United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad, Chief United States District Judge.
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
of the Facts
Stultz's employment with DMV
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.
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.
Concerns about Dawson
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
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.
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.
Supinger's hotline complaint and Stultz's
subsequent communications with the
Police Benevolent Association and the Secretary of
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
5, 2012, Esposito forwarded Stultz's communications to
Holcomb, who then shared them with Jeannie Thorpe, DMV's
Director of Human Resources.
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.
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.
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.)
Reorganization of DMV Law Enforcement
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
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.
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.
Stultz's communications with Senator
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
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
The Wootten-Dawson incident and subsequent
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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
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.
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.
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.
and Supinger were also suspended in March of 2013. Like
Stultz, they were then terminated in April 2013.
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.
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.
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.