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Supinger v. Commonwealth

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

April 26, 2017

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

          MEMORANDUM OPINION

          NORMAN K. MOON, UNITED STATES DISTRICT JUDGE

         This dispute relates to Plaintiff's termination from his employment as a law enforcement officer with the Virginia Department of Motor Vehicles (“DMV”). Plaintiff has brought claims against: the DMV; the Commonwealth of Virginia; DMV Commissioner Richard Holcomb, DMV Assistant Commissioner Joseph Hill; DMV Human Resources Director Jeannie Thorpe; DMV Director of Law Enforcement Donald Boswell; and DMV Director of Fuels Tax Tom Penny. The parties have filed cross motions for summary judgment. The claims at issue in these motions are: Title VII racial discrimination (Count I); Title VII retaliation (Count II); First Amendment retaliation (Count III); Procedural Due Process violations (Count IV); 42 U.S.C. § 1983 supervisory liability (Count V); and 42 U.S.C. §§ 1981 and 1983 racial discrimination (Count VI). Plaintiff seeks summary judgment on the following: (1) whether he has established a prima facie case of racial discrimination under Counts I and VI; (2) whether he engaged in a protected activity and faced an adverse action under Count II; and (3) whether his speech was on matters of public concern in Count III. Defendants seek summary judgment on all of Plaintiff's claims except for Count IV, which is on appeal to the Fourth Circuit on the question of qualified immunity.

         The Court will grant Defendants' motion as to Count I, as Plaintiff's Title VII racial discrimination claim was untimely.

         The Court will also grant Defendant's motion as to Count II. Plaintiff has failed to demonstrate that Defendants' reasons for terminating him were pretext for wrongful retaliation over Plaintiff's filing of EEOC charges and internal grievances.

         As to Count III, the Court will grant Defendants' motion on the grounds that each of the defendants is entitled to qualified immunity. It was not clearly established that Defendants' conduct was in violation of the First Amendment.

         For Count IV, it is uncontested that the claim against Defendant Penny should be dismissed. The Court will decline to address any damages issue until the issue of qualified immunity has been resolved by the Fourth Circuit.

         Count V is dependent on a finding of constitutional violations in Counts III and IV. The Court will grant partial summary judgment with respect to supervisory liability for Count III, as that underlying claim is barred by qualified immunity. To the extent Defendants moved for summary judgment as to supervisory liability for Count IV, it is denied.

         Count VI is evaluated under the same substantive standard as Count I. Under that standard, Plaintiff has failed to carry his burden of demonstrating that Defendants' legitimate reasons were pretext for unlawful racial discrimination, and Defendants' motion will be granted.

         I. Facts

         Although there are numerous claims that necessitate a somewhat lengthy recitation of the facts, the overall narrative of this case is not complicated. Plaintiff was unhappy with several aspects of his workplace at the DMV, including the conduct of a coworker Jennifer Dawson and the proposed reorganization of the DMV. As a result, Plaintiff took actions with the potential to create conflict with DMV management, such as helping launch a criminal investigation into Dawson, filing numerous grievances, and reporting his concerns to elected state officials. Plaintiff also faced negative employment actions during the relevant period, including being transferred to a distant office and eventually being terminated. The question before the Court is whether these negative actions taken against Plaintiff were wrongful and discriminatory, or whether they were lawful and justified. The specifics of this dispute are discussed in more depth below, organized by the claim to which they relate.

         a. Racial Discrimination (Counts I and VI)

         Plaintiff was reassigned from the Lynchburg DMV office to the one in Waynesboro. Plaintiff alleges that this transfer was motivated by racial discrimination because he is married to a woman of a different race.

         i. Status Before Transfer

         Plaintiff worked as an Assistant Special Agent in Charge (“ASAC”) in the Appomattox Division of Virginia Department of Motor Vehicles (“DMV”), as a member of Law Enforcement Services. (Dkt. 184-1 ¶ 2). Plaintiff's primary office was located in the lower level of the Lynchburg DMV Customer Service Center (“Lynchburg CSC”). (Dkt. 181-47 at 1). Plaintiff, who is white, was married to a non-white Korean female who worked in the Customer Service Delivery Administration in the upper level of the Lynchburg CSC. (Id.) The two did not interact in the course of their normal business and had worked in the same Lynchburg DMV for 12 years prior to his reassignment. (Id.; dkt. 184-3).

         ii. Transfer

         DMV Assistant Commissioner Joseph Hill reassigned Plaintiff from the Lynchburg CSC to the Waynesboro CSC on March 16, 2012. (Dkts. 184-3; 181-63 ¶ 14). At the time of the reassignment, the reason given was to effectuate DMV's nepotism policy by separating him from his wife who worked in the same building. (Dkt. 184-2 at 28). In a subsequent email a few days later, DMV Commissioner Richard Holcomb claimed that the primary reason for the transfer was a need for leadership in the Waynesboro CSC, as Senior Special Agent Tony Stovall had recently transferred from the Waynesboro office to the Culpeper Division. (Dkt. 184-3).

         The reassignment caused several disruptions to Plaintiff. As a result of the reassignment, Plaintiff was required to drive approximately 1.5 hours each way from his home to the Waynesboro office. (Dk. 184-2 at 36). Additionally, Plaintiff felt the move was effectively a demotion because he supervised few agents in Waynesboro and he conducted more fieldwork rather than managerial tasks. (Id. at 35-36, 66).

         However, there were several factors mitigating these disruptions. Plaintiff was not required to travel to Waynesboro every day, and in fact only travelled there about two days per week. (Dkt. 181-60 at 31). Relatedly, he had office space available to him in Lynchburg for the times he worked there. (Dkt. 187-1 ¶ 6). Plaintiff's travel time was counted as time worked, and it was made using a state car with gas paid for by the state. (Dkts. 181-60 at 30-31; 181-49 at ECF 5). Plaintiff also retained his same title and salary after the reassignment. (Dkt 181-60 at 36 and 38). Further, he continued to do some managerial tasks associated with the ASAC position, such as coordinating schedules, assigning cases, and completing performance evaluations. (Dkts. 181-60 at 40, 39, 44).

         b. Title VII Retaliation (Count II)

         Plaintiff filed several internal grievances and EEOC charges.[1] Plaintiff alleges that he was terminated in retaliation for filing these complaints.

         i. EEOC Charges

         Plaintiff filed an EEOC intake questionnaire related to alleged racial discrimination on January 17, 2013. (Dkt. 181-48). However, the EEOC did not produce a charge based on his questionnaire until many months later. (See dkt. 187-5). Plaintiff finally filed an EEOC charge alleging racial discrimination related to his reassignment on December 10, 2013. (Dkt. 181-45).[2]The charge alleged racial discrimination on the basis of his interracial marriage. (Id.) The charge also indicated that the discrimination was continuous, with the earliest incident occurring on March 16, 2012 (the reassignment) and the latest occurring on January 13, 2013. (Id.)

         Plaintiff's declaration includes mentions of several other EEOC charges that were not presented as evidence and were only discussed in a footnote in Plaintiff's opposition to Defendants' motion. (Dkt. 187 at 13 n.6). Those are: a gender discrimination intake questionnaire in October 2012, a gender discrimination charge in December 2012, a retaliation intake questionnaire in March 2013, and an unspecified discrimination charge in March 2012. (Dkt. 187-1 ¶ 15). These EEOC charges will also be considered.

         ii. Internal Grievances

         Plaintiff filed a number of internal grievances in the weeks and months leading up to his termination. His grievances related to his transfer to Waynesboro (dkts. 181-49, 184-2 at 55), an allegation letter sent to him (dkt. 133 ¶ 54); his transfer to the Fuels Tax Enforcement division (Id. ¶ 80); DMV's alleged retaliation against him (Id. ¶ 102); and his performance evaluation (Id. ¶ 119).

         c. First Amendment Retaliation (Count III)

         Plaintiff communicated with several public officials regarding his various concerns. Plaintiff alleges that he was terminated in retaliation for speaking to these officials, in violation of his First Amendment rights.

         i. Subjects of Plaintiff's Speech

         1. Coworker Jennifer Dawson's Behavior

         Throughout the relevant period, Plaintiff observed and reported on what he believed to be troubling and dangerous behavior from a coworker, Jennifer Dawson. For instance, he perceived that Dawson was sometimes paranoid about her own safety.[3] She had multiple instances where she behaved in an animated or emotional manner Plaintiff felt was inappropriate in the office context.[4] Throughout these various acts, Supinger and other coworkers expressed concern about Dawson's behavior to their superiors.[5]

         Dawson also had two physical confrontations with coworkers. On February 23, 2012, Dawson threw a stack of papers at her supervisor, Special Agent in Charge David Stultz. (Dkt. 184-6 ¶ 35). On September 13, 2012, there was an incident in the women's bathroom where Dawson shoved or pushed Anastasia Wootten (a Special Agent at the Lynchburg CSC), although the severity and circumstances of this incident are a matter of considerable debate. (See dkt. 181-40 at 10-11, 181-16). As a result of the incident, Wootten, with the support and aid of her supervisors Supinger and Stulz, pursued criminal charges against Dawson. (Dkt. 187-1 ¶ 17). Based on her aforementioned behavior, Supinger felt that Dawson was “an employee who is a danger in the workplace.” (Dkt. 184-43)

         2. Reorganization

         On June 27, 2012, Hill announced a reorganization of the DMV's law enforcement divisions. (Dkts. 184-6 ¶ 70; 181-7). Prior to the reorganization, the boundaries of the seven DMV “home divisions” mirrored those of the Virginia Statewide Radio System (“STARS”) operated by the Virginia State Police (“VSP”). (Dkt 184-6 ¶ 76). The reorganization caused the DMV law enforcement divisions to become aligned with the eight DMV Customer Service Management Administration Districts instead of the STARS divisions. (Dkt. 181-63 ¶¶ 5-9). Under the new alignment, a DMV officer's home division could contain multiple STARS divisions, each with their own dispatch center. (Dkt. 184-6 ¶ 83). DMV law enforcement officers' radio equipment, however, was programmed to function within a single STARS division. (Id. ¶ 80). After the reorganization, DMV management required officers to change to their radio channels when they entered a new STARS division so that they were communicating with the dispatcher that controlled their geographic region. (Dkts. 184-6 at 87; 181-7). Failure to do so might result in loss of communication or communicating with a dispatch that was geographically remote from the officer's location. (Dkt. 184-6 ¶¶ 84, 85).

         Michael Bolton, the Program Director for STARS, opined on the change at several points. In an email to Stultz in 2010, he expressed concern with DMV's plan to change its boundaries away from the STARS ones. (Dkts. 181-5). However, he also clarified in 2012 that training agents to change their radios as they crossed STARS boundaries was a possible solution to the problems presented. (Dkt. 181-6; see also dkt. 192-11 ¶ 5).

         Additionally, as a result of the reorganization, Plaintiff's Appomattox Division was merged with the Roanoke Division and Supinger was to be transferred to the Fuels Tax Enforcement unit. (Dkt. 93-1). Supinger complained of this transfer and was granted a reassignment to the Hampton Division instead. (Id.) Finally, Supinger expressed concern that the reorganization would result in skewed supervisor-to-employee ratios, resulting from too many supervisors in certain locations. (See, e.g., dkt. 184-42).

         3. FWA Hotline

         On October 11, 2011, Supinger filed an anonymous Fraud, Waste, and Abuse (FWA) complaint regarding Dawson's conduct to the “Hotline” run by the Virginia Department of State Internal Audit (“DSIA”). (Dkt. 184-18). The complaint primarily concerned the threat to others in the office posed by Dawson due to her unstable mental state. (Id.) The Hotline complaint was referred to James Womack, Director of Internal Audit at DMV, who assigned investigation of the case to Cheryl Sanders.[6] (Dkt. 188-8 at 31).

         Sanders conducted the investigation by reviewing documents and interviewing both Stultz and Hill. (Dkt. 184-39 at ¶ 3). In coordination with Tim Sadler, Hotline Coordinator at DSIA, Sanders narrowed the scope of the investigation to complaints that Dawson was not passing along phone messages and was absent from her desk, rather than investigating allegations that she was a danger to herself and coworkers. (See dkt. 188-2). The report concluded that Dawson's management was sufficiently addressing the phone issues. (Dkt. 184-39 at ¶ 8).

         Sanders decided that the allegations regarding Dawson as a danger to others “lacked specificity” but decided to discuss them with Dawson's supervisors in interviews to see if they were aware of perceived problems. (Dkt. 184-39 at ¶ 3.) The report found that management was addressing these “performance issues” and that Sanders did not find any evidence that Dawson “placed co-workers at risk of physical harm, ” or that she was “destroying morale or damaging productivity.” (Id. at ¶ 4). Plaintiff, however, finds several issues with this conclusion. Individuals associated with the Hotline process have stated that it is not the intended role of the Hotline to address concerns such as the potential safety threat posed by Dawson. (Dkts. 188-8 at 54; 191-6 at 111). Furthermore, Womack had instructed Sanders to reword portions of her summary of her interview with Stultz in which Stultz described Dawson's erratic and potentially harmful behavior. (Dkt. 191-6 at 111-114).

         After receiving the report, Stultz contacted Sadler to communicate his belief that the investigation had not been adequately performed, particularly with respect to the Dawson safety issue. (Dkt. 188-7 at 37). Sadler considered Stultz's objections and conducted additional investigations of his own, but ultimately concluded that the report was adequate as written. (Id. at 39).

         4. Obstruction of Justice

         Plaintiff believed there was an obstruction of justice with respect to Commonwealth Attorney Kelly Osterbind's prosecution of the incident occurring between Wootten and Dawson in the women's bathroom. Plaintiff primarily objected to a Hill phone call with Osterbind discussing the case. Hill told Osterbind that he, Holcomb and Penny did not believe the incident constituted an assault and battery. (Dkt. 187-21 at 361-363). Senior Special Agent Andrew Hicks told Plaintiff that Osterbind had described the conversation to Hicks as “unpleasant.” (Dkt. 187-34 at 141-42). However, Osterbind has stated that the conversation was “pleasant and professional.” (Dkt. 181-20). Tom Penny also contacted Osterbind to determine what “Wootten told Ms. Osterbine[sic] . . . concerning her encounter with Jennifer Dawson.” (Dkt. 187-39). In that meeting, he told Osterbind that the incident was not an assault in his opinion, and “expressed concern that the facts gathered . . . indicated a possibility that the criminal justice system had been manipulated.” (Id.) Finally, Hill's assistant Ronna Howard contacted Osterbind upon direction of Hill in order to investigate the claim that Osterbind had been threatened into not prosecuting Dawson by Hill and other DMV officials. (Dkts. 187-35; 187-21 at 361-363). Dawson was eventually tried in a bench trial and found not guilty. (Dkt. 188-4).

         ii. Communications with Public Officials

         Having discussed the concerns of Supinger that may constitute constitutionally protected speech under his First Amendment retaliation claim, the Court now turns to discuss whether and when these complaints were communicated with others.

         1. April 27, 2012 - Meeting with Senator Steve Newman

         Supinger, using his private car, drove himself, Stultz, Hicks, and Wootten to meet with Virginia Senator Steve Newman. (Dkt. 184-22 at ECF 6). The parties discussed the “unsafe environment” created by Dawson and other Dawson-related concerns. (Id.) Supinger shared his belief that his transfer to Waynesboro had been in retaliation for speaking out about Dawson at a Charlottesville meeting with Holcomb. (Id.) Plaintiff also raised the concern that the transfer resulted in wasted taxpayer money as a result of the increased commute. (Id.; dkt. 184-2 at 103) Finally, Supinger expressed his concern that he was being retaliated against for filing an FWA Hotline complaint. (Id.; Dkt. 191-3 at 106). Near the end of the meeting, Senator Newman suggested that Stultz “file a grievance for any personnel actions.” (Dkt. 184-22 at ECF 6).

         2. May 14, 2012 - Meeting with Police Benevolent Association (“PBA”)

         Supinger and other officers held a conference call with Police Benevolent Association Executive Director Sean McGowan. (Dkt. 184-1 ¶ 12). In the call, Supinger discussed his concerns with Dawson, as well as alleged fraudulent manipulation of his Hotline complaint that resulted in no appropriate action being taken against Dawson. (Id.)

         3. September 14, 2012 -Email to Senator Newman

         Supinger sent an unsolicited email to Senator Steve Newman from his private account following up on the concerns discussed in their April meeting. (Dkt. 184-42). “First and most importantly, ” the email discussed Dawson's conduct. (Id. at ECF 1). Second, the email discussed STARS and the reorganization. Specifically, the email noted how the reorganization would result in Supinger's transfer to Hampton, which would place him under financial strain and made it so the “transfer to Waynesboro is no longer an issue.” (Id.) The email also mentioned the increased supervisor-to-employee ratio that would result from the reorganization. (Id. at ECF 2). Senator Newman's assistant replied to the email by stating that Senator Newman would pass the concerns along to Commissioner Holcomb, but that “[Senator Newman] does not interfere with personnel matters in state agencies.” (Id. at ECF 2-3).

         4. September 16, 2012 - First Email to Governor McDonnell.

         Supinger sent an unsolicited email to Governor McDonnell from his private account. (Dkt. 184-43). Although Supinger initially mentioned retaliation for filing his Hotline complaint, he then expressly stated: “I am not writing regarding these issues though, but an employee who is a danger in the workplace.” (Id. at ECF 1) (emphasis in original). The email then went on to discuss Dawson's behavior in-depth. (Id. at ECF 1-2). Supinger also expressed his concern that DMV management would retaliate against him and Wootten, and was obstructing justice by interfering in the criminal case against Dawson. (Id. at ECF 2).

         5. September 24, 2012 and October 5, 2012 -Emails to Various Elected Officials

         On September 24, 2012, Supinger sent an identical email to several Virginia elected officials, including: Delegates Habeeb, May, Rust, Scott, Garrett; and Senators Favola, Carrico, and Puckett. (Dkts. 184-44-184-51). The emails focused on waste issues related to the reorganization. First, Supinger opined that the reorganization would be inefficient because significant money had been spent creating the STARS system boundaries, and now DMV was removing itself from alignment with the STARS boundaries. (See id.) Second, Supinger worried about waste resulting from skewed supervisor-to-employee ratios. (See id.)

         Supinger sent a follow-up email to each of these officials on October 5th. (See Dkts. 184-44 to184-51). The stated purpose of these emails was to “clear the record” in case the officials thought he was just a disgruntled employee bringing up personnel issues. (See, e.g., dkt. 42 at ECF 2-3). Supinger reiterated that his concern regarded waste resulting from the reorganization, specifically the supervisor ratios. (Id.) Supinger also detailed some of his communications with supervisors and allegedly retaliatory actions taken against him. (Id.)

         6. October 4, 2012 -Second Email to Governor McDonnell This email primarily addressed Supinger's obstruction of justice concerns. (Dkt. 184-52). Supinger explained the communications between DMV officials and Osterbind which he believed constituted obstruction of justice. (Id.) He also defended his right to contact the Governor to bring up these concerns after he had been cautioned against doing so by Holcomb. (Id.)

         7. October 12, 2012 - Meeting with Senator Creigh Deeds

         Supinger, other members of the Lynchburg CSC, and members of the PBA met with Senator Creigh deeds to discuss “public concerns.” (Dkt. 188-12 ¶ 5). Speaking primarily through Stultz, the group discussed “safely concerns, failures in delivery of services to citizens; inappropriate and hostile actions; violations of law and policy; impropriety and malfeasance of government leadership.” (Id. ¶ 8). The parties specifically discussed: manipulation of the FWA Hotline, safety issues with the new STARS arrangement, and waste issues with the reorganization and new STARS arrangement. (Id. ¶¶ 11, 13, 16; dkt. 184-1 ¶ 13).

         8. December 19, 2012 - Letter to Governor McDonnell Supinger sent a letter to Governor McDonnell on December 19, his third correspondence with McDonnell. The letter primarily concerned retaliation against Supinger and stated “it is most important that I clear my name with you.” (Dkt. 184-53 at ECF 1) (emphasis removed). Supinger defended his characterization of the Osterbind situation, attempting to rebut an investigation by the PBA which “basically states that I am a liar and fabricated the entire incident.” (Id.) Supinger also suggested that some obstruction might still be occurring even if Osterbind's characterization of her conversation with DMV officials was correct. (Id.) Supinger further criticized Osterbind for not informing him directly of the nature of her conversations with DMV officials. (Id. at ECF 3). Finally, Supinger cast doubt about whether DMV's investigation into potential obstruction of justice was sufficiently unbiased and thorough. (Id. at ECF 3-4).

         9. February 5, 2013 - Third Email to Governor McDonnell[7]

         Plaintiff sent a third email (and fourth communication) to Governor McDonnell on February 5th, loosely related to the Osterbind investigation. (Dkt. 133-13). With regard to Osterbind, Plaintiff complained that the DMV had “leaked” Dawson's personnel file to the defense counsel. (Id.) Plaintiff's email primarily concerned fears that he was being retaliated against and ...


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