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Altizer v. Town of Cedar Bluff

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

April 17, 2015


For Plaintiff: Michael A. Bragg, Bragg Law, Abingdon, Virginia, and Terrance Shea Cook, T. Shea Cook, P.C., Richlands, Virginia.

For Defendants: W. Bradford Stallard, Penn, Stuart & Eskridge, Abingdon, Virginia.


James P. Jones, United States District Judge.

In this action under 42 U.S.C. § 1983, the remaining plaintiff, a former municipal employee, claims that she was fired in violation of the First Amendment, on account of public comments made on her behalf about the alleged failure to promptly pay funds into the municipal employees' deferred compensation plan. She further contends that her plan funds were taken from her without just compensation, in violation of the Fifth Amendment's Takings Clause. The plaintiff also asserts a pendant state law cause of action for wrongful termination.

Following discovery, the defendants have moved for summary judgment. The defendants' motion is ripe for decision, having been fully briefed by the parties and orally argued. For the reasons that follow, I will grant the defendants' motion and enter judgment in their favor.


The following facts are taken from the summary judgment record.

The plaintiff Marilyn Altizer (" Mrs. Altizer" ) was formerly employed as an assistant clerk for a small Virginia municipality, the Town of Cedar Bluff (the " Town" ). During her employment with the Town, Mrs. Altizer participated in a deferred compensation plan. Pursuant to the plan, established under a provision of the Internal Revenue Code,[1] the Town withheld between $106.88 and $119.77 from each of Mrs. Altizer's biweekly paychecks. The amount withheld depended upon Mrs. Altizer's earnings during a particular pay period. The withholdings were eventually deposited in an investment account managed by VALIC, the third-party administrator of the Town's deferred compensation plan.[2]

Mrs. Altizer, a longtime Town employee, received criticism from her supervisor about her job performance, including a written warning that she would be terminated if she did not improve. Shortly after the warning, she received her 2013 first quarter benefits statement from VALIC. She saw that no contributions had been made to her plan during that quarter, despite regular deductions from her paychecks. The parties do not dispute that payments had been approved by the Town Council, with checks drawn for payment to VALIC. The parties also agree that checks to VALIC were often held from being mailed by James McGlothlin, the Town Manager, over the course of the preceding several years. McGlothlin acknowledges that the checks were being held until additional Town funds existed to cover them. McGlothlin also held checks payable to other Town creditors for the same reason.[3]

Mrs. Altizer approached the Town's Mayor, Jerry Herron, about the absence of payments to VALIC. Herron told her that he would discuss the issue with McGlothlin. Herron later told Mrs. Altizer that the payments would be forwarded to VALIC. Mrs. Altizer also approached other Town Council members and told them that she believed that the matter needed to be investigated further and asked that an explanation be provided as to why the payments had been delayed. Likewise, Tim Altizer (" Mr. Altizer" ), the plaintiff's spouse, discussed the situation with McGlothlin in an attempt to obtain an explanation and a commitment to correct the matter.

On May 14, 2013, the Altizers appeared before the Town Council at its regular public meeting. Mr. Altizer asked to be placed on the agenda. Mr. Altizer addressed the Town Council regarding various issues, including the delay in submitting plan contributions to VALIC. Mr. Altizer has fully described the content and scope of his comments before the Town Council in an affidavit and deposition testimony filed with the court for the purpose of the present motion.

Later in the same Town Council meeting, Mrs. Altizer spoke during the open citizen comments portion of the meeting. On March 25, 2013, prior to her public comments and a few weeks before Mrs. Altizer had seen her quarterly benefits statement, she had received a written reprimand from Town Manager McGlothlin concerning her alleged failure to process delinquent utility customer disconnections. In the reprimand, she had been told that if she did not improve, she would be fired. (McGlothlin Aff. Ex. C, at 31, ECF No. 42-10.)[4]

In her comments to the Town Council, Mrs. Altizer attempted to justify her job performance and did not discuss the issue of the timeliness of payments to VALIC. Though the parties dispute exactly what was said at this time -- with no transcript or recording of the meeting available -- it is clear that Mrs. Altizer and McGlothlin engaged in a series of exchanges that reflected their personal animosity towards one another. On May 17, 2013, three days after the Town Council meeting, McGlothin terminated Mrs. Altizer's employment.

The parties espouse different reasons why Mrs. Altizer was terminated. She contends that she was terminated as a result of the comments Mr. Altizer made on her behalf before the Town Council about the delay in transmitting plan contributions. In turn, the defendants contend that Mrs. Altizer was a poor employee who deserved to be fired. Among other things, the defendants assert that Mrs. Altizer repeatedly failed to process utility bill delinquencies in a timely manner and was frequently insubordinate to McGlothlin, including at the Town Council meeting.

On February 18, 2014, the Altizers filed the present suit seeking compensatory and punitive damages against the Town and McGlothlin in his individual capacity. Count One of the Complaint charges a violation of the First Amendment in relation to Mrs. Altizer's termination. Count Two alleges a violation of the Fifth Amendment Takings Clause arising from the Town's alleged use of the deferred compensation plan withholdings. The remaining claims assert violations of state law, including wrongful termination, conversion, and breach of fiduciary duty.

Early on in the case, I granted in part and denied in part a Motion to Dismiss filed by the defendants. Altizer v. Town of Cedar Bluff, Va., No. 1:14CV00007, 2014 WL 2535057 (W.D. Va. June 5, 2014), reconsideration denied, 2014 WL 2712068 (W.D. Va. June 16, 2014). Pursuant to my order, Mr. Altizer was terminated as a party plaintiff to this litigation because of a lack of standing. Additionally, Mrs. Altizer's state law claims for conversion and breach of fiduciary duty were dismissed. Mrs. Altizer's Fifth Amendment claim against McGlothlin was also dismissed. Mrs. Altizer's remaining claims survived the Motion to Dismiss, and are now subject to the Motion for Summary Judgment.


Summary judgment is appropriate when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). To raise a genuine issue of material fact sufficient to avoid summary judgment, the evidence must be " such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, " the court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party." Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).

The defendants have asserted numerous arguments in favor of their Motion for Summary Judgment regarding each of the plaintiff's remaining causes of action. In considering the parties' arguments, I will ...

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