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Stultz v. Commonwealth, Department of Motor Vehicles

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

August 26, 2016



          Hon. Glen E. Conrad, Chief United States District Judge.

         This case is presently before the court on the plaintiffs motion for partial summary judgment and the defendants' motion for summary judgment. For the reasons set forth below, the parties' motions will be granted in part and denied in part.

         Summary of the Facts

         I. Stultz's employment with DMV

         David Lee Stultz was employed as a law enforcement officer with the Virginia Department of Motor Vehicles ("DMV") from November 25, 2005 until he was terminated on April 16, 2013. From November 2010 to October 1, 2012, Stultz served as the Special Agent in Charge ("SAC") of the Appomattox Division of DMV Law Enforcement Services, which was headquartered at the DMV's Customer Service Center in Lynchburg (the "Lynchburg CSC"). While in that position, Stultz supervised a number of employees, including Assistant SAC Robert Supinger, Senior Special Agents Anastasia Wootten and Andrew Hicks, and Program Support Technician Jennifer Dawson. His chain of command included Donald Boswell, the Director of Law Enforcement Services; Joseph Hill, the Assistant Commissioner of DMV's Office of Enforcement and Compliance; and Richard Holcomb, the Commissioner of DMV.

         The Appomattox Division was abolished effective October 1, 2012. From that point until his termination, Stultz managed the DMV's Vehicle Theft Enforcement Unit. While in that position, Stultz's chain of command included Thomas Penny, the Director of Field Operations; Hill; and Holcomb.

         II. Concerns about Dawson

         Upon being appointed to the SAC position, Stultz began to receive complaints regarding Dawson, who performed administrative functions for the Law Enforcement Services office in Lynchburg. The complaints increased after Stultz began working full-time at that office, and Stultz, himself, observed her unusual and erratic conduct. Such conduct included crying uncontrollably, lying on the floor, sitting in complete darkness, hiding under her desk, making remarks about possessing a concealed weapons permit, expressing fear that her stepson was trying to kill her, and making suicidal remarks.

         Stultz relayed his concerns regarding Dawson's behavior to Boswell and Hill. Stultz "was told to keep it 'low key' and [he] was not allowed to implement progressive discipline beyond ... verbal counseling [or] take any action responsive to the behavior [he] observed to include involving family support or mental health services." Docket No. 454-1 at 5, ¶ 23.

         At Dawson's request, Boswell and Hill approved a series of office modifications in an effort to alleviate her safety concerns. They agreed to add a lock to the glass entry door to the office, and to install a push button at Dawson's desk that would allow her to unlock the door for people to enter. They also approved Dawson's request for a panic alarm and intercom system. Even after those modifications were made, Dawson continued to express fear for her personal safety at work. With Boswell's approval, Stultz implemented a policy prohibiting DMV law enforcement officers from working alone with Dawson at the Lynchburg office.

         III. Supinger's hotline complaint and Stultz's subsequent communications with the Police Benevolent Association and the Secretary of Transportation

         On October 17, 2011, Supinger utilized the State Employee Fraud, Waste, and Abuse ("FWA") Hotline operated by the Division of State Internal Audit ("DSIA") to lodge an anonymous complaint regarding Dawson and the effect that her behavior was having on the Lynchburg Law Enforcement Services office. Supinger emphasized that Dawson was exhibiting the traits of someone in need of professional services, that her behavior was damaging morale and productivity, and that other employees were afraid to be left in the office alone with her. At the conclusion of the complaint, Supinger pleaded for "help ... before this gets any worse and one of us gets hurt." Docket No. 454-7 at 8. Supinger listed Stultz as Dawson's supervisor, and identified several employees affected by Dawson's conduct, including Supinger, Hicks, and Wootten.

         Supinger's complaint was assigned Case Number 12650. DSIA forwarded the anonymous complaint to DMV's Internal Audit division ("Internal Audit"). James Womack, the Director of Internal Audit, assigned the complaint to Cheryl Sanders. Both Womack and Sanders were employed under Assistant Commissioner Hill's chain of command.

         On or about November 28, 2011, Sanders contacted Stultz regarding the anonymous complaint and conducted an interview by telephone. She was assisted by another internal auditor in her office. During the interview, Sanders inquired about Dawson's behavior in the workplace. Stultz shared the concerns that Dawson had expressed regarding her safety, including Dawson's fear that her stepson was trying to kill her. Stultz described the actions that had been taken in an effort to alleviate Dawson's safety concerns. He also discussed the impact that Dawson's behavior was having on her coworkers. Additionally, Stultz indicated that he was afraid that Dawson may commit suicide.

         Stultz advised Sanders that he would gather additional information to respond to all of her inquiries. On November 30, 2011, Stultz emailed Sanders a chronological list of events involving Dawson, along with other documents supporting his concerns.

         Stultz also provided Sanders with the names of additional employees with first-hand knowledge of Dawson's behavior, including Supinger, Wootten, Hicks, and Betty Jenson. However, none of those employees were interviewed by Sanders. Instead, the only other person that she talked to was Hill.

         An interview narrative was prepared following Stultz's interview. The original version of the interview narrative included the information that Stultz had shared regarding Dawson's stepson and her fear that he might harm her. Although the DMV Internal Audit Office Policy and Procedures Manual expressly provides that an interviewee's responses should be recorded verbatim, Womack directed Sanders to alter the interview narrative to remove any references to Dawson expressing fear for her safety. Stultz's statements to the internal auditors that Dawson was "afraid for her life, " that "she would be fine today and laying in the floor tomorrow, " and that she had "a meltdown on Monday, November 21, 2011 when she was scared for her life" were changed to state that Dawson "was having some personal family issues" and that those issues had "caused her to act disruptively while at work." Docket No. 454-76 at 14, 16.

         On January 20, 2012, Womack sent DSIA a final report regarding Supinger's FWA complaint. The report indicated that Supinger's allegations were "unsubstantiated" and that there was "no evidence that [Dawson had] placed co-workers at risk of physical harm ... [or was] destroying morale and damaging productivity." Docket No. 454-76 at 4-5. In a subsequent deposition, Sanders acknowledged that while the report included the finding that Dawson posed no risk of harm, the investigation by Internal Audit did not actually "look at anything in reference to the mental stability of Ms. Dawson or any safety risk she posed." Docket No. 454-15 at 13.

         In March of 2012, Stultz obtained a copy of the final report through a Freedom of Information Act ("FOIA") request. Upon receiving the report, Stultz discovered that it included no mention of his concerns regarding Dawson's safety and the safety of others in the workplace, and yet contained a specific finding that Dawson posed no risk of harm.

         Stultz subsequently communicated with Tim Sadler with DSIA. Based on the information gained from those communications and his review of the file for Case No. 12650, Stultz determined that the FWA program "was susceptible to manipulation and had in fact been corrupted" by DMV officials. Docket No. 454-1 at 10. The safety concerns identified by Stultz had not been investigated by DMV's internal auditors and instead had been "sanitized from the summary of the investigation report" submitted to DSIA. Id. Although Stultz was told that the FWA program does not typically cover workplace safety issues, the FWA complaint was closed as "unsubstantiated, " with the specific finding made that Dawson posed no risk of harm to others. Docket No. 454-76 at 5.

         In May of 2012, on his own time and using his personal phone, Stultz contacted Sean McGowan, the Executive Director of the Virginia Police Benevolent Association ("PBA"), and shared his concerns regarding the possibility that the FWA investigation had been fraudulently manipulated. McGowan agreed to help Stultz gain access to Sean Connaughton, the Secretary of Transportation.

         On May 31, 2012, Stultz began communications with Connaughton and his executive assistant, Georgia Esposito. Stultz sent McGowan an email from his personal email account that was immediately forwarded to Connaughton's attention. In the email, the subject of which was "Governor Hotline (Fraud, Waste and Abuse), " Stultz shared his concerns regarding the manner in which the anonymous complaint had been handled by DMV's internal auditors. Stultz indicated that the auditors had sanitized the final report submitted to DSIA, and that the information that he had shared during his interview and in follow-up communications regarding Dawson's behavior had been omitted from the final report. Stultz described the investigation as "fraudulent, " and emphasized that "it kept the situation [with Dawson] from being handled at that time." Docket No. 454-2 at 50-51.

         Stultz forwarded Connaughton a copy of the redacted version of the final report that he had received in response to his FOIA request. McGowan advised Stultz via email that he had spoken with the Secretary's office, and that "[t]he document [was] being taken very seriously." Docket No 454-2 at 53. McGowan also noted that the Secretary's office may soon request additional information.

         Connaughton's office subsequently inquired as to whether Stultz could provide a non-redacted version of the final report. Stultz advised that he did not have access to a non-redacted version, but that he could attempt to provide the redacted information, which included Dawson's identity.

         On June 4, 2012, after filling in the redacted spaces in the final report, Stultz sent Connaughton another email through McGowan. In the email, Stultz noted that it was "unbelievable the emails [he] sent DMV Internal Audit, " which were "discounted ... in their final summary." Docket No. 454-2 at 57.

         On June 5, 2012, Esposito forwarded Stultz's communications to Holcomb, who then shared them with Jeannie Thorpe, DMV's Director of Human Resources.

         IV. Supinger's transfer

         On March 16, 2012, Boswell traveled to Lynchburg to announce that Supinger was being transferred to DMV's office in Waynesboro. Although Supinger and his wife, who is Asian, had worked in the same office for ten years, Boswell cited DMV's anti-nepotism police as one of the bases for the decision. Supinger opposed the reassignment, as did Stultz. See, e.g.. Docket No. 466-64 at 6 (Thorpe Dep.) (acknowledging that Stultz "oppose[d] this new work assignment. . . [f]rom the very beginning"). Stultz advised Boswell that he did not think the decision was "fair" and that the decision should be reconsidered. Docket No. 466-70 at 7.

         Supinger utilized the state employee grievance procedure to file a grievance regarding the transfer decision. Stultz was the "first step respondent" in the grievance process. Docket No. 466-70. Upon reviewing Supinger's grievance, Stultz proposed a compromise that would have permitted Supinger to remain in the Appomattox Division.

         Supinger subsequently filed a charge of discrimination with the EEOC, which was based, in part, on his belief that he was being discriminated against due to his wife's nationality. Supinger has since filed an employment discrimination action against DMV, which is currently pending in this district. See Supinger v. Commonwealth. No. 6:15CV00017 (W.D. Va. 2015) (Moon, J.)

         V. Reorganization of DMV Law Enforcement Services

         On June 27, 2012, Hill announced that DMV would be reorganizing the Law Enforcement Services divisions and that Stultz's division would be abolished effective October 1, 2012. Under the reorganization plan, the Law Enforcement Services divisions, which had been aligned with the Virginia State Police division boundaries, would be reorganized into eight districts.

         Stultz and other law enforcement officers expressed concerns regarding the effect that the reorganization would have on the officers' ability to properly utilize the Virginia State Police's Statewide Agencies Radio System ("STARS"). Based on his experience as DMV's STARS representative and communications that he received from Virginia State Police officials, Stultz believed that disparities between an agency's operational boundaries and the Virginia State Police field division boundaries could hinder or delay emergency responses and place officers and the public at a risk of harm.

         Prior to the reorganization taking effect, Stultz expressed his concerns to a number of DMV officials, including Boswell, Hill, and Holcomb. DMV nonetheless moved forward with the reorganization on October 1, 2012.

         VI. Stultz's communications with Senator Deeds

         On October 1, 2012, Stultz contacted Virginia State Senator Creigh Deeds using his personal phone and email account, and made an appointment to meet with him. On October 12, 2012, Stultz and several other DMV law enforcement officers met with Senator Deeds on their own time, using a personal vehicle. During the meeting, Stultz expressed concerns regarding the safety issues that could result from DMV's decision to abandon the STARS divisions utilized by the Virginia State Police. Stultz explained the STARS system to Deeds and provided documents that supported his safety concerns.

         On January 4, 2013, Senator Deeds proposed legislation that would have directed "the Joint Legislative Audit and Review Commission to study reorganizing all state law-enforcement agencies under the Virginia State Police." Docket No. 454-8. Stultz supported the legislation.

         VII. The Wootten-Dawson incident and subsequent investigation

         Dawson was placed on administrative leave from March 2012 through May 2012. When Dawson returned, Hill transferred her from Law Enforcement Services to the DMV's External Audit division, and assigned her to an office in another part of the Lynchburg CSC. Wootten and other employees in the Law Enforcement Services division were instructed not to interact with Dawson. See Docket No. 428-2 at 33.

         On September 13, 2012, Wootten encountered Dawson inside a small women's bathroom at the Lynchburg CSC. There is a dispute as to what occurred next. Wootten claimed that Dawson aggressively bumped her in her shoulder while Dawson denied any significant touching.

         Immediately following the incident, Wootten advised Stultz that Dawson had "just assaulted [her], " and that Dawson "should be charged." Docket No. 428-6 at 69. When Stultz informed Boswell of the alleged assault and battery, Boswell advised Stultz that he "d[id]n't want [Stultz] investigating" the incident, and that it would be handled by Human Resources. Docket No. 428-2 at 52. Stultz "was instructed to tell [Wootten] to hold tight, " and that someone from Human Resources was "going to be contacting [her] about this." Docket No. 428-2 at 56.

         On September 14, 2012, Supinger accompanied Wootten to the office of a state magistrate. Wootten swore out a warrant for Dawson's arrest, which was executed shortly thereafter.

         Upon learning of the incident involving Wootten and Dawson, DMV officials asked Thomas Penny, the Director of Field Operations, to conduct an investigation. As part of his investigation, Penny interviewed approximately fourteen individuals, including Stultz, Supinger, Wootten, and Hicks.

         On December 7, 2012, Penny issued Hill an internal memorandum containing an "executive summary" of his investigation. In the memorandum, Penny reported that he was "unable to substantiate Wootten's claim that there was actual physical contact amounting to a battery." Docket No. 428-3 at 1. Penny went on to conclude that the incident, even as described by Wootten, did not rise to the level of workplace violence, and that there was insufficient evidence to suggest that Dawson's presence posed a threat to the safety of her coworkers or the public. Penny also provided a list of "additional issues" identified during the course of his investigation that warranted further review, including "whether or not law enforcement personnel colluded in unfairly prosecuting [Dawson] for reasons other than the belief that she actually committed a crime"; and "whether or not information about [Wootten's] efforts to secure a warrant for [Dawson] was purposely withheld from HQ by Appomattox management to prevent intervention in her arrest." Docket No. 428-3 at 2.

         On December 17, 2012, Penny issued Thorpe an internal memorandum containing his "investigative summary." Docket No. 428-3 at 4. The December 17, 2012 memorandum addressed the same topics with greater factual detail and reached the same conclusions. Penny ended both memoranda by noting that Dawson was scheduled to be tried on the criminal charge on January 29, 2013, and requesting the opportunity to attend the trial and assess whether the witnesses testified in a manner consistent with their interviews.

         Dawson was ultimately acquitted following a bench trial on January 29, 2013. Thereafter, the DMV resumed Penny's investigation into what had been going on in the Appomattox Division and whether Wootten, Supinger, or Stultz had engaged in misconduct.

         VIII. Disciplinary actions

         On March 5, 2013, Penny and Hill went to Stultz's office and delivered a letter of suspension. They took Stultz's badge, ID, firearm, computer, and keys, and told him that he had to leave the premises. According to Stultz, Penny advised him that '"[t]he situation was manageable until [Stultz] went outside the department to other government officials, especially going to the Transportation Secretary, " and that they "[u]nfortunately [had] to handle things this way.'" Docket No. 454-1 at 23. Hill was present when the statements were made by Penny and did not dispute their accuracy.

         On March 6, 2013, Hill issued Stultz a lengthy letter detailing alleged misconduct "for which [he] may be subject to disciplinary action." See Docket No. 454-32 at 2. The letter contained multiple allegations, including the following: (1) that Stultz and his subordinates "appear[ed] to have intentionally abused or recklessly used [their] police powers to arrest - under color of DMV authority - a coworker for assault and battery under questionable circumstances ... which ultimately led to an acquittal of all charges"; and (2) that Stultz allowed his subordinates to have Dawson arrested for assault and battery even though Stultz "had expressly been told to take no immediate action, " and even though he was "aware of [a] conflict between [himself, Wootten, Supinger, and Dawson]." Id, at 2-3. Hill observed that Boswell, after learning of the alleged assault and battery, specifically instructed Stultz to not investigate the incident and "to tell Wootten to 'hold tight, '" and that, instead of heeding Boswell's instructions, Stultz had Supinger investigate the matter and sent Supinger to accompany Wootten in pursuing a criminal prosecution. Id. at 4. Hill emphasized that "[a]ssigning anyone to investigate the case was a violation of a direct order, " and that "[a]ssigning it to someone from the Lynchburg office -particularly an individual who [Stultz] knew or should have known had significant issues with PST Dawson - appear[ed] to exhibit poor judgment and did not appear to comport with [Stultz's] sworn oath to 'impartially discharge' all duties incumbent upon [him]." Id. at 3. Hill further emphasized that Stultz's "actions in clearing SSA Wootten and AS AC Supinger to proceed to the Commonwealth's Attorney were in direct contradiction to the order to have her 'hold tight.'" Id. at 4.

         At the conclusion of the March 6, 2013 letter, Hill advised Stultz that he would be placed on "pre-disciplinary leave until a determination is made in this matter, " and that he had the right to respond to the allegations set forth in the letter. Id. at 141. Hill indicated that a written response should be sent to him no later than 5:00 p.m. on March 13, 2013, and that the response "should specify whether [Stultz was] electing to proceed under the Commonwealth of Virginia Grievance Procedure [Va. Code §§ 2.2-3000 to 2.2-3008] or the Law-Enforcement Officers Procedural Guarantee Act [Va. Code § § 9.1-500 to 9.1-507]." Id. These statutes are referred to herein as the VGP and LEOPGA, respectively.

         On March 29, 2013, Stultz commenced a grievance proceeding under the VGP regarding his suspension by submitting VGP Grievance Form A. Docket No. 454-33 at 3. At that time, Stultz had not been terminated.

         Stultz's counsel requested and received an extension of time to respond to Hill's March 6, 2013 letter. He responded by letter dated April 2, 2013. See Docket No. 454-34 at 2. At the conclusion of the letter, counsel noted that "[s]ince the Department of Motor Vehicles has not adopted a specific policy in reference to proceeding under the [LEOPGA, ] an informed decision cannot be made as to an appropriate election." Id. at 18.

         On April 16, 2013, Stultz was terminated. Hill issued three Written Notices setting forth the grounds for Stultz's termination. The first Written Notice detailed four instances of alleged misconduct stemming from the incident involving Wootten and Dawson on September 13, 2012. See Docket No. 428-2 at 161. Hill cited to Stultz's alleged failure to follow Boswell's instructions to not investigate the incident and to tell Wootten to "hold tight." Id. (internal quotation marks omitted). Hill also cited to Stultz's alleged failure to keep upper management informed of issues that arose within his assigned division. As a final matter, Hill noted that DMV had "significant concern regarding [Stultz's] credibility, ... in particular the manner in which [he] described the circumstances surrounding Wootten's trip to the Commonwealth's Attorney's office." Id. at 163-64. Hill emphasized that "[credibility is paramount in law enforcement and an essential function of the job, " and that Stultz's "failure to be truthful in the course of the investigation demonstrate[d] a lack of integrity in [his] role as a sworn officer." Id. at 164.

         Hill issued two additional Written Notices containing allegations of misconduct discovered "[i]in the course of investigating the issues surrounding the September 2012 arrest incident." Docket No. 459-6 at 11, 15. One of the Written Notices alleged that Stultz "demonstrate[d] abuse of authority, lack of objectivity, and extremely poor judgment" by advising Supinger that he intended to give him an Extraordinary Contributor rating on an evaluation "[d]espite being told by [Boswell, Stultz's supervisor] that an Extraordinary Contributor rating was unwarranted." Id. at 15. The other Written Notice alleged that Stultz engaged in "serious misconduct" when he "obtained a copy of a report from the Fraud, Waste, and Abuse Hotline via a FOIA request, " filled in the information that had been redacted to maintain anonymity, and "sent the report, with [the] additions, to a third party outside of the DMV." Id. at 11.

         Wootten and Supinger were also suspended in March of 2013. Like Stultz, they were then terminated in April 2013.

         IX. Procedural wrangling

         The Virginia Attorney General appointed Karen Michael as special counsel to represent DMV during the course of the administrative proceedings arising from the disciplinary actions taken against Stultz, Wootten, and Supinger. On April 17, 2013, Stultz, Wootten, and Supinger 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 the Office of Employment Dispute Resolution ("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." Docket No. 454-38 at 2. Michael noted that Stultz had recently been issued Written Notices that resulted in his termination, and that a separate grievance stemming from the termination could be forthcoming. She requested that the stay remain in place until the lawsuit seeking to remove her as special counsel was resolved.

         On April 27, 2013, Grab contacted Stultz's counsel and asked that he respond to Michael's request. In response, Stultz's counsel agreed that the requested stay was appropriate. Counsel, emphasized, however, that such agreement was "contingent upon sufficient protection being given to protect [Stultz] from any prejudice in reference to the implementation of the stay." Docket No. 454-40 at 2. Counsel requested that "the order reflect that it relates to any current, pending, and/or future grievance that may be filed by the grievant, " including "any obligation on behalf of the grievant to provide or file his grievance based on the termination from employment which occurred on April 16, 2013." Id. ...

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