senator Creigh Deeds to discuss the circumstances existing in the Lynchburg DMV office." Plaintiff states that "discussion was had about matters of public concern, " including Dawson's alleged disruptions of the office and the resulting risks to safety and waste of public resources, which, according to Plaintiff, DMV had ignored.

The next subsection is subtitled "Defendants Retaliate for Speaking Out, " and it states that, when "[d]efendants learned of Wootten's and the other law enforcement officers' meeting with Senator Deeds, " Plaintiff "and the other law enforcement officers were warned against discussing DMV matters outside of the DMV, in violation of Virginia Code § 2.2-2902.1." The complaint continues as follows (paragraph numbering omitted):

Defendant Boswell told SAC Stultz that talking to Senator Deeds about these matters was an embarrassment to Holcomb, and that Holcomb would not tolerate anyone talking about these matters ...

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