United States District Court, W.D. Virginia, Roanoke Division
Hon. Glen E. Conrad Chief United States District Judge
Brian Scott Dunn previously worked as a deputy sheriff in the office of Giles County Sheriff Morgan Millirons. This case arises from Sheriff Millirons' decision to terminate Duim's employment. Dunn claims that the termination constituted a retaliatory discharge in violation of the False Claims Act and the First Amendment. Dunn also asserts a claim for wrongful discharge under state law. The case is presently before the court on Sheriff Millirons' motion for summary judgment. For the following reasons, the motion will be granted in part and denied in, part.
The following facts from the summary judgment record are either undisputed or, where disputed, are presented in the light most favorable to the plaintiff See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (emphasizing that "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor, " when ruling on a motion for summary judgment).
Dunn was hired by Sheriff Millirons in 2008. At the time Dunn was hired, he held the rank of sergeant in Sheriff Millirons' chain of command. He eventually attained the rank of lieutenant.
During the course of his employment as a deputy, Dunn also served on the Board of Supervisors of Giles County. Prior to ruiming for his elected seat on the board, Duim received permission from Sheriff Millirons.
In early 2013, the Board of Supervisors received complaints regarding the county animal shelter from members of Giles Animal Rescue ("GAR"), a local volunteer organization. At that time, the animal shelter was managed by Sheriff Millirons, but funded by the county as directed by the Board of Supervisors. The GAR members complained about the physical conditions of the animal shelter and the level of care received by the animals. The concerns raised by the GAR members led to further questions regarding whether Chastity Perkins, the shelter's only employee, was actually working all of the hours for which she was being paid.
In July of 2013, members of the Board of Supervisors asked Dunn to speak to Sheriff Millirons about the issues raised by the GAR members. Of those issues, Dunn was most concerned with whether the county was paying for hours that Perkins did not actually work. See Dunn Dep. Tr. 91, PL's Br. Opp'n Summ. J. Ex. A ("[T]he Perkins thing was more important.... [Y]ou just can't be paying somebody for hours they are not working."). Although Dunn had no supervisory control over Perkins or the animal shelter in his position with the sheriffs office, the county was responsible for paying the staffing agency that employed Perkins to work at the shelter. Sheriff Millirons "signed off on the invoices from the staffing agency for hours allegedly worked by Perkins, and those invoices were then processed and paid by the Board of Supervisors. Millirons Dep. Tr. 37, PL's Br. Opp'n Summ. J. Ex. K. Dunn estimates that the county paid Perkins over $70, 000 for work that she did not perform.
Dunn subsequently met with Sheriff Millirons in the sheriffs office during work hours. During the meeting, Dunn advised Sheriff Millirons that "the Board [of Supervisors was] upset, " because "complaints [were] coming in about the animal shelter and how the animal shelter [was] being run." Dunn Dep. Tr. 65. Dunn emphasized that his "biggest concern was about Chastity [Perkins] being paid for hours that she wasn't working, " and that it was "not going to be good" if her time records were audited. Id Dunn suggested that Sheriff Millirons install a time clock or a camera at the animal shelter to keep track of the hours that Perkins actually worked. Id Sheriff Millirons became upset during the meeting, and threatened to kick out the GAR members who had been volunteering at the shelter. The sheriff also advised Dunn to "mind [his] own business, " and indicated "that it would be in [Dunn's] best interest just not to worry about [the shelter]." Id at 68.
Following the meeting, Sheriff Millirons "started acting differently" toward Dunn. Id at 87. Dunn testified that the sheriff interacted with him in an "unprofessional and rude" manner, and implied that Dunn had initiated the complaints regarding the shelter, which were ultimately publicized in the local newspapers. Id at 87-89.
In August of 2013, Douglas Sadler, the police chief in Pembroke, Virginia, contacted Dunn regarding the possibility of acquiring surplus vehicles from the sheriffs office for the town's police department. Dunn agreed to show Sadler the vehicles that he was interested in acquiring. Two or three days later. Sheriff Millirons accosted Dunn while he was on duty and "g[ot] in [Dunn's] face." Id at 96. The sheriff emphasized that he was "the goddamn motherf-ing sheriff around here, " and that he was responsible for making decisions about the vehicles. Id at 96.
On the morning of September 1, 2013, a convenience store burglary was reported to the sheriffs office. Dunn proceeded to the convenience store a few hours later, after he began his assigned shift. Upon his arrival, Dunn found evidence that had not been collected by the deputies responsible for processing the crime scene. When Duim requested that certain deputies return to the convenience store, the deputies refused to return because they were engaged in a fantasy football meeting.
Dunn subsequently included this information in an entry that he made in the Computer Aided Dispatch ("CAD") system utilized by the sheriffs office. Duim reported that he had attempted to contact other deputies regarding his findings at the convenience store, and that "there were no technicians or investigators [available] to assisf him. PL's Br. Opp'n Summ. J. Ex. C. Dunn noted that "Unit 15 advised that he had plans and could not respond, " and that "Unit 4 advised that Unit 15 was having his fantasy football meeting with Unit 9." Id.
That same month, Sheriff Millirons deleted the fantasy football comment from the CAD entry, and demoted Dunn to the rank of sergeant. During the course of advising Dunn of the demotion, Sheriff Millirons "angrily highlighted" the fact that Duim had referenced the fantasy football meeting in the CAD entry, and told him that "everybody" in the office "hates his f-ing guts." Dunn Decl. ¶ 3, PL's Br. Opp'n Summ. J. Ex. B; Dunn Dep. Tr. 138. Upon learning that his CAD entry had been modified, Dunn advised Sheriff Millirons that the modification could constitute a violation of Virginia law.
On September 29, 2013, Dunn visited the residence of Michael Falls, who held the rank of major under Sheriff Millirons. Dunn informed Falls that "the Board [was] going to have [Sheriff Millirons] investigated by the Attorney General." Falls Dep. Tr. 15, PL's Br. Opp'n Summ. J. Ex. D. Dunn used the term "embezzlement, " and "indicated that it was something to do with the animal shelter." Id.
On October 21, 2013, Sheriff Millirons terminated Durm's employment. During the course of discovery, the sheriff produced typewritten memoranda documenting alleged instances of insubordination and unbecoming conduct by Durm, and indicated that Dunn's termination was based on the conduct outlined in the memoranda. The first memorandum was dated August 27, 2013, and the final memorandum was dated October 8, 2013. Sheriff Millirons testified that the memoranda were prepared on the dates listed therein.
Dunn had never seen the memoranda produced by Sheriff Millirons. Dunn subsequently retained a digital discovery consultant to examine data obtained from the sheriffs computer. The consultant determined that the documents were created on the sheriffs computer on November 7, 2013, after Dunn was terminated. Sheriff Millirons has since acknowledged in an affidavit that he testified incorrectly regarding the dates on which the memoranda were prepared. The sheriff now maintains that the memoranda were based on handwritten notes taken on the dates listed on the memoranda.
Standard of Review
The case is presently before the court on Sheriff Millirons' motion for summary judgment. An award of summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that 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 to avoid summary judgment, a party's evidence must be "such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. In deciding whether to grant a summary judgment motion, the court must view the record in the light most favorable to the non-moving party, and draw all reasonable inferences in his favor. Id at 255; see also Libertarian Party of Va. v. Judd, 718 F.3d 308, 312 (4th Cir. Va. 2013)
Dunn asserts three claims against Sheriff Millirons. In Count I of his second amended complaint, Dunn claims that he was terminated in violation of the public policy of Virginia. In Count II, Duim claims that he was terminated in violation of the federal False Claims Act. In Count III, Dimn claims that he was terminated in retaliation for exercising ...