Carmack v. Virginia

• Decision Date: 05 April 2019
• Docket Number: Case No. 1:18-cv-00031
• 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-00031

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

April 5, 2019

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

MEMORANDUM OPINION

This 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 seq. (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. 1-3.¹ The court assumes familiarity with its previous Memorandum Opinion, ECF No. 31.

The 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.² 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.

In 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, thedefendants 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.³ ECF No. 17, at 8. They have shown no indication of having changed their position vis-à-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 that the availability of alternative remedies precludes Carmack from bringing such a claim in the first place. Lastly, 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.

I.

Carmack 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 ("Foundation"). Id.

In 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.

When 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 theExecutive 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.

Carmack 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 following:

(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)

...