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Supinger v. Commonwealth

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

July 20, 2016

Robert E. Lee Supinger, Jr., Plaintiff,
v.
Commonwealth of Virginia, et al., Defendants.

          MEMORANDUM OPINION

          NORMAN K. MOON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff’s motion for partial summary judgment (docket no. 94).

         Plaintiff seeks summary judgment on his due process claim under 42 U.S.C. § 1983 against Defendants Richard Holcomb, Joseph Hill, Jeannie Thorpe, and Tom Penny.[1] As explained below, Plaintiff’s motion will be granted in part and denied in part.

         I. Procedural History

         Supinger instituted this action in the Lynchburg City Circuit Court, and the Defendants removed to this Court. In his original complaint, Supinger alleged various claims against multiple defendants. On March 2, 2016, I dismissed several of Supinger’s claims, but allowed his claim of deprivation of procedural due process, among others, to go forward. See Docket No. 82.

         On April 4, 2016, Supinger filed a motion for leave to file a second amended complaint. See Docket No. 91. Magistrate Judge Robert Ballou entered a report and recommendation recommending that I grant the motion in part and deny the motion in part. I adopted Judge Ballou’s report and recommendation in full on June 21, 2016, and on June 22, 2016, Supinger filed an amended complaint.

         Supinger has now filed a motion for partial summary judgment on his procedural due process claim.

         II. Standard of Review

         Federal Rule of Civil Procedure 56(a) provides that a court should grant summary judgment “if 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.” “As to materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In order to preclude summary judgment, the dispute about a material fact must be “‘genuine, ’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). If, however, the evidence of a genuine issue of material fact “is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 250. In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).

         III. Facts

         Supinger was an Assistant Special Agent in Charge in DMV’s Lynchburg, Virginia, office. As a result of a conflict between Supinger and DMV, which is described more fully in Supinger v. Virginia, F.Supp.3d, 2016 WL 865332 (W.D. Va. March 2, 2016), Supinger was suspended on February 28, 2012. Pl.’s Ex. 2, at 2.

         As a non-probationary law enforcement officer, Supinger had two means of grieving his suspension. Supinger could proceed under the Commonwealth of Virginia’s Grievance Procedure, Va. Code § 2.2-3000, et seq. (hereinafter, “VGP”), a process managed by the Office of Employment Dispute Resolution (“EDR”). Alternatively, Supinger could proceed under Va. Code § 9.1-500, et seq., known as the Law-Enforcement Officers Procedural Guarantee Act (“LEOPGA”).[2]

         On March 29, 2013, Supinger elected to grieve his suspension under the VGP. In order to grieve his suspension under the VGP, Supinger was required to “initiate [his] grievance on a fully completed ‘Grievance Form A.’” Office of Emp’t Dispute Resolution Grievance Procedure Manual, at § 2.4 (hereinafter, “GP Manual”).[3] Supinger duly submitted a Grievance From A regarding his suspension from employment. Pl.’s Ex. 3.

         Thereafter, on April 9, 2013, Hill issued to Supinger five Written Notices of Discipline and terminated his employment with DMV. Pl.’s Exs. 5. Two of Supinger’s fellow employees, David Stultz and Anastasia Wootten, were also terminated. The Virginia Attorney General appointed Karen Michael as special counsel to represent DMV in Supinger, Wootten, and Stultz’s administrative proceedings.

         On April 17, 2013, Supinger, Wootten, and Stultz petitioned the Richmond City Circuit Court to enjoin Michael’s appointment as special counsel. The Commonwealth demurred and moved to dismiss the petition.

         On April 26, 2013, Michael contacted Christopher Grab, the Director of EDR, and sought on DMV’s behalf “an immediate Order by EDR to stay all proceedings as it relates to any current, pending and/or future grievances that may be filed by Grievant.” Pl.’s Ex. 7, at 2. Michael requested that the stay remain in place until the lawsuit seeking to remove Michael as special counsel was resolved.

         Grab responded to Michael’s request on May 3, 2013. Grab wrote that “[EDR] considers the filing timeframe for dismissal grievances in these matters tolled during the pendency of the ...


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