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Hoofnagle v. Smyth-Wythe Airport Commission

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

May 24, 2016


          James P. Jones United States District Judge Richard F. Hawkins, III, The Hawkins Law Firm, PC, Richmond, Virginia, for Plaintiff;

          Henry S. Keuling-Stout, Keuling-Stout, P.C., Big Stone Gap, Virginia, and Jim H. Guynn, Jr. and Michael W.S. Lockaby, Guynn & Waddell, P.C., Salem, Virginia, for Defendants.



         In this case, the plaintiff, a former public employee, claims that the defendants violated his rights under the First and Fourth Amendments to the Constitution, as well as the Stored Communications Act. The plaintiff contends that he was fired because of an email he sent to a member of Congress and that thereafter his employer accessed his email account without his permission. Based on the undisputed facts, I will grant in part and deny in part the defendants’ Motion for Summary Judgment.


         The essential facts, taken from the summary judgment record and recited in the light most favorable to the nonmovant, are as follows.

         From April 2011, until March 4, 2013, the plaintiff, Charles H. Hoofnagle, was employed as the Operations Manager of the Mountain Empire Airport (the “Airport”), located in Rural Retreat, Virginia. The Airport is owned by Smyth and Wythe counties and receives funding from these two counties, the towns of Marion and Wytheville, Virginia, and the Federal Aviation Administration (“FAA”).

         The Airport is operated by the Smyth-Wythe Airport Commission (the “Commission”), a public entity and a political subdivision of the counties and towns. The Commission is comprised of six members who are appointed by the counties and towns. The Commission has the power to hire and fire employees of the Airport.

         As Operations Manager, Hoofnagle reported to the Commission and was responsible for the day-to-day operations of the Airport. Among other things, Hoofnagle was responsible for fuel inventory, maintenance of the Airport, customer service, including answering phone calls and responding to emails from the public and customers, and month-end business, including billing. Hoofnagle generally worked six days a week and kept on-site office hours from approximately 8:00 a.m. to 5:00 p.m.

         Soon after Hoofnagle first began working for the Airport, he created a Yahoo! Mail (“Yahoo!”) email account with the address of The “mkj” letters in the email address reference the FAA identifier for the Airport. Hoofnagle used this account for both personal and business purposes. Although the account was not owned by the Airport, its address was held out to the public as an official contact for the Airport and provided to nearly all vendors and customers. It was the email address on file with the FAA and the Virginia Department of Aviation.

         Throughout Hoofnagle’s employment, the Airport did not maintain any other email address for its business and the Commission never adopted any email or computer use policies for its employees. Hoofnagle understood9* that when he communicated with the public on, he was speaking on behalf of the Airport. (Hoofnagle Dep. 61, 62-63, ECF No. 43-1.)

         Hoofnagle is an advocate of Second Amendment rights. He has lawfully owned and used numerous types of guns and teaches courses on gun safety for the National Rifle Association.

         After the Newtown mass school shooting, United States Senator Tim Kaine sent a letter to Hoofnagle addressing the issue of gun violence, apparently in response to a communication on that issue from Hoofnagle. In an email dated February 16, 2013, Hoofnagle replied to Senator Kaine as follows:

From: Charlie Hoofnagle <> To: U.S. Senator Kaine <> Sent: Saturday, February 16, 2013 9:14AM Subject: Re: Reply from Senator Kaine
Dear, Mr. Kain [sic]. I own over 9 AR platform rifles and 30 some various other rifles and shotguns, a dozen handguns, I suggest you stick up for rights of all gun owners in Va. In my opinion you and your kind (Liberals) ARE a CANCER to this state and COUNTRY, therefore I have gone to the voting polls every Nov. to try and eradicate you and your kind from public office, and will continue to do so. We do not have a gun problem, We have an IDIOT PROBLEM, go deal with that, and not the competent gun owner. Here is the Va. NRA tollfree # 1-800-672-3888. Now you can join the NRA. So you can be apart [sic] of something with some substance and character…Charles H. Hoofnagle. Airport Operations Manager Mt. Empire Airport in south west Va. 276-685-1122

(First Am. Compl. Ex. B, ECF No. 30-2.)

         The prior letter from Senator Kaine to Hoofnagle about gun violence did not mention the Airport or its business and was not addressed to the Airport but to Hoofnagle personally at his home address. Nevertheless, Hoofnagle signed his reply email using his official Operations Manager title and specifically referenced the Airport. In addition, he included the cell phone number for the Airport rather than his personal telephone number.

         On March 4, 2013, during a closed session meeting, the Commission unanimously voted to terminate Hoofnagle. This decision was based predominantly on Hoofnagle’s choice to sign the email to Senator Kaine using his official title of Operations Manager of the Airport.[1] The defendants concede that if Hoofnagle had not sent the email, he would not have been terminated.[2] The defendants also concede that Hoofnagle’s email had no direct affect on Airport operations.

         After Hoofnagle’s employment had been terminated, Wilson Leonard, who was chairman of the Commission, accessed Hoofnagle’s email account using a password provided by Christina Dunavant, the Airport secretary. The defendants assert that Leonard accessed the account in order to retrieve business records of the Airport. Hoofnagle did not authorize the Commission or its members to access the account at that time. Furthermore, although the defendants disagree, Hoofnagle contends that he never shared his password for the email account with anyone at the Airport.[3]

         Hoofnagle has sued the Commission and its members for his termination as well as for accessing his email account, seeking compensatory, punitive and statutory damages.[4] Following discovery, the defendants have moved for summary judgment in their favor. The defendants challenge all of the causes of action levied against them and assert numerous arguments in favor of their motion for summary judgment. The defendants’ motion is ripe for decision, having been fully briefed by the parties.[5]


         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 (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).

         Rule 56 mandates the entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is not “a disfavored procedural shortcut, ” but rather a valuable mechanism for excluding “claims and defenses [that] have no factual basis.” Id. at 327. It is the “affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.” Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (internal quotation marks and citation omitted).

         In addition to a claim under the Stored Communications Act (Count III of the First Amended Complaint), Hoofnagle has asserted First and Fourth Amendment claims against the defendants under 42 U.S.C. § 1983 (Counts I and II). A § 1983 claim requires proof of the following three elements: “(1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law.” Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997).

         A. First Amendment Claim.

         The defendants first argue that summary judgment is appropriate because Hoofnagle’s speech was not protected by the First Amendment.

         “The First Amendment protects public employees from termination of their employment in retaliation for their exercise of speech on matters of public concern.” McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998). “While government employees do not lose their constitutional rights at work, the Supreme Court has repeatedly held that the government may impose certain restraints on its employees’ speech and take action against them that would be unconstitutional if applied to the general public.” Adams v. Trs. of Univ. of N.C. -Wilmington, 640 F.3d 550, 560 (4th Cir. 2011). Whether the First Amendment protects certain speech is a question of law. Connick v. Myers, 461 U.S. 138, 148 n.7 (1983).

         In evaluating whether a public employee has stated a claim under the First Amendment for retaliatory discharge, I must consider: “(1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest; (2) whether the employee’s interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public; and (3) whether the employee’s speech was a substantial factor in the employee’s termination decision.” McVey, 157 F.3d at 277-78. To avoid summary judgment, the plaintiff is “required to adduce evidence sufficient to show material facts in dispute as to each of the three prongs of the McVey test.” Adams, 640 F.3d at 561. In the present case, the defendants argue that Hoofnagle has failed to meet all three prongs of the test.

         1. The First Prong of the McVey Test.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&ldquo;Whether an employee&rsquo;s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.&rdquo; Connick, 461 U.S. at 147-48. &ldquo;Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community.&rdquo; Durham v. Jones, 737 F.3d 291, 299-300 (4th Cir. 2013) (quoting Kirby v. City of Elizabeth City, 388 F.3d 440, 446 (4th Cir. 2004)). The public concern inquiry depends on “whether the ‘public’ or the ‘community’ is likely to be truly concerned with or interested in the particular ...

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