United States District Court, W.D. Virginia, Lynchburg Division
Robert. E. Lee Supinger, Jr., Plaintiff,
Commonwealth of Virginia et al., Defendants.
K. MOON, UNITED STATES DISTRICT JUDGE
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.
Court will grant Defendants' motion as to Count I, as
Plaintiff's Title VII racial discrimination claim was
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
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.
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.
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.
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.
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.
Racial Discrimination (Counts I and VI)
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.
Status Before Transfer
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).
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).
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
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).
Title VII Retaliation (Count II)
filed several internal grievances and EEOC
charges. Plaintiff alleges that he was terminated
in retaliation for filing these complaints.
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).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.
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.
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).
First Amendment Retaliation (Count III)
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.
Subjects of Plaintiff's Speech
Coworker Jennifer Dawson's Behavior
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. She had multiple instances where she
behaved in an animated or emotional manner Plaintiff felt was
inappropriate in the office context. Throughout these various
acts, Supinger and other coworkers expressed concern about
Dawson's behavior to their superiors.
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)
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).
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).
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).
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. (Dkt. 188-8 at
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).
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).
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).
Obstruction of Justice
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).
Communications with Public Officials
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.
April 27, 2012 - Meeting with Senator Steve Newman
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).
14, 2012 - Meeting with Police Benevolent Association
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.)
September 14, 2012 -Email to Senator Newman
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).
September 16, 2012 - First Email to Governor McDonnell.
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).
September 24, 2012 and October 5, 2012 -Emails to Various
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.)
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.)
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.)
October 12, 2012 - Meeting with Senator Creigh Deeds
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).
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
February 5, 2013 - Third Email to Governor
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 ...