Carmack v. Virginia

• Decision Date: 29 August 2019
• Docket Number: Case No. 1:18-cv-31
• Court: U.S. District Court — Western District of Virginia
• Parties: WILLIAMS D. CARMACK, Plaintiff, v. COMMONWEALTH OF VIRGINIA, et al., Defendants.

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

Case No. 1:18-cv-31

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ABINGDON DIVISION

August 29, 2019

By: Hon. Michael F. Urbanski Chief United States District Judge

MEMORANDUM OPINION

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 the 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, the 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 the 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 the Southwest VirginiaHigher 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 inCharlottesville, 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) non-profit 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...