United States District Court, W.D. Virginia, Abingdon Division
WILLIAMS D. CARMACK, Plaintiff,
COMMONWEALTH OF VIRGINIA, et al., Defendants.
MICHAEL F. URBANSKI UNITED STATES DISTRICT JUDGE.
matter before the court is a motion to dismiss plaintiff
William D. Carmack's Amended Complaint. Carmack filed his
original Complaint in the Circuit Court for the County of
Washington in Abingdon, Virginia on May 30, 2018, alleging
three claims related to his termination on January 4, 2018,
as the Chief Financial Officer of the Southwest Virginia
Higher Education Center ("SWVHEC"). Count I alleged
a violation of Virginia's Fraud and Abuse Whistle Blower
Protection Act, Va. Code § 2.2-3009, et sea, (1950)
("Act"), Count II set forth a cause of action for
retaliation in violation of First Amendment protections
afforded speech brought pursuant to 42 U.S.C. § 1983,
and Count III alleged a state common law wrongful
termination" claim (Bowman claim) - against
three defendants: (1) the Commonwealth of Virginia, (2) the
Commonwealth of Virginia: Southwest Virginia Higher Education
Center (collectively "institutional defendants"),
and (3) David N. Matlock, Executive Director of the SWVHEC,
in his individual and official capacities. ECF Nos. 1-2. On
July 9, 2018, the defendants removed this case to the United
States District Court for the Western District of Virginia
pursuant to 28 U.S.C. § 1331. ECF Nos.
The court assumes familiarity with its previous Memorandum
Opinion, ECF No. 31.
conduct undergirding Counts I through III is a July 2017
complaint Carmack made to Virginia's Fraud, Waste, and
Abuse Hotline ("Hotline"), in which he alleged
multiple instances of workplace misconduct by Matlock (and
others) at the SWVHEC. Five months after filing this
complaint, Carmack's employment as the Chief Financial
Officer ("CFO") at the SWVHEC was terminated. On
November 6, 2018, this court entered an order denying in part
and granting in part the defendants' motion, providing
Carmack with leave to amend. ECF No. 32. Carmack timely filed
his Amended Complaint on November 29, 2018, in which he
attempted to remedy deficiencies identified by the court in
his original Complaint. ECF No. 38. In addition to
reasserting Counts I-III, Carmack added Count IV, asserting
political affiliation retaliation in violation of the First
and Fourteenth Amendments, brought pursuant to 42 U.S.C.
§ 1983. ECF No. 38. The matter before the court is
defendants' motion to dismiss Carmack's Amended
Complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. ECF No. 38.
their renewed motion to dismiss, ECF No. 42, the defendants
allege that Carmack again failed to plead facts sufficient to
support a plausible inference of causation. More
specifically, the defendants contend that Carmack neither
proffered facts sufficient to bridge the temporal gap between
the "protected activity" (OSIG complaint) and his
termination nor adequately advanced a "sufficient
explanation" for the gap. With respect to Count II, the
defendants conceded previously that the record was inadequate
to conclude as a matter of law that Carmack's OSIG
complaint is unprotected by the First
Amendment. ECF No. 17, at 8. They have shown no
indication of having changed their position vis-a-vis the
propriety of disposing of Count II at this early stage in the
litigation except to the extent the court finds that
causation has not been adequately pled. ECF No. 41.
Therefore, the court assumes the defendants stand by their
earlier position and, accordingly, denies the motion as to
Count II in light of its finding below regarding causation.
The defendants next allege that Carmack has not pled an
adequate statutory basis to state a Bowman claim in
Count III and mat the availability of alternative remedies
precludes Carmack from bringing such a claim in the first
place. Lasdy, the defendants allege that Carmack's
newly-asserted Count IV claim should fail for the same reason
that Counts I-III should fail, namely a failure to adequately
plead causation. Upon review of the record and for the
reasons set forth herein, the court DENIES
in part and GRANTS in part the
defendants' motion to dismiss.
was hired by and worked for the SWVHEC as its Chief Financial
Officer ("CFO") on August 1, 2012, with
responsibility for oversight of the center's financial
affairs. ECF No. 38, at 2. The SWVHEC, located in Abingdon,
Virginia and established in 1992, is a multi-college and
university institution in Virginia that partners with public
and private colleges and universities to provide degree
programs, certificates, and professional development courses.
Id. Carmack briefly served as its Interim Director
from June 2015, when the previous Executive Director, Dr.
Rachel Fowlkes, retired, to October 2015, when defendant
David Matlock took over as Executive Director. For two years
and three months, Carmack reported to Matlock. Id.
Carmack was paid 75% by the SWVHEC and 25% by the Southwest
Virginia Higher Education Foundation
2016, Senior Assistant Attorney General Elizabeth Griffin
designated the Foundation as a separate entity from the
SWVHEC. Id. at 2. The Foundation managed all grants
exceeding $25, 000, 000 and built the "Energy
Center" at the request of the Virginia Tobacco
Commission. Id. at 2-3. Carmack was the Chief
Executive Officer ("CEO") of the Foundation.
Id. at 3. Carmack alleges that he worked 40 or more
hours each week for the SWVHEC, often on weekends and was
recognized for his "superior performance,"
including being selected to attend the Virginia Executive
Institution and being appointed by the governor to serve on
the Virginia Solar Authority. Id. at 3. Carmack, a
Democrat, claims that Matlock was selected for the Executive
Director position because of the substantial political
influence of Senator Bill Carrico, a fellow Republican and
chairman of the Board of Trustees for the SWVHEC.
Id. Carmack was allegedly told not to apply for the
position by Senator Carrico in April 2015 because he was
going to hire Matlock for the position, and that he was going
to speak with the individuals who oversaw the hiring to see
that Matlock was appointed. Id.
Carmack asked about an increase in pay for filling in as
Interim Director, Senator Carrico told him to ask Matlock
when he arrived, even though Matlock had not yet been hired
for the position. Id. Matlock was allegedly chosen
over three highly qualified candidates. Id. Carmack
claims that although Matlock was scheduled to begin work as
the Executive Director on October 1, 2015, he did not appear
on the job until October 15, 2015. Id. Carmack
claims that he was hired by Dr. Fowlkes, a Democrat, and that
Carmack was her "pick" to be her successor as
Executive Director. Id. at 3. Carmack claims that
sometime after Matlock was hired, Matlock and others made
comments to him that he "belonged to the wrong
party" or "you belong to the other party," or
"words to that effect." Id. Further, in
November 2015, Matlock called Carmack into his office and
relayed a story about "needling." Id.
Matlock allegedly explained that "needling" is when
a mother bird places sharp objects in her nest to encourage
baby birds to leave the nest. Id. at 3-4. Matlock
further stated that this was the way he got rid of employees
he did not want. Id. at 4.
alleges that during his time as the CFO, he discovered that
Matlock and others were "wasting and misusing"
SWVHEC funds and resources and engaging in other financial
improprieties. Id. Carmack specifically alleges the
(1) On February 13, 2017, Matlock submitted an invoice to the
Foundation for payment of $1, 250 to reimburse his son, Jason
Matlock, a middle school principal, for travel by his
students to a robotics competition at James Madison
University. Carmack alleges this "favored" expense
was neither approved by the Foundation nor a budgeted item.
When asked about the invoice, Matlock allegedly told Carmack
that he offered this reimbursement to all schools in
southwest Virginia, although he provided no evidence
substantiating this claim. Carmack believes this is not true,
claiming that it was improbable that only Jason Matlock
accepted the offer.
(2) Matlock told Carmack to "back off of a husband and
wife "computer team" with control over a $50, 000
grant awarded by the Virginia Tobacco Commission and another
$50, 000 to perform work for the SWVHEC who were
"working in a questionable manner from home" and
collecting overtime pay in a way that Carmack suspected was
fraudulent. Carmack complained to Matlock and Jeff Webb,
SWVHEC's information technology director, about the
suspected fraud. Specifically, Carmack complained about 111
hours of overtime Webb approved for the wife between July and
November 2016. In response, Matlock allegedly told Carmack
that he no longer wanted the couple to report to or file
their timesheets with him, despite the fact that that they
were "supposed to have 'worked' for him."
The couple were allegedly "close personal friends"
of Webb. Carmack claims to have raised this issue with
Matlock by letter dated January 31, 2017.
(3) Matlock failed, after repeated requests, to submit
invoices in a timely manner on the 15th day of the month for
payment per SWVHEC policy.
(4) Matlock allegedly hired a longtime friend, Joe Mitchell,
on or about September 7, 2016, to work as a maintenance
supervisor without first scheduling Mitchell for an interview
by a selection committee as required by SWVHEC policy. When
Carmack cautioned Matlock about pre-selecting employees for
hiring in contravention of SWVHEC policy, Matlock allegedly
told him not to worry about it because Senator Carrico
"had his back." Carmack inquired "numerous
times" with Matlock because Mitchell "would appear
and disappear out of the payroll," but never received a
response besides "leave it alone."
(5) Shortly after Matlock took over as Executive Director in
October 2015, he excluded the finance department from
financial decisions, thereby making it impossible for
Carmack, as CFO, to do his job. Matlock and others allegedly
began to purchase non-budgeted items without the finance
department's knowledge and failed to submit invoices in a
timely manner. Matlock also allegedly organized a community
golf tournament under the name of the Foundation but failed
to account for receipts and expenditures associated with this
and other events.
(6) Matlock also allegedly instructed SWVHEC employees not to
speak with Carmack and began to conduct SWVHEC business in
"secret," apparently replacing a "door with a
window" with a "solid wood door with no
window." He also allegedly placed additional locks on
his door so that he "could control access to his
(7) In December 2016, Matlock allegedly had an art
installation, produced at a cost of $9, 900 and dedicated to
retired Executive Director, Dr. Fowlkes, removed. Carmack
claims that despite repeated requests from members of
SWVHEC's Board of Trustees and other employees to return
the artwork, it remains "missing."
(8) Carmack alleges that Matlock's reassignment of an
information technology employee, Adam Tolbert, to human
resources in December 2015, and decision to grant him access
to confidential employee information, including social
security numbers, salary information, and performance
reviews, was improper and violated SWVHEC policy.
(9) Lastly, proceeds related to a fundraiser hosted by
Virginia Highlands Community College that Matlock was
involved are allegedly missing.
Id. at 4-8.
February 2017, Carmack met with the ombudsman of the
University of Virginia, which provides human resources and
other oversight to the SWVHEC, to share his concerns about
the foregoing. Id. at 8. The ombudsman allegedly
referred Carmack to the Commonwealth's Department of
Human Resources Management ("DHRM"), which in turn
suggested he contact the Commonwealth's Office of State
Inspector General ("OSIG"). Id. In
mid-July, Carmack filed a complaint with the OSIG via their
online website. Id. On or about July 21, 2017, the
OSIG requested Carmack send supporting documentation to Shawn
Cowardin, an OSIG Investigator. Id. In addition to
filing a complaint via the Hotline, on or . about July 31,
2017, Carmack submitted a letter to the OSIG disclosing the
suspected wrongdoing and abuses alleged above. Id.
Carmack claims to have relied in "good faith" on
the above-referenced assurances when he lodged his complaint
with the OSIG. Id.
also spoke with Cowardin in July 2017 about whether Carmack
wished to remain anonymous. Id. Carmack and Cowardin
agreed that because the information in the complaint would be
known only to the CFO, i.e., Carmack, there was no reason to
remain anonymous. Id. Cowardin allegedly assured
Carmack that Matlock could not retaliate against him.
Id. Cowardin also offered to notify Carmack prior to
speaking with Matlock about Carmack's concerns.
Id. In early October 2017, Carmack was notified that
an investigator would be speaking with Matlock later that
day. Id. at 8-9. That same day, Matlock called Kathy
Heitala, Jeff Webb, Joyce Brooks, and Adam Tolbert into his
office and reportedly slammed the door. Id. at 9. It
was at this point that Carmack believes Matlock was contacted
by the OSIG investigator. Id.
alleges that before Matlock was notified of the OSIG
complaint in October 2017, each department manager had a
weekly meeting with Matlock. Id. However, after
learning about Carmack's OSIG complaint, Matlock ceased
meeting with Carmack on a weekly basis. Id. Further,
Carmack alleges after Matlock learned of his OSIG complaint,
he was no longer included in any financial "[b]usiness
of the [c]enter." Id. Indeed, instead of
relying on the CFO, Matlock allegedly sought advice from an
unnamed former employee about the budget. Id.
Carmack claims that he was essentially cut off from
communication with the Department of Planning and Budgeting.
Id. Carmack's emails to Senior Assistant
Attorney General Elizabeth Griffin were also allegedly
blocked. Id. Carmack claims that Griffin was left
with the impression that Carmack was ignoring her.
an OSIG investigator came to the SWVHEC on or about October
29, 2017 to investigate a separate OSIG complaint filed by a
former contract employee. Id. Carmack states,
somewhat unclearly, that based on questions he was asked, it
was clear that Matlock knew of his own complaint with the
OSIG. Id. On November 17, 2017, the OSIG reportedly
sent a letter to the Commonwealth's Secretary of
Education (1) stating that it had investigated a complaint
and (2) directing the SWVHEC to provide a response to its
report and to explain the "corrective action(s)" it
planned to take within 30 days. Id. The letter,
featuring the "subject line 'Hotline Case # 16077,
'" allegedly stated, verbatim, that the
OSIG had conducted "an investigation based on a
complaint to the State Fraud, Waste, and Abuse Hotline
(Hotline)" regarding the SWVHEC. Id. Upon
information and belief, Carmack asserts that Matlock knew
that the recommendations made by the OSIG were based on his
complaint. Id. at 10. Further, Carmack alleges mat
on December 4, 2017, Joyce Brooks (who was in the closed-door
meeting with Matlock described above) announced to a group of
employees in the administrative hallway mat "David
[Matlock] had taken care of the OSIG complaint. It was Duffy
[Carmack] trying to cause trouble." Id.
addition to freezing Carmack out of SWVHEC business, Matlock
allegedly took it upon himself to report the SWVHEC's
financial information at the SWVHEC Board of Directors
meeting in December 2017, instead of allowing Carmack to do
so as was the norm given his position as CFO. Id.
This same month, "in an effort to ... undermine
[Carmack's] authority and impair his ability to do his
job," Matlock scolded one of Carmack's subordinate
employees, Paula Moad, for requesting that human resources at
the University of Virginia post a position which Matlock
ultimately "gave" to the daughter of his
administrative assistance, Kathy Heitala. Id. at 10,
12. Matlock further instructed Moad not to speak with
Carmack. Id. at 10. Carmack wrote a letter (dated
December 1, 2017) to the members of the Board of
Trustees of SWVHEC informing the Board of his concerns and
the reporting process with the OSIG. Id. In this
letter, Carmack also informed the Board of the DHRM's
suggestion that the SWVHEC utilize a third-party mediator to
resolve the issues noted in Carmack's OSIG complaint.
Id. at 11. Just before the December 2017 Board
meeting started, at which time Carmack's concerns were to
be addressed, Senator Bill Carrico allegedly pulled Carmack
aside and stated, "What is your issue? This matter will
not be brought up at the meeting today! Do you
understand?," or words to that effect. Id. At
the meeting, Board member Steve Cochran made a motion for the
Board to go into "Executive Session" to discuss
Carmack's letter. Id. Under the advice of Senior
Assistant Attorney General Elizabeth Griffin and Senator
Carrico, the motion to discuss Carmack's letter was
reportedly denied. Id.
January 4, 2018, approximately five months after the OSIG
complaint was filed, Matlock terminated Carmack without a
specific allegation of misconduct. Id. at 21-22.
Matlock first denied knowing Carmack was the one who made the
OSIG complaint but then admitted knowing Carmack was the
complainant. Id. Matlock also told Carmack that the
decision to terminate Carmack was his alone. Id. at
12. Later, Matlock stated that he had discussed his decision
with the Board and the Board agreed with Matlock's
decision. Id. In later conversations with Board
members, two members told Carmack that they were unaware of
Matlock's decision to fire Carmack. Id. However,
the Board members did say they knew Carmack was the OSIG
purpose of a Rule 12(b)(6) motion to dismiss is to test the
legal sufficiency of the complaint. Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Or. 1999). To survive
a motion to dismiss, plaintiff must plead sufficient facts
"to raise a right to relief above the speculative
level" and "state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007). A complaint is
"facially plausible" when the facts alleged
"allow the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Id. This "standard is not akin to a
'probability requirement,' but it asks for more than
a sheer possibility that a defendant has acted
unlawfully." Id. In making this assessment, a
court must "draw on its judicial experience and common
sense" to determine whether the pleader has stated a
plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).
ruling on a motion to dismiss, the court must "accept
the well-pled allegations of the complaint as true" and
"construe the facts and reasonable inferences derived
therefrom in the light most favorable to the plaintiff."
Ibarra v. United States, 120 F.3d 472, 474
(4th Cir. 1997). However, the same is not true for
legal conclusions. "Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice." Iqbal, 556 U.S. at
678; see also Wag More Dogs. LLC v. Cozart, 680 F.3d
359, 365 (4th Cir. 2012) ("[T]hough we are constrained
to take the facts in the light most favorable to the
plaintiff, we need not accept legal conclusions couched as
facts or unwarranted inferences, unreasonable conclusions, or
arguments." (internal quotation marks omitted)). In
considering a motion to dismiss, the court is "generally
limited to a review of the allegations of the complaint
itself." Goines v. Valley Cmty. Servs. Bd, 822
F.3d 159, 165-66 (4th Cir. 2016). If, after accepting all
well-pleaded allegations in plaintiffs favor, it appears that
plaintiff cannot prove any set of facts in support of his
claim entitling him to relief, a motion to dismiss under Rule
12(b)(6) should be granted. Edwards, 178 F.3d at
gravamen of the defendants' averments concerning Count I
is that Carmack has again failed to sufficiently plead
causation between his complaint to the OSIG on or about July
31, 2017 and his termination as CFO of the SWVHEC on January
4, 2018. The defendants claim both that there are not enough
facts to buttress Carmack's allegation of causation and
that the five-month delay between these events indicates that
the termination was made without consideration of the
protected activity in question, namely Carmack's OSIG
complaint. The defendants further claim ...