Mansoor v. County of Albemarle

Decision Date20 December 2000
Docket NumberNo. CIV. A. 3:00CV00047.,CIV. A. 3:00CV00047.
Citation124 F.Supp.2d 367
PartiesKarl MANSOOR, Plaintiff, v. COUNTY OF ALBEMARLE, et al., Defendants.
CourtU.S. District Court — Western District of Virginia

Deborah Chasen Wyatt, Wyatt & Associates, Charlottesville, VA, for plaintiff.

Mark Dudley Obenshain, Wharton, Aldhizer & Weaver, PLC, Harrisonburg, VA, for County of Alberle, Robert Tucker, Larry Davis, Mark Trank, John Miller, Richard Douglas Rhoades, defendants.

William N. Watkins, Sands, Anderson, Marks & Miller, Richmond, VA, for Cynthia Favret, defendant.

John Joshua Wheeler, Charlottesville, VA, for Thomas Jefferson Center for the Protection of Free Expression.


MICHAEL, Senior District Judge.

The plaintiff, an officer in the Albemarle County Police Department ("Department"), filed this action pursuant to 42 U.S.C. § 1983 against the County of Albemarle ("County"), certain county employees, and a private psychologist. He claims that the defendants violated his First Amendment right to freedom of speech by suspending him with pay after he spoke at a County Board of Supervisors meeting, and by conditioning his further employment on his not making any critical statements about any county employee at any time to any third party. He further claims that the lack of process surrounding his suspension with pay violated his right to due process of law under the Fourteenth Amendment, and that the defendants violated related laws of the Commonwealth of Virginia. The defendants filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the defendants' motions to dismiss shall be granted in part and denied in part.


The plaintiff works as a police officer for the Albemarle County Police Department ("Department").1 In April 1997, he attended a county Board of Supervisors Budget Hearing. At the hearing, the plaintiff made a statement that was critical of a "pay plan" proposed by the County Executive, defendant Robert Tucker. On April 11, 1997, Tucker responded by sending a letter to the plaintiff, with copies to each of his police supervisors, challenging the plaintiff's statement. Tucker's deputy also sent a letter to the plaintiff, telling him he had "no business" speaking critically about the County Executive or about other county matters pertaining to the Department.

Through that year, the plaintiff continued to express concerns to his Chief of Police, defendant Robert Miller, about how certain matters were being handled within the Department. Miller did not respond. By early 1998, these concerns apparently caused the plaintiff enough stress that he began seeing a private counselor, Dr. Hocking. Dr. Hocking diagnosed the plaintiff with panic disorder, and the plaintiff decided to take approximately forty days' sick leave. Upon his return to work, he asked Miller and defendant Richard Douglas Rhoads, the Captain of the Department, if he could be reimbursed for his counseling costs and missed days. The defendants saw this request as their opportunity to prevent the plaintiff from further criticizing the Department and county officials and policies.

On the advice of defendants Larry Davis and Mark Trank, counsel for the County, Miller and Rhoads informed the plaintiff that before he could be reimbursed he had to obtain a "second opinion" on his psychological condition. They referred him to a County-hired psychologist, defendant Cynthia Favret, Ph.D. In reality, Miller and Rhoads did not need Dr. Favret's opinion to reimburse the plaintiff. Rather, they wanted her to make an unfavorable report, which they then could use as a basis for retaliating against him for his prior statements, and for preventing him from making such statements in the future.

On October 20, 1998, Miller informed the plaintiff that Dr. Favret reported he had "impaired judgment and related behaviors." Although Dr. Favret's evaluation was disseminated to defendants Miller, Rhoads, Davis, Trank, and Tucker (collectively, the "individual county defendants"), the plaintiff was denied access to it and never was informed of the nature of his "impaired judgment and related behaviors." Based on Dr. Favret's evaluation, Miller suspended the plaintiff for thirty days, with pay. Miller claimed the suspension was "non-disciplinary," and thus, non-grievable. This was the first time the plaintiff had been disciplined in nine years of service. He previously received high evaluations for his performance in the field. Although the suspension was with pay, the plaintiff was unable to earn overtime during the holiday season and was denied the use of a take-home vehicle (both acknowledged as benefits of county employment), and his personnel record reflects a suspension for "impaired judgment."

The thirty-day duration of the suspension was conditioned on the plaintiff undergoing further counseling with Dr. Favret. This condition was designed by the defendants to obtain a second evaluation that would be more critical than the first. The plaintiff complied, and underwent further counseling. He was not permitted to return to work after thirty days, presumably because Dr. Favret's second opinion reported that he was "highly conventional, conforming, religious, and naive."

The suspension lasted seventy days, until December 30, 1998. On that date, Miller sent the plaintiff a "Plan of Assistance," which stated that the plaintiff only could return to work on certain terms and conditions. The first condition was:

That you shall at all times refrain from any verbal or written communications to third parties, including but not limited to county employees, relating to your employment that are in any way critical or negative towards the county executive, the chief of police or other police department management or command staff, or any other county official or employee.

(Memorandum from Miller to Mansoor (Dec. 30, 1998) (attached to the complaint).)

As the plaintiff wished to continue in his employment, he saw no option but to agree to return to work under these conditions. As a consequence, he "ceased speaking up on ongoing problems within the police department," including the following:

a) overt racial and sexual favoritism in the admission process; b) requests to change and falsify reports; c) ongoing and blatant sexual harassment of numerous females by one of the Defendants which is and has been ... well-known to all Defendants, except possibly Dr. Favret, for at least a year; d) official perjury; e) unwarranted citizen privacy invasions by use of police access to information; and f) abuse of police equipment and provisions ... for political purposes.

(Compl. at 8 ¶ 38.)

The plaintiff sued the defendants in the Circuit Court for the City of Charlottesville on April 19, 2000. The case was removed to this court on May 19. The complaint sets forth five causes of action: (1) Count One alleges a federal § 1983 claim against all defendants, based on violations of the First Amendment to the United States Constitution; (2) Count Two alleges a federal § 1983 claim against all defendants, based on deprivations of procedural due process under the Fourteenth Amendment; (3) Count Three alleges that all of the defendants violated the plaintiff's right to privacy under state law; (4) Count Four alleges a state law claim for actual and constructive fraud against all defendants except Dr. Favret; (5) Count Five alleges a state law claim for breach of contract against all defendants except Dr. Favret. The plaintiff seeks compensatory and punitive damages, and a declaration that his constitutional rights were violated. He also requests an injunction requiring that his employment not be subject to the above-described conditions, that his personnel history be expunged of adverse information, and that all information obtained from Dr. Favret be destroyed and not be used in the future.

The county defendants and Dr. Favret filed separate motions to dismiss, both pursuant to Federal Rule of Civil Procedure 12(b)(6). The court referred the motions to the presiding United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), for proposed findings of fact and a recommended disposition. The Magistrate Judge found that the plaintiff alleged insufficient facts to sustain his federal claims. He recommended that the court dismiss the case in its entirety and remand the supplemental state law claims to state court. He nevertheless examined the state law claims to provide the court with a complete record, and found that some of the state law claims could survive.

The plaintiff and the county defendants filed timely objections to the Report and Recommendation pursuant to Federal Rule of Civil Procedure 72.2 Dr. Favret filed no objections. The case is now before the court, which reviews de novo those portions of the report or specified proposed findings or recommendations as to which objection was made. See 28 U.S.C. § 636(b)(1) (West 1993 & Supp. 2000); Fed.R.Civ.P. 72(b).


In deciding a motion to dismiss under Rule 12(b)(6), the court must determine "whether the complaint, under the facts alleged and under any facts that could be proved in support of the complaint, is legally sufficient." Eastern Shore Markets, Inc. v. J.D. Assocs., 213 F.3d 175, 180 (4th Cir.2000). The court must "assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations ... [but] need not accept the legal conclusions drawn from the facts .... [or] accept as true unwarranted inferences, unreasonable conclusions or arguments." Id. (citations omitted). When a Rule 12(b)(6) motion tests the sufficiency of a civil rights complaint, the court "'must be especially solicitous of the wrongs alleged' and `must not dismiss the complaint unless it appears to a certainty that ...

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5 cases
  • Richards v. City of Weatherford
    • United States
    • U.S. District Court — Northern District of Texas
    • February 27, 2001
    ...assignments, over lunch and coffee breaks do not implicate the great objects of the Fourteenth Amendment"); Mansoor v. County of Albemarle, 124 F.Supp.2d 367, 379 (E.D.Va.2000) (under the federal standard of what process is due, the plaintiff's suspension with pay did not violate the Fourte......
  • Mansoor v. County of Albemarle
    • United States
    • U.S. District Court — Western District of Virginia
    • February 5, 2002 took up the defendants' motion to dismiss in its Memorandum and Opinion issued December 20, 2000. See Mansoor v. County of Albemarle, et al., 124 F.Supp.2d 367 (W.D.Va.2000). 2. The county was inadvertently omitted from the defendants' motion for summary judgment. The court hereby grants......
  • Bowers v. Rector and Visitors of University of Va
    • United States
    • U.S. District Court — Western District of Virginia
    • March 16, 2007
    ...— held that "suspension with pay," even if for punitive reasons does not trigger due process rights. See Mansoor v. County of Albemarle, 124 F.Supp.2d 367, 380 (W.D.Va.2000) (citing Loudermill for the proposition that an employer "can avoid the [due process] problem by suspending with pay" ......
  • Mitchell v. Winston-Salem State Univ.
    • United States
    • U.S. District Court — Middle District of North Carolina
    • March 30, 2020
    ...job, it can avoid the problem by suspending with pay." Cleveland Bd. of Educ., 470 U.S. at 544-45; see also Mansoor v. Cty. of Albemarle, 124 F. Supp. 2d 367, 380 (W.D. Va. 2000) ("Under the federal standard of what process is due, the plaintiff's suspension with pay did not violate the Fou......
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