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Carmack v. Commonwealth

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

August 29, 2019

WILLIAMS D. CARMACK, Plaintiff,
v.
COMMONWEALTH OF VIRGINIA, et al., Defendants.

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski, Chief United States District Judge.

         In this employment action, the matter presently before the court is the defendants' motion for summary judgment, ECF No. 63, filed on April 3, 2019 and brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. On June 1, 2018, plaintiff William D. Carmack filed a Complaint in the Circuit Court for the County of Washington in Abingdon, Virginia, alleging three causes of action related to his termination on January 4, 2018, as the Chief Financial Officer of the Southwest Virginia Higher Education Center ("Center"). Count I alleged a violation of Virginia's Fraud and Abuse Whistle Blower Protection Act, Va. Code § 2.2-3009, et seq. (1950) ("FAWBPA"), 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 discharge claim (Bowman claim) - against three defendants: (1) the Commonwealth of Virginia, (2) the Commonwealth of Virginia: Southwest Virginia Higher Education Center, and (3) David N. Matlock, Executive Director of the Center, in his individual and official capacities. ECF Nos. 1 & 2.

         On July 6, 2018, this case was removed to the United States District Court for the Western District of Virginia pursuant to 28 U.S.C. § 1331. ECF No. 1. The court granted the defendants' motion to dismiss, ECF No. 8, the Complaint on November 6, 2018, but provided Carmack with leave to amend pursuant to the court's order. See ECF No. 31. In his Amended Complaint, ECF No. 38, Carmack reasserted Counts I-III and added Count IV, asserting that he was retaliated against on the basis of his political affiliation in violation of the First and Fourteenth Amendments. Count IV was brought pursuant to 42 U.S.C. § 1983. The court granted the defendants' motion to dismiss, ECF No. 41, Carmack's Amended Complaint as to Count III and Count IV. See ECF No. 65. The only remaining claims in this case (Count I and Count II) are based on the same set of operative facts.

         The court held a hearing on May 16, 2019 to address this motion and other motions noticed by die parties. On May 22, 2019, the court granted Carmack's motion for sanctions, ECF No. 71, allowing him to take supplemental depositions of several witnesses, and on June 11, 2019, die court granted in part and denied in part Carmack's related motion to strike, ECF No. 89, multiple defense declarations. See ECF No. 94. The parties filed their supplemental briefs, ECF Nos. 100 & 102, in accordance with die court's May 22, 2019 order. On August 6, 2019, Carmack again moved to strike, ECF No. 103, the declaration of Michael Maul, which the court denied. This matter is now ripe for decision. The court assumes familiarity with its prior memoranda opinions, ECF Nos. 31 & 65, and orders, ECF Nos. 79 & 94 in this case.

         I.

         This employment case arises from the termination (or "layoff," as characterized by the defendants) on January 4, 2018 of plaintiff William D. Carmack from die Southwest Virginia Higher Education Center.[1] The defendants assert that the elimination of Carmack's Chief Financial Officer ("CFO") position was driven by legitimate, non-retaliatory considerations, namely perceived redundancies in the responsibilities of senior administrators, coupled with a budget reduction mandate from then-Virginia Governor Terry McAuliffe directing the Center to cut its budget by five (5) percent for fiscal years 2017 and 2018. ECF No. 64, at 1. The defendants further contend that the abolishment of the CFO position (along with two other positions) was implemented through and part of a "thorough, transparent, and meticulous" Workforce Transition Act, Va. Code Ann. § 2.2-3201 et seq, ("WTA") proposal formulated by Executive Director David N. Matlock over a fourteenth-month span and approved by multiple independent agencies, as well as the Center's Executive Committee. ECF No. 74, at 23. The defendants assert that Matlock determined that abolishing the CFO position, along with two other positions, was in the "best interests" of the Center and required to make the agency more "effective and efficient," and that Carmack's lawsuit "seeks to upend this managerial prerogative." ECF Nos. 64, at 2 & 64-1, at 16 (Matlock Decl.).

         Carmack alleges that the "ever-changing," ECF No. 100, at 1, reasons proffered for eliminating the CFO position and terminating his employment were conjured up "post-discovery" and are entirely pretextual, and that the termination was in fact motivated by "retaliatory animus [Matlock] harbored because Carmack played by the rules and called [out] Matlock on his waste and abuse of state funds," ECF No. 72 at 12. See Id. at 22 (alleging that his "firing" was retaliation for his "indicating that he would, and then following through with, holding Matlock's feet to the fire with respect to financial and compliance issues"); ECF No. 100, at 9 (implying that his firing was due to his "drawing to the forefront the policy violations and improprieties that Matlock was engaging in at the Center"). Carmack alleges that a variety of procedural and substantive inconsistences in the WTA process, as well as in Matlock's reasons for initiating it, belie the true reason for his termination, which was to "silence [his] complaints of fraud, waste, and abuse," ECF No. 72, at 24. In short, Carmack avers that, considering all the evidence, a reasonable jury could find that Matlock's story "does not hold water" and is a thin, and ultimately unconvincing, disguise for unlawful retaliation. ECF No. 100, at 1.

         A.

         The Southwest Virginia Higher Education Center was established in 1991 as an educational institution in the Commonwealth of Virginia. The core responsibilities of the Center include (1) encouraging the expansion of higher education degrees, adult and continuing education, workforce training, and professional development through partnerships with public and private institutions of higher education; (2) facilitating the delivery of teacher training programs leading to licensure and undergraduate and graduate degrees; (3) serving as a resource and referral center by maintaining and disseminating information on existing educational programs and resources; and (4) developing specific goals for higher education in southwest Virginia. See Va. Code Ann. § 23.1-3125. The Center operates "approximately 100, 000 square feet of professional classrooms, large conference areas, labs, and administrative space," and hosts "hundreds of events annually." ECF No. 72, at 2 (citing the Center's website). The Center, from its inception, contracted with the University of Virginia in Charlottesville, Virginia ("UVA") to administer and manage human resources issues for the Center. ECF No. 64-1, at 3 (Matlock Decl.); ECF No. 72-1, at 41 (Carmack Depo.). These services, among others provided by UVA, were memorialized in a formal five-year agreement in 2011. ECF No. 64-1, at 3 (Matlock Decl.). UVA discontinued providing human resources services to the Center on July 1, 2018, at which point these services were shifted to Virginia's Department of Human Resource Management.

         The Center is governed by a twenty-three-member Board of Trustees consisting of members of the Virginia General Assembly, the chief executive officers of local universities (e.g., Virginia Tech, University of Virginia, Emory and Henry College) or their designees, and citizen members appointed by the Governor of Virginia who represent southwest Virginia public education and area business and industry. See Va. Code Ann. § 23.1-3126. The Board of Trustees appoints the Executive Director, who (1) supervises and manages the Center, (2) prepares and submits, upon the direction and approval of the Board, all requests for appropriations, and (3) employs such staff as necessary to enable the Center to perform its duties. See Va. Code Ann. § 23.1-3128. The Executive Director's "major duties" also include "develop[ing] plans for long-term educational programs and financial stability," as well evaluating and terminating Center staff with the Board of Trustee's authorization. ECF No. 72-30, at 94-95 (Ex. 30).[2] Within the Board of Trustees is an Executive Committee comprised of five members of the full Board. The Executive Committee (1) "oversees the affairs of the Center between Board meetings," (2) handles "sensitive issues such as personnel matter[s] (where confidentiality is required and would be hard to ensure with a large group)," and "offers input into decisions that need a timely resolution for the efficient operation of the Center." ECF No. 64-1, at 2 (Matlock Decl.); see ECF No. 74-2, at 2 (Henry Decl.) (stating that "it is more appropriate for the Executive Director to bring sensitive and confidential [personnel] issues to the attention of the Executive Committee"). The Executive Committee also performs an annual evaluation of the Executive Director. Id.

         B.

         David Matlock was appointed Executive Director of the Center, effective November 2, 2015, ECF No. 64-1, at 1 (Matlock Decl.), following the retirement of Dr. Rachel Fowlkes, the "founding director" of the Higher Education Center concept and the original Executive Director of the Center. ECF No. 72-1, at 28-29 (Carmack Depo.). In 2009, the Southwest Virginia Higher Education Center Foundation ("Foundation") was created as a 501(c)(3) nonprofit organization to obtain research and development grants and to support the educational programs and activities of the Center. ECF No. 72-1, at 37 (Carmack Depo.). The grants, through which parties in southwest and southern Virginia can apply for funds, were provided by, among others, the Virginia "Tobacco Commission." Id. at 32-33, 37. The Foundation's grant and scholarship portfolio at one point exceeded eighteen (18) million dollars in funds. ECF No. 64-1, at 2 (Matlock Decl). Workshare agreements between the Foundation and the Center allowed for the Center to be reimbursed for time its employees worked on Foundation-related projects and activities. ECF No. 64-1, at 3 (Matlock Decl.); ECF No. 72-1, at 50 (Carmack Depo.). In 2014, Virginia's Office of the Attorney General, represented by Senior Assistant Attorney General ("SAAG") Elizabeth Griffin, requested that the Foundation be "operationally split" and "keep separate books" from the Center for legal reasons. ECF No. 72, at 3. The separation of Foundation and Center activities was apparently consistent with "best practices in state government, specifically within education agencies," ECF No. 64-48, at 2 (Rigdon Decl.).

         C.

         Carmack was hired by Dr. Fowlkes in 2012 as the Chief Financial Officer of the Center. In 2014, reportedly at the request of SAAG Griffin, Carmack also served as the Chief Executive Officer ("CEO") of the Foundation.[3] ECF No. 64-52, at 3-4 (Carmack Depo.). While the percentage varied from year to year, the Foundation reimbursed the Center for approximately fifteen (15) to twenty-five (25) percent of Carmack's salary. ECF No. 72-1, at 50-51 (Carmack Depo.). In addition to Foundation reimbursements, Carmack's salary included non-general funds (i.e., funds raised by the Center through its various fundraising initiatives and lease agreements) and general funds provided directly by the Commonwealth of Virginia to the Center. ECF No. 72-7, at 79. Carmack's duties as CFO included, inter alia, (1) securing tenants involved in the research, manufacture, and development of "Clean Fuel Energy" products and systems for the "Energy Center, "[4] ECF No. 64-1, at 3 (Matlock Decl.); ECF No. 72-1, at 209 (Carmack Depo.), (2) securing research and development grants to develop growth-oriented, investment-worthy technology companies in rural southwestern and southern Virginia, ECF No. 64-1, at 3 (Matlock Decl.), (3) negotiating new programs coming into the Center, ECF No. 72-1, at 209 (Carmack Depo.), and (4) overseeing the Center's financial affairs. Carmack also indicated that he "was very active in the academic world throughout the [s]tate in trying to recruit different programs and was very successful for laying the groundwork, of which Mr. Matlock reaped the fruit...." ECF No. 72-1, at 209 (Carmack Depo.).

         In January 2015, Dr. Fowlkes announced to the Board of Trustees that she would be retiring from the Center effective on June 30, 2015. ECF No. 72-1, at 70 (Carmack Depo.). In the spring of 2015, a job description was listed for her position and a national search soliciting applications from Virginia and beyond was conducted by the Center. Id. The Center received roughly forty (40) applications for the Executive Director position, including applications from defendant David Matlock and plaintiff William Carmack. Id. at 71. Carmack served as Interim Executive Director while this search and selection process was underway from approximately July 1, 2015 to October 15, 2015. Id. at 78, 104. Carmack claims that he was Dr. Fowlkes' "pick" to be her successor as Executive Director, but that Matlock was selected (by majority vote of the Board of Trustees as procedurally required) over him due to the "substantial influence," ECF No. 38, at 3 (Am. Compl.), of Virginia State Senator Charles William Carrico., ECF No. 72-1, at 71-74, 77, 94-97, 99 (Carmack Depo.).

         D.

         The defendants assert that the process which ultimately led to the elimination of Carmack's position began on August 26, 2016, when Matlock received a memorandum via email from Paul Reagan, Chief of Staff for then-Governor Terry McAuliffe, requesting that all agencies, "excluding Institutions of Higher Education," submit a budget reduction plan for fiscal year 2017. ECF No. 64-2, at 2-4 (Ex. 1); see. ECF No. 64-1 (Matlock Decl.); see also ECF No. 72-7, at 108-09 (Matlock Depo.). The memorandum instructed agency heads to "prepare savings strategies for FY 2017 equal to five (5) percent of your agency's adjusted legislative general fund appropriation." ECF No. 64-2 at 2 (Ex. 1). The memorandum further stated that "it is important that the majority of your reduction strategies emphasize recurring savings rather than one-time savings." Id. On September 27, 2016, Matlock received a second memorandum via email from the Governor's office providing additional guidance with respect to budget savings plans. ECF No. 64-3, at 2-4 (Ex. 2). The second memorandum indicated mat agencies "should plan for the five percent savings required in FY 2017 to continue into FY 2018," and reaffirmed that "saving strategies for FY 2018 should provide ongoing savings in future fiscal years in order to maintain structural balance." Id. at 3. Matlock stated that it was this second, "reminder" memorandum that "frightened" him and "made [him] realize that pie] needed to look for a more long-term [budgetary] solution." ECF No. 72-7, at 108-09 (Matlock Depo.); ECF No. 100-1, at 8, 16-17 (Matlock 2d Depo.). Matlock noted that the impact of the first email on his decision to commence the WTA process and eliminate the CFO was "very small." ECF No. 100-1, at 8 (Matlock 2d Depo.).

         Matlock asserts that upon receipt of Governor McAuliffe's budget reduction mandate, he asked Carmack whether it applied to the Center given that it expressly exempted "Institutions of Higher Education." Id. at 21. Carmack reportedly "pointed out" that the Center did not qualify for the exemption. Id. Matlock claims to have reached out to Adam Henken, as well as Michael Maul, Associate Director of the Education and Transportation Division, from Virginia's Department of Planning and Budget ("DPB") to further discuss the applicability of the mandate to the Center. Id. at 20.[5] Matlock states that his intent during his call with Henken and Maul was to "plead" that the Center was exempt from the mandate as an institution of higher education. Id. Henken and Maul reportedly confirmed that per the Code of Virginia, the Center was not a qualifying institution of higher education and therefore must comply with the mandate. Id. at 20-21.

         Meanwhile, Carmack appears to have drafted and submitted budget savings plans on behalf of the Center for fiscal year 2017 on September 20, 2016, and a similar plan for fiscal year 2018 on November 7, 2016, as requested in the two memoranda. ECF No. 102-6, at 1-2 (Maul 2d Decl.). Matlock acknowledged that he approved Carmack's fiscal year 2017 budget savings submission and that the 2017 submission satisfied the five (5) percent budget reduction "in principle," see ECF No. 100-1, at 9, 29 (Matlock 2d Depo.). Matlock, however, did not appear to specifically recollect reviewing or approving a similar submission for fiscal year 2018, Id. at 18-19. Maul confirmed that neither the 2017 nor the 2018 submission indicated that the WTA was going to be used to layoff existing employees, and that generally speaking, "[o]nce a budget submission has been approved by the General Assembly, it is anticipated [that] an agency will adhere to that budget." ECF No. 102-6, at 2 (Maul 2d Decl).

         Matlock, apparently dissatisfied with the original submissions and of the opinion that the Center "needed to look for a more long-term solution," met with Maul in February 2017 and specifically mentioned the budget savings plans that had already been submitted in response to the memoranda. Id.; see ECF No. 100-1, at 21-22 (Matlock 2d Depo.) (expressing skepticism that Carmack's submission, which proposed eliminating the marketing position, "would be the most strategic answer when you've got declining revenue and your center is struggling"); Id. at 23 ("It's not unusual in the middle of a fiscal year to get a surprise where they'll say we want another five percent or ten percent reduction.").[6] Maul stated in his second declaration that Matlock approached him to discuss the WTA as an alternative means of responding to the mandate and specifically asked if he could use die WTA even though the Virginia General Assembly had already approved the 2017 and 2018 submissions. ECF No. 102-6, at 2 (Maul 2d Decl.); see ECF No. 64-47, at 1-2 (Maul Decl). Maul informed Matlock mat as Executive Director, "he had the flexibility to administer the budget reduction in the way that he saw fit because the General Assembly had not specifically directed how the Center was to implement the reductions to the budget." ECF No. 102-6, at 2 (Maul 2d Decl).

         Matlock indicated that following these preliminary inquiries, he began to research long-term budget savings options. ECF No. 72-7, at 86, 92 (Matlock Depo.). Matlock purportedly concluded that using general funds to cover the budget reductions would not be a viable long-term strategy because the mandate stressed recurring savings strategies for multiple fiscal years. ECF No. 64-1, at 4 (Matlock Decl.). Matlock further concluded that reorganization of the Center was the most appropriate and sustainable long-term option given what he observed to be significant overlap in responsibilities between senior administrators. Id. His proposed reorganization, ostensibly designed to expand the Center's program and to enable "significant savings," see ECF No. 64-1, at 15-16 (Matlock Decl.), included the elimination of several positions. With respect to the CFO position, Matlock stated that when he began at the Center, "[t]wo things I noticed about Carmack was his dependence on Business Manager, Deborah Hensley, and the amount of time he was spending doing work for the Foundation." ECF No. 64-1, at 3 (Matlock Decl.). Matlock indicated that when he asked Carmack for financial data for the Center, Carmack would often ask Hensley to prepare the data for him.[7] Id. Matlock also claims that Carmack appeared to be spending significantly more time performing work for the Foundation than his workshare agreement allowed. Id.

         Matlock ultimately decided to implement a workforce reorganization using the Workforce Transition Act, Va. Code Ann. § 2.2-3201 et seq., a process he claimed to be familiar with from his time at Virginia Highlands Community College ("VHCC"), where the WTA was used on multiple occasions.[8] Id. at 5. To determine whether the WTA could be used at the Center, Matlock contacted Christine Fields, the Vice President of Finance at the VHCC (and former Director of Finance and Legislative Affairs at the Center), to discuss the WTA process. Id. On or about October 28, 2016, Matlock also called Donna Kauffman, the UVA Human Resource Specialist assigned to the Center, to discuss a possible WTA plan. Id. Matlock claims that during this conversation, he stated that Joyce Brooks, William Carmack, and Douglas Viers may be potential candidates in his WTA proposal. Id. On November 4, 2016, Matlock asked Kauffman to provide the "WTA cost" for eliminating Brooks' position. Id.; see ECF No. 64-4, at 2 (Ex. 3) (containing email with retirement/severance cost estimate for Brooks and another email indicating that the Center "will not be filling her job due to state budget cuts . . . [h]er job duties will be absorbed into other employee's responsibilities"). On November 9, 2016, Matlock received an email, ECF No. 64-5, at 2 (Ex. 4), from Kauffman with the WTA cost for eliminating the positions held by Carmack and Viers. Id. Upon receipt of these estimates, Matlock exchanged emails, ECF No. 64-6, at 2 (Ex. 5), with Kauffman regarding, among other things, Carmack's eligibility for WTA retirement benefits. Id. Kauffman advised Matlock not to inform any of the individuals whose positions were being considered for elimination until further details were "fleshed out." ECF No. 64-1, at 6 (Matlock Decl.).

         On or around January 16, 2017, Matlock had another conversation with Fields to review the WTA process and to get a clearer understanding of the necessary steps. Id. Fields explained that Matlock needed approval from the DPB before moving forward. Id. Fields further explained that with DPB approval, the Virginia Retirement System ("VRS") would likely absorb the retirement/severance costs related to the WTA process such that they would not be incurred by the Center. Id. On January 26, 2017, Matlock met with Kauffman and Michelle Small of UVA to discuss die steps necessary to move forward with and submit a WTA request. Id. at 7. In an email, ECF No. 64-7, at 2 (Ex. 6), to Kauffman prior to the meeting, Matlock indicated that the positions of Janet Williams and Patricia Ball should also be considered for elimination under the WTA. Id. That same day, following the meeting with Kauffman and Small, Matlock received an email, ECF No. 64-8, at 2 (Ex. 7), from Kauffman with WTA estimates for Ball, Viers, Brooks, and Carmack. Id. Kauffman also forwarded to Matlock a WTA exemption letter[9] template, ECF No. 64-9, at 2 (Ex. 8), from Deborah Rigdon of the Virginia's Department of Human Resource Management ("DHRM").[10] Id.

         On February 2, 2017, Matlock met with Henken and Maul from the DPB to discuss his intention to move forward with his WTA plan at the Center. Id; see ECF No. 64-10, at 2 (Ex. 9); ECF No. 64-47, at 2-4 (Maul Decl.). Matlock claims that Maul reviewed the WTA steps with Matlock and stressed the importance of seeking DPB and DHRM approval at the beginning of the process so that the VRS would cover the cost of implementing the WTA. ECF No. 64-1, at 7 (Matlock Decl.). Maul indicated that during this meeting, Matlock discussed eliminating the CFO position. ECF No. 64-47, at 2-4 (Maul Decl.). On February 3, 2017, Matlock received an email, ECF No. 64-11, at 2 (Ex. 11), from Kauffman with the updated WTA estimates for Brooks, Viers, Williams, Ball, and Carmack. ECF No 64-1, at 7 (Matlock Decl.). On February 15, 2017, Matlock claims to have had a lengthy conversation with Dr. Fowlkes, during which she purportedly agreed that the Center could be more efficient and that moving forward with a WTA proposal would address the ongoing savings mandate from Governor McAuliffe. Id.

         Following these initial email exchanges and meetings related to the WTA, Matlock claims to have taken "time to observe all departmental daily operations and [to] conduct a thorough evaluation of productivity, departmental budgets, stewardship, and program development and support." ECF No 64-1, at 8 (Matlock Decl). Matlock also claims to have consulted with senior members of the Center's leadership team, Center partners, and members of the Center's Board of Trustees to discuss effectiveness, efficiency, and long-term sustainability. Id. Further, Matlock shared his WTA proposal plan with SAAG Griffin, who was assigned to die Center as lead counsel. Id. Following this observation period (March and April 2017), Matlock ultimately decided that die WTA proposal could not include Viers or Ball because he "could not sustainably shift their responsibilities to other Center employees."[11] Id.

         On May 1, 2017, Matlock asked Brooks, ECF No. 64-13, at 2 (Ex. 12), to arrange a conference call with Kauffman to further discuss the WTA proposal. ECF No 64-1, at 9 (Matlock Decl). On May 2, 2017, Matlock directed Adam Tolbert, see ECF No. 64-14 (Ex 13), who worked as an Information Technology ("IT") specialist at the Center, to email Kauffman and provide her with a link to relevant portions of the Code of Virginia and state policy that explained the steps necessary for an agency to be exempt from bearing retirement/severance costs associated with workforce reductions under the WTA. ECF No 64-1, at 10 (Matlock Decl). On May 22, 2017, Matlock received two emails, ECF No. 64-15, at 2-3 (Ex. 14), from Kauffman informing him that Susan Harris, Interim UVA Human Resources Benefits Supervisor, would be assisting with the WTA paperwork along with the WTA waiver template. Id. On May 25, 2015, Matlock called Fields at VHCC and asked if she could share a copy of the cover letter used by the VHCC when requesting WTA approval. Id. Shortly thereafter, Fields sent two emails containing copies of documents used by the VHCC during the implementation of its own WTA proposals, see ECF No. 64-16 (Ex. 15); ECF No. 64-17, at 3 (Ex. 16).

         On June 30, 2017, Matlock met with the Executive Committee to conduct his annual review and discuss his WTA proposal. ECF No. 64-1, at 10 (Matlock Decl.). Matlock informed die Executive Committee that Carmack was included in the WTA proposal and that the Center did not require a CFO position as it had operated without one for fifteen (15) years prior to Carmack's arrival. Id. Donna Henry, a member of the Executive Committee present during the June 30, 2017 meeting, stated that Matlock "stressed that the responsibilities of the CFO position overlapped significantly with the responsibilities of other, lesser-paid, employees of the Center" and that his reason for eliminating the three positions was to "reduce spending and create more room in the budget for necessary structural repairs at the Center." ECF No. 74-2, at 2 (Henry Decl.). Matlock also apparently indicated that "he could perform the higher-level responsibilities of the CFO position." Id. Matlock received the imprimatur of the Executive Committee[12] to move forward with the implementation of the WTA proposal. Id.; see ECF No. 64-18, at 2 (Ex. 17) (containing meeting minutes indicating that the Executive Committee approved unspecified "employment actions that were discussed during closed session"). Matlock subsequently stayed in communication with his contacts at UVA to keep diem apprised of die status of the proposal and provide diem with documents justifying die personnel actions he intended to take. See ECF No. 64-20 (Ex. 19) (email dated September 28, 2017 to Kauffman containing draft WTA proposal); ECF No 64-21 (Ex. 20) (email exchange dated October 23-24, 2017 with Carol Summers from UVA concerning WTA).

         On November 13, 2017, Matlock emailed the Center's WTA proposal (as reflected in die final exemption request), ECF No. 64-22 (Ex. 21), to Sara Wilson, Director of DHRM, and Dan Timberlake, Director of DPB. ECF 64-1, at 11 (Matlock Decl.). The proposal included Matlock's workforce reorganization plan, justifications for die elimination of three positions occupied by Joyce Brooks (Program Administration Manager I, or Director of Operations), Janet Williams (Public Relations and Marketing Specialist II, or Conference Services Specialist), and William Carmack (Financial Services Manager II, or Chief Financial Officer), and die expected savings which would accrue from implementation of the plan. ECF No. 64-22 (Ex. 21), at 2-5. The proposal explained that "[d]ue to budgetary shortfalls in the Commonwealth, die [Center] had experienced budgetary reductions of $108, 058.00 (5%) for 2017-2018." Id. The proposal goes on to explain that these mandated reductions over two budget cycles, "coupled with certain organizational changes that are vital," led die Center to consider "where there were positions and/or duties that either could be or needed to be eliminated or reassigned," and that after "thorough evaluation, and in consultation with senior members of the leadership team and die Executive Committee," die elimination of die aforementioned positions was deemed "necessary to remain responsive to regional needs and required fiscal accountability." Id. at 4.

         With respect to the elimination of the CFO position, the proposal stated that "Financial Services Manager II [CFO] role was created in 2012 to do work that is no longer needed." ]d More specifically, the proposal states that the CFO position was created (1) to develop the Energy Center and secure tenants involved in the research, manufacture, and/or development of "Clean Fuel Energy," as well as (2) to secure research and development grants to develop early-stage, growth-oriented companies to rural southwestern and southern Virginia. Id. The proposal notes that because a long-term tenant was secured for the Energy Center in March 2017, and considering the declining portfolio of research grants (the remainder of which are managed by the Foundation, not the Center)[13], the CFO is no longer required to perform those duties. Moreover, because "the General Administration Manager I position [held by Hensley] oversees the majority of the business operations of the center," the Center "determined that the day-to-day operations can be managed by a Financial Services Manager I position, "[14] which would enhance efficiencies. Id., The proposal states that abolishing the CFO position and redistributing the CFO's remaining responsibilities to a lower administrative position would result in net yearly savings of $154, 276. Id. The reorganization plan also proposed the (1) creation of a part-time grant writer position (at a cost of $41, 355) that would focus on securing funds for the development of educational programs and services and (2) filling a marketing director position which "has been frozen for the past three years." Id. at 5. The proposal concludes by noting that the net savings to the budget from the foregoing workforce actions would be $108, 058, i.e., equal to the five (5) percent budget mandate. Id.

         On November 21, 2017, the DPB preliminarily approved Matlock's WTA exemption request after reviewing it and finding that it was an appropriate response to Governor McAuliffe's budget reduction mandate. ECF No. 64-47, at 2 (Maul Decl.).[15] Maul stated that "[b]ecause the Center had been mandated by the General Assembly and Governor of Virginia to enact budget reductions for fiscal years 2017 and 2018, we were satisfied that Matlock's WTA proposal was proper." Id. at 2. DPB Director, Dan Timberlake, provided Matlock with a signed letter approving the WTA exemption request if the director of DHRM also approved the proposal. See ECF No. 64-47, at 12 (containing letter from Timberlake to Matlock stating that "[t]he positions in question meet the criteria of Item 475, paragraph M.1. of Chapter 836, 2017 Acts of Assembly; specifically, these separations are a result of budget reductions enacted in die Appropriations Act."). On November 22, 2017, Matlock received an email from Deborah Rigdon of DHRM, who replaced Kauffman in overseeing the Center's WTA process. Rigdon's email sought additional information about Matlock's proposal and offered assistance in its later implementation. ECF No. 64-23 (Ex. 22). Matlock and Rigdon spoke over the telephone the same day to review the proposal and the steps Matlock needed to take to receive die approval of DHRM. ECF No. 64-1, at 12 (Matlock Decl.). On November 27, 2017, Matlock forwarded to Rigdon the timeline for die WTA process and other documentation she requested. ECF No. 64-1, at 12 (Matlock Decl); ECF No. 64-24, at 2 (Ex. 23). Matlock claims that Rigdon requested job descriptions for Carmack and Hensley and the minutes from the June 30, 2017 Executive Committee meeting, but at no point shared with him why she wanted this information other than it being part of DHRM's standard review of WTA proposals. ECF No. 64-1, at 12 (Matlock Decl.).

         Rigdon explained that because she was aware by this point that Carmack had filed a formal complaint against Matlock, she wanted to "make sure Matlock had provided sufficient justification to support the abolishment of Carmack's position." ECF No. 64-48, at 2 (Rigdon Decl). Rigdon explained that her "main purpose was to ensure that the WTA process complied with state policy and protected the rights of the individuals affected by the WTA plan." Id. To that end, Rigdon requested the June 30, 2017 Executive Committee meeting minutes and timeline of events to "confirm that the decision to abolish Carmack's position occurred prior to any complaint Carmack had made." Id. Rigdon also requested and compared Hensley's employee work profile to Carmack's profile. Id. Rigdon stated that she did not inform Matlock that Carmack had complained about him or otherwise elaborate upon why she requested these documents. Id. Following her review of the requested materials, Rigdon concluded that "Matlock was justified in eliminating the CFO position" and that this action "made sense in the long run." Id. at 2-3. Specifically, she agreed with Matlock's conclusion that Hensley could absorb more of Carmack's duties, "which would create substantial savings because her salary was a fraction of Carmack's salary." Id. at 3. On December 8, 2017, Rigdon forwarded Matlock edits to the WTA proposal and restructuring analysis, see ECF No. 64-25, at 2-4 (Ex. 24), and on December 18, 2017, forwarded severance benefit calculations for Carmack, Brooks, and Williams, see ECF No. 64-26, at 2-5 (Ex. 25).

         On December 21, 2017, Matlock received an email from SAAG Griffin that contained correspondence with UVA counsel regarding the WTA process. ECF No. 64-27, at 2-5 (Ex. 26). In this email, associate university counsel for UVA discussed the presence of a police officer from VHCC to provide security on the date that Brooks, Williams, and Carmack were officially informed of the elimination of their positions. Id. On January 3, 2017, Matlock emailed Rigdon, Griffin, Kauffman, and Summers final documents related to the implementation of the WTA proposal, including a layoff notification letter for each impacted employee, documents related to severance benefits, and suggested talking points during the layoff meetings, for their review and suggestions. ECF No. 64-28, at 2-5 (Ex. 27). That same day, Rigdon informed Matlock of her approval of the WTA plan and confirmed that it conformed with state policy and the Code of Virginia. ECF No. 64-48, at (Rigdon Decl).

         On January 4, 2018, Matlock called Carmack into a conference room and informed him that his position was being eliminated. ECF No. 64-1, at 14 (Matlock Decl.). Matlock provided a letter to Carmack explaining that "in order to remain efficient and effective, and due to budgetary reductions and necessary restructuring decisions, your position . . . will be abolished at the close of business on January 19, 2018." ECF No. 64-34, at 2 (Ex. 33). Matlock also provided Carmack with documents, see ECF No. 64-34 (Ex. 33), explaining the benefits he was entitled to under the WTA. ECF No. 64-1, at 14 (Matlock Decl). Brooks and Williams were similarly informed that their positions were being eliminated. Brooks, Williams, and Carmack were all escorted out of the Center by a VHCC police officer. ECF No. 64-1, at 15 (Matlock Decl.). On January 19, 2018, Matlock forwarded additional documents to Carmack, one of which enabled him to receive preferential hiring for any position within a state agency that is in the same role as his former position and for which he is minimally qualified. ECF No. 64-1, at 15 (Ex. 35). Matlock also informed the Board of Trustees via email, ECF No. 64-39, at 2 (Ex. 37), of the implementation of the WTA proposal. The email stated that "[d]ue to budgetary shortfalls in the Commonwealth, the [Center] has experienced budgetary reductions of $108, 058.00 (5%) for 2016-2017 and $108, 058.00 (5%) for 2017-2018." Id. The email further stated that in response to these mandated reductions over two budget cycles, Matlock concluded that "restructuring was necessary to become more responsive to the region's workforce, creating a greater return on investment for the Commonwealth and die citizens of SW Virginia." Id. at 2. On June 12, 2018, Matlock received final approval from DHRM of its WTA exemption request, which exempted the Center from incurring costs for any enhanced retirement/severance benefits under the WTA, see ECF No. 64-41 (Ex. 39).

         E.

         Carmack indicated that shortly after Matlock took over as Executive Director of the Center in November 2015, "pie] was excluded immediately from meetings with what [he] call[ed] [Matlock's] disciples, and that's defined by Ms. [Kathy] Heitala, Mr. [Jeff] Webb, Mr. [Adam] Tolbert, and Ms. [Joyce] Brooks." ECF No. 72-1, at 120 (Carmack Depo.). Carmack indicated that when Matlock first started visiting the Center in October 2015, "[e]veryone went in his office and closed the door except me. I was not invited." Li at 11; see also ECF No. 72-30 ("From his first day on die job Mr. Matlock has disregarded the CFO" and other members of the Finance Department.). Carmack further stated "... I felt very much on the outside from, upon his arrival. . . [a]nd as he continued to work there that relationship only grew more estranged." ECF No. 64-52, at 29 (Carmack Depo.). In November or December 2015, Carmack asked Matlock for a pay increase for temporarily filling in as Interim Executive Director. Matlock refused, apparently stating that he thought Carmack was already overpaid in comparison to other department directors. ECF No. 72-1, at 89 (Carmack Depo.).

         When asked whether he and Matlock had a "positive, constructive relationship," Carmack replied, "I never felt like we had a good relationship." ECF No. 64-52, at 29 (Carmack Depo.). In November 2015, Carmack stated that he met with Matlock, and "reminded him that [he] operated by the rules, [he] was the kind of guy that didn't deviate from [the rules], and that we were very careful to operate the Center according to - it's called CAPPs [Commonwealth Accounting Policies and Procedures]," which set forth the Commonwealth's accounting and audit guidelines. ECF No. 72-1, at 112-13 (Carmack Depo.). In response to this statement, Matlock allegedly told Carmack a story about "needling," which Matlock explained was when a mother bird puts sharp objects pointing upwards in its nest to encourage young birds to leave the nest. Id. Matlock allegedly stated that this "was the method [he] used to get people off the team that he did not want." Id. Carmack "took [this story]. . . as a pretty clear message that he didn't care for me being a part of his team based on the fact that I had been excluded to date from any conversation pertaining to the business of the Center or the finances of the Center." Id.

         In January 2016, Carmack stated that he and Hensley met with Matlock two or three times to discuss the budget for the next fiscal year, but Matlock appeared "very disinterested" in what they had to say. ECF No. 72-1, at 122 (Carmack Depo.). Matlock purportedly stated that he would contact Christine Fields, who oversaw the Center's finances prior to Carmack's tenure at the Center but who worked at the time at VHCC. Id. Carmack perceived Matlock's conduct as indicating either that Matlock had "no confidence" in him or "no interest" in anything he or Hensley had to say regarding the budget. Id. Carmack contends that although he tried to support Matlock as Executive Director, "I finally arrived at the idea [that] he had an agenda to rid [sic] my employment from the third month he was there." ECF No. 64-52, at 44 (Carmack Depo.).

         F.

         In addition to a fraught and unconstructive working relationship, which the record suggests was manifest from the outset of Matlock's tenure as Executive Director, Carmack claims that not long after Matlock's appointment, he observed that policies and procedures related to hiring, accounts payable, accounts receivable, etc., were not being followed. ECF No. 72-1, at 121-22 (Carmack Depo.). Carmack alleges that he made numerous "internal warnings and complaints" to Matlock related to a variety of "policy and procedure violations," ECF No. 72, at 4, and/or "infractions," ECF No. 72-1, at 130 (Carmack Depo.). Cf. ECF No. 72-1, at 126 (Carmack Depo.) ("We would make ... make comments to him or reminders [to] him of, this need[s] to be done or signed by a certain date, to try to help him along."). These alleged violations included, inter alia. Matlock's: (1) submitting an invoice for payment of $1, 250 to reimburse a middle school where Matlock's son, Jason Matlock, was die principal for student travel to a robotics competition at James Madison University, (2) allowing for die approval of overtime for a husband and wife computer team (the Tates) whom Carmack suspected of collecting overtime in a fraudulent manner, (3) failing to submit invoices (e.g., travel invoices) in a timely fashion, (4) hiring a personal friend, Joe Mitchell, as a maintenance supervisor without going through the interview process, (5) failing to account for monies received during various fundraisers, (6) allowing a large piece of art to go missing, and (7) granting Tolbert access to human resource systems and confidential employee information (e.g., salaries and evaluations) without proper clearance.[16] See ECF No. 38, at 4-8 (Am. Compl.); ECF No. 72, at 5-7.

         Carmack explained that after consistently complaining to Matlock about what he characterized as suspected fraud, waste, and abuse to little effect, and with the "frequency and severity of Matlock's improprieties ... increasing," ECF No. 72, at 7, he decided to arrange a meeting with the Ombudsman at UVA. Carmack stated that although he initially thought that Matlock was "new" and would "figure it out," Matlock's consistent refusal to take corrective action led him to fear that if he failed to report the alleged violations, his own nonfeasance would be viewed as malfeasance. ECF No. 65-52, at 34 (Carmack Depo.). Carmack indicated, however, that "[i]t wasn't until the end of [2016] that I felt like, this is severe enough that... I could lose my job by not calling attention to it-----" ECF No. 64-52, at 36 (Carmack Depo.). On February 8, 2017, Carmack finally met with Ombudsman of UVA, Brad Holland, to discuss his concerns about suspected wrongdoing at the Center. ECF No. 72, at 7. Holland subsequently arranged a meeting between Carmack and various individuals at DHRM in Richmond, Virginia, including Deborah Rigdon. Carmack was ultimately advised by the acting director of DHRM that he should take his concerns to the Commonwealth's Office of State Inspector General ("OSIG"). Carmack attempted to file a formal complaint via Virginia's Fraud, Waste, and Abuse Hotline ("Hotline") in June 2017, but was asked to refile in July 2017. ECF No. 72-1, at 133 (Carmack Depo.). Carmack also spoke with the Office of the Secretary of Higher Education about the matter.

         The Hotline complaint was assigned to State Hotline Manager Tim Sadler. ECF No. 64-42 (Ex. 40). The document Carmack ultimately sent to the OSIG contained a variety of allegations ranging from accusations of mismanagement and bullying to pre-selection of employees in violation of state policy and misuse of state resources. See ECF No. 72-30, at 10-16 (Ex. 30). In one instance, Carmack complains that "[m]orale is extremely poor," with Center staff "split into small groups of angry employees," resulting in the "quality of work .. . declin[ing] daily." Id. at 14. Carmack stated that his intent in filing the complaint was "to bring the issue of poor leadership and lack of integrity demonstrated from Mr. Matlock to the attention of the Commonwealth of Virginia" and warned that "[w]ithout intervention, the integrity and success of the [Center] will continue to lurch even further out of control." Id. at 16. The complaint, as supplemented in a letter with supporting documentation sent to OSIG investigator Shaun Cowardin on July 31, 2017, contained sixteen (16) items, see ECF No. 72-30, at 10-16, only six (6) of which the OSIG ultimately determined warranted further investigation by the OSIG. See ECF No. 72-1, at 137; ECF No. 66-44; ECF No. 64-49, at 1 (Sadler Decl.).[17]

         The six (6) allegations the OSIG investigated are described below as they were characterized in the OSIG's report: (1) Tolbert, an IT professional at the Center, has inappropriate and unnecessary access to human resource systems; (2) two wage employees [the Tates] waste state funds performing programming and maintenance for a system that handles scholarships and loan funds; (3) Mr. Matlock inappropriately authorized grant funding for a robotics program at a school where his son was the principal, but not at other regional schools; (4) Matlock does not submit travel reimbursement requests in a timely manner; (5) Matlock does not record his time at work in the Center's time clock system as required by policy; and (6) Matlock approved sole sourcing a purchase after the purchase was made. ECF No. 64-44, at 1-6 (Ex. 42). Carmack informed Cowardin that the complaint need not remain anonymous because Matlock would know who made the complaint given that Carmack had been complaining to Matlock directly about these same issues. ECF No. 72-27, at 1 (Ex. 27). The OSIG agreed, as a courtesy, to notify Carmack before OSIG investigators spoke to Matlock. ECF No. 72-29, at 1 (Carmack Decl.).

         On October 16, 2017, Sadler called Matlock and explained that someone had filed a Hotline complaint against him and that the Hotline provides a confidential method for state employees to report suspected fraud, waste, or abuse in state agencies. ECF No. 64-1, at 17 (Matlock Decl.). Sadler did not identify Carmack as the complainant. ECF No. 64-49, at 2 (Sadler Decl.). Matlock informed Sadler that he had initiated a process under the WTA "due to mandatory budget cuts," id S£e ECF No. 64-1, at 17 (Matlock Decl.). Matlock stated that certain staff, including Carmack, would be laid off as part of a reorganization intended to make the Center more efficient. ECF No. 64-49, at 2 (Sadler Decl.). Matlock then reviewed the steps he had taken during the WTA proposal and the timing of each step. ECF No. 64-1, at 17 (Matlock Decl.); ECF No. 64-49, at 2 (Sadler Decl.). Sadler reportedly told Matlock that die WTA process could continue if Matlock had documentation showing that he began the process prior to his knowledge of the anonymous caller's complaint. ECF No. 64-1, at 17 (Matlock Decl). Sadler did not include Matlock's WTA process as part of his investigation. ECF No. 64-49, at 2 (Sadler Decl.).

         Shortly after the conversation with Sadler on October 16, 2017, Carmack stated that Matlock called Heitala, Webb, Brooks, and Tolbert into his office and "slammed his door." ECF No. 72-39, at 1 (Carmack Decl.); see ECF No. 72-7, at 169 (Matlock Depo.) (indicating that Matlock "had suspicions the day that the inspector called [him]" that Carmack was the complainant). On November 8, 2017, Matlock received an email from Sadler stating that he had completed his investigation. ECF No. 64-63, at 2 (Ex. 41). The OSIG review covered a period from January 2016 to September 2017. The OSIG's report, which was sent to the Commonwealth's Secretary of Education on November 17, 2017, contained "Findings of Fact" as to each of the six (6) allegations noted above. The OSIG found allegations (2), (3), and (5) "unsubstantiated," allegations (1) and (4) "partially substantiated," and allegation (6) "substantiated." ECF No. 64-44, at 1-6 (Ex. 42).

         The OSIG reached the following conclusions and recommended the following corrective actions with respect to allegations (1), (4) and (6). Vis-a-vis allegation (1), the OSIG reviewed Tolbert's position description and found that it did not identify any need for access to human resources systems. ECF No. 64-44, at 3 (Ex. 42). The OSIG recommended that if Tolbert was to continue to have access to these systems, his position description should be updated to reflect those responsibilities.[18] Id. at 3. With respect to allegation (4), the OSIG found that Matlock submitted travel reimbursements late and recommended he consider having administrative staff prepare his reimbursement requests for his signature within thirty (30) working days after his travel rather than preparing the requests himself. Id. at 4. Lastly, as to allegation (6), while the OSIG concluded that although Matlock's sole source justification "makes sense based on the service performed," Matlock "should ensure that future sole source justifications are approved prior to service performance." Id. at 6. The OSIG requested a response to its recommendations from the Commonwealth's Secretary of Education within thirty (30) days. Id.

         G.

         In addition to filing a formal complaint with the OSIG in July 2017, on December 7, 2017, Carmack wrote a letter to the Center's Board of Trustees stating that he believed the "Center has been failing to effectively and properly achieve our mission as we have done in the past...." ECF No. 72-18, at 1 (Ex. 18); ECF No. 72-1, at 224-25 (Carmack Depo.). The letter never refers to Matlock by name or specifically criticizes any of his conduct, but does request that the Center enlist a third-party methator "to correct deficiencies that are preventing our Center from fully serving our important mission in this community." ECF No. 72-18, at 1-2 (Ex. 18). Carmack explained that the methator should interview employees and report back to the Board "so that some constructive way could be devised for [Matlock] to be successful in the job." ECF No. 72-1, at 226 (Carmack Depo.). Carmack also requested that the Board of Trustees appoint a "six-member, bipartisan" committee to work with the methators. ECF No. 72-18, at 2 (Ex. 18). On December 14, 2017, Carmack alleges that Board member Steve Cochran tried to persuade the Board to go into Executive Session to discuss Carmack's December 7, 2017 letter, but was unsuccessful." ECF No. 72-1, at 226-28 (Carmack Depo.). Carmack also alleges that after becoming aware of his OSIG complaint in October 2017, Matlock stopped meeting with him on a weekly basis and engaged in other conduct Carmack claims evinced retaliatory animus. ECF No. 72-39, at 2 (Carmack Decl.); see ECF No. 65, at 15-16 (summarizing alleged retaliatory acts).

         On January 4, 2018, Carmack was notified that his position was being abolished. Carmack notes that the day of his termination, Matlock "detained [die staff] in [a] room for an hour and a half to two hours," ECF No. 72-2, at 22 (Young Depo.), and escorted him off the premises with an "armed guard," ECF No. 72, at 9. Carmack also noted that following his termination, "Board members reached out in outrage." See, e.g., ECF No. 72-37, at 1 (Ex. 37) (email to Matlock from Joshua Ely stating, "is there any other area that could be cut without having folks lose their jobs .... Is this our absolutely only way forward"); Id. at 4 (email to Matlock from Cheryl Carrico stating "I do have concerns. Each meeting I have attended and at points in-between you report die finances as being good .... You also reported being understaffed by positions at the last two board meetings. The $108, 058 mentioned below is less than die total salaries will be - likely much less when benefits are included so die number of people and positions is odd to me."). On June 1, 2018, Carmack filed a Complaint in die Circuit Court for the County of Washington in Abingdon, Virginia. On July 6, 2018, this case was removed to the United States District Court for the Western District of Virginia pursuant to 28 U.S.C. § 1331.

         H.

         In their motion for summary judgment, the defendants assert that the critical deficiency with Carmack's claims in Count I and Count II is that "he cannot dispute that his layoff was the result of a year-long analysis into how the Center should be reorganized to meet a budget reduction mandated by Governor McAuliffe." ECF No. 64, at 18. They further contend that Matlock (1) undertook a "laborious and document-intensive process to establish the best course of action for streamlining the Center to create a more efficient and effective state agency," id. at 23, (2) consulted with various individuals regarding the WTA process, and (3) "sought the approval of multiple independent agencies to ratify the WTA proposal." id. This "thorough process," according to the defendants, when coupled with a "legitimate business justification" for eliminating the CFO position approved by the Center's Executive Committee, "inescapably surmounts any inference of... speech-based retaliatory animus." Id. In short, the defendants contend that a dispassionate review of the record belies any suggestion that Matlock was influenced by retaliatory animus and reveals that there is no genuine issue of material fact for a jury to decide.

         II.

         Pursuant to Federal Rule of Civil Procedure 56(a), the court must "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this determination, the court should consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with . . . [any] affidavits" filed by the parties. Celotex, 477 U.S. at 322. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. (citation omitted). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

         In determining whether a genuine issue of material fact exists, the court views the facts and draws all reasonable inferences in the light most favorable to the non-moving party. Glynn. 710 F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Or. 2011)). Indeed, "[i]t is an 'axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in pier] favor.'" McAirlaids. Inc. v. Kimberly-Clark Corp., 756 F.3d 307, 309 (4th Or. 2014) (internal alteration omitted) (citing Tolan v. Cotton, 572 U.S. 650, 651 (2014) (per curiam)). Moreover, "[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ...." Anderson, 477 U.S. at 255. However, the non-moving party "must set forth specific facts that go beyond the 'mere existence of a scintilla of evidence.'" Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252). Instead, the non-moving party must show that "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir. 2005) (quoting Anderson. 477 U.S. at 2495). "In other words, to grant summary judgment the [c]ourt must determine that no reasonable jury could find for the nonmoving party on the evidence before it." Moss v. Parks Corp., 985 F.2d 736, 738 (4th Cir. 1993) (citing Perini Corp. v. Perini Const., Inc., 915 F.2d 121, 124 (4th Cir. 1990)).

         III.

         In Count I, Carmack asserts that he was terminated in violation of Virginia's Fraud and Abuse Whistle Blower Protection Act ("FAWBPA"), Va. Code. Ann. § 2.2-3009, et seq, (1950), after reporting multiple instances of alleged wrongdoing and financial malfeasance at the Center. The FAWBPA provides that it is the "policy of the Commonwealth that . . . employees of governmental agencies be freely able to report instances of wrongdoing or abuse committed by governmental agencies or independent contractors of governmental agencies." Va. Code Ann. § 2.2-3009. In particular, "[n]o employer may discharge, threaten, or otherwise discriminate or retaliate against a whistle blower whether acting on his own or through a person acting on his behalf or under his direction." Id. at § 2.2-3011(A). In order to qualify as a whistle blower, the employee must make a "good faith report" of "wrongdoing or abuse" to "one of the employee's superiors, an agent of the employer, or an appropriate authority." Id. at § 2.2-3010(B).

         The FAWBPA defines a "good faith report" as one "made without malice" and about conduct that the employee "has reasonable cause to believe is true." Id. at § 2.2-3010. In other words, to be protected under the FAWBPA, an employee who discloses information about suspected wrongdoing or abuse "shall do so in good faith and upon a reasonable belief that the information is accurate." Id. at § 2.2-3010(B). "Wrongdoing" is defined as a violation, "which is not of a merely technical or minimal nature, of a federal or state law or regulation, local ordinance, or a formally adopted code of conduct or ethics of a professional organization designed to protect the interests of the public or employee." Id. at § 2.2-3010. The statute defines "abuse" as "an employer's or employee's conduct or omissions that result in a substantial misuse, destruction, waste, or loss of funds or resources belonging to or derived from federal, state, or local government sources." Id.

         The FAWBPA provides two ways in which an employee who has been terminated in a retaliatory and/or statutorily proscribed manner may seek redress. Under § 2.2-3012, a whistle blower covered by die state grievance procedure, Va. Code Ann. § 2.2-3000 et seq., or a local grievance procedure established under Va. Code Ann. § 15.2-1506, may initiate a grievance alleging retaliation and requesting relief through those procedures. Under § 2.2-3011, a whistle blower may also, as was done here, "bring a civil action for violation of this section in the circuit court of the jurisdiction where the whistle blower is employed" without exhausting administrative remedies. See Slack v. Wash. Metro. Area Transit Audi., 325 F.Supp.3d 146, 157 (D.D.C. 2018) (discussing whistleblower protections laws in Maryland and Virginia). The court, if it finds that a violation was "willfully and knowingly" made, may order appropriate remedies, including (1) reinstatement to die same position, or if die position is filled, to an equivalent position; (2) back pay; (3) full reinstatement of fringe benefits and seniority rights; or (4) any combination of these remedies. Va. Code § 2.2-3011(D). The court may also impose upon the employer, "whether a writ of mandamus or injunctive relief is awarded or not, a civil penalty of not less than $500 nor more than $2, 500, which amount shall be paid into the Fraud and Abuse Whistle Blower Reward Fund." Id.

         A.

         The central issue in dispute between the parties as to Count I and Count II relates to causation. In order to examine the causation element of Carmack's claims in Count I (and Count II), the court must first determine the extent of his protected activity. See Supinger v. Virginia, 167 F.Supp.3d 795, 819-20 (W.D. Va. 2016) (analyzing each complaint to determine whether it alleged wrongdoing or abuse within the meaning of the statute). This was no easy task. The defendants are correct mat hitherto, this litigation has centered exclusively on the June /July 2017 external complaint to the OSIG as the locus of Carmack's Count I and Count II claims, and that for the first time in this litigation, Carmack contends that his sundry "internal warnings and complaints" to Matlock, all of which predate his external complaint to the OSIG and occurred sporadically over the course of several years, constitute statutorily protected activity. See ECF No. 72, at 12 n. 14. The court would note that Carmack makes this substantial pivot in a single footnote, and merely by recapitulating the relevant ...


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