Silverman v. Town of Blackstone

• Decision Date: 03 February 2012
• Docket Number: Civil Case No. 3:11cv155–JAG.
• Citation: 843 F.Supp.2d 628
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Sidney Ronald SILVERMAN, Jr., Plaintiff, v. TOWN OF BLACKSTONE, VIRGINIA, Defendant.

843 F.Supp.2d 628

Sidney Ronald SILVERMAN, Jr., Plaintiff,

v.TOWN OF BLACKSTONE, VIRGINIA, Defendant.

Civil Case No. 3:11cv155–JAG.

United States District Court,

E.D. Virginia,

Richmond Division.

Feb. 3, 2012.

Thomas Joseph Moran, Archibald Wallace, III, WallacePledger LLC, Richmond, VA, for Plaintiff.

David P. Corrigan, Jeremy David Capps, Harman Claytor Corrigan & Wellman, Richmond, VA, for Defendant.

MEMORANDUM OPINION

JOHN A. GIBNEY, JR., District Judge.

This case involves the termination of the employment of Ronald Silverman, an employee of the Town of Blackstone, Virginia (the “Town” or “Blackstone”). Silverman contends that the Town ¹ fired him for exercising his rights under the First Amendment. The alleged speech in this case consists of years of communications about Town business between Silverman and his supervisor. Because these communications were part of his job, they are not protected speech under the First Amendment. The complaint, therefore, must be dismissed.

A second reason compels dismissal of the complaint. The plaintiff has not alleged any facts showing causation; he has not set forth a plausible claim that his speech led to his termination.

I. Proceedings

Silverman commenced this suit by filing a three-count complaint. Two of the counts attempt to allege claims arising under Virginia's whistleblower statute and the public policies reflected in that statute. The Court granted a motion to dismiss both state law counts.

The third count, arising under 42 U.S.C. § 1983, alleges that Blackstone fired Silverman in violation of his First Amendment rights. The Town moved to dismiss the First Amendment claim at the same time as the state law counts, but the Court directed Silverman to file a more definite statement of his constitutional claim. Silverman has filed a detailed statement of the facts underlying his claim, and Blackstone has renewed its motion to dismiss the case. The renewed motion to dismiss is currently before the Court.

II. Standard of Review

A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint; it does not resolve contests surrounding the facts of the case, the merits of a claim, or the applicability of any defense. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992). In considering the motion, a court must accept all allegations in the complaint as true and must draw all reasonable inferences in favor of the plaintiff. See Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999); Warner v. Buck Creek Nursery, Inc., 149 F.Supp.2d 246, 254–55 (W.D.Va.2001). To survive a motion to dismiss, a complaint must contain sufficient factual matter which, accepted as true, “state[s] a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This plausibility standard requires a plaintiff to demonstrate more than “a sheer possibility that a defendant has acted unlawfully.” Id. It requires the plaintiff to articulate facts that, when accepted as true, “show” that the plaintiff has stated a claim entitling him to relief, that is, the “plausibility of ‘entitlement to relief.’ ” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.2009) (quoting Iqbal, 129 S.Ct. at 1949;Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Although the Court must accept as true all well-pleaded factual allegations, the same is not true for legal conclusions. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949.

In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint.” Moore v. Flagstar Bank, 6 F.Supp.2d 496, 500 (E.D.Va.1997) (quoting 5 A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (1990)). The Court may also look to documents attached to the complaint and those incorporated by reference without converting a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. See Pueschel v. United States, 369 F.3d 345, 353 n. 3 (4th Cir.2004) (citations omitted).

III. Facts Alleged in Complaint and More Definite Statement

In the complaint and more definite statement, the plaintiff has provided the Court lengthy and detailed allegations, with supporting documentation, of the facts that he believes result in a First Amendment violation. The relevant allegations are as follows:

Blackstone is a small town in rural Virginia. Silverman was employed by Blackstone as the director of its Water and Waste Utilities Department. The department handles the Town's water and sewage service. Silverman reported to the Town Manager, Larry Palmore. Palmore fired Silverman on June 22, 2010, giving as his reason budgetary concerns and Silverman's ineffective supervision of employees. (Complaint, Ex. A, 7.)

Relations between Palmore and Silverman began to deteriorate in 2004. ( Id. at 4.) Around that time, Silverman became dissatisfied with Palmore's leadership of the Town. The plaintiff voiced his growing dissatisfaction in a series of letters and memoranda he sent to Palmore. The documents detailed what Silverman viewed as poor management, and they explained in great detail how the Town should operate the water and sewage plants.

After his termination, Silverman appeared before the Blackstone Town Council (the “Council”) to explain how sewage and water issues should have been handled, and how Palmore had bollixed them. At that time, Silverman provided to the Council, for the first time, the various missives he sent to Palmore. (Compl., Ex. A, 28–70; More Definite Statement, Attachs. 1–36.) In addition, he provided written “Opening Remarks” that ran to sixteen typed pages, single-spaced. (Compl., Ex. A, 12–27.) He also provided the Council his resume and a list of his accomplishments. (More Definite Statement, Attach. 8, 62–70.) Silverman urged Council to make changes and to rehire him so that he could run things the right way. (Compl., Ex. A, 8.) ²

Silverman's “Opening Remarks” are paradigmatic of all his communications: a dense and highly detailed product apparently written in stream-of-consciousness style. His letters to Palmore discuss sewage and water problems that range from the mundane to the important. Many of Silverman's communications with Palmore warn of catastrophes that will stem from ignoring his suggestions. Silverman told the Council that the documents he was giving to them were consistent with all his communications with Palmore, and they all dealt with the business of the Department of Utilities. He said:

The materials I have provided you represent the kinds [of] issues I've been bringing to [Palmore's] attention for many years. While Mr. Palmore has found some of these matters unnecessary, tedious, or even humorous, I don't.

(Compl., Ex. A, 8.)

Significantly, the communications were purely internal documents. Silverman did not relay his concerns to the Council or the local press. Indeed, he boasted in his “Opening Remarks” to the Council that he had always followed “the chain of command to report [his] concerns.” (Compl., Ex. A, 8.) The chain of command took him to Palmore, his superior in the Town's organization.

On a few occasions, Silverman discussed his concerns with members of the Town staff other than Palmore. Again, however, he communicated with them about Town business of mutual concern, and he did not take his concerns outside the circle of Town management.

All of Silverman's communications dealt with issues in his bailiwick—the utilities department. Typical of his communications is his letter of October 9, 2007. It is written on Town letterhead. It is six pages long, single-spaced. It discusses countless issues, and contains a list of “Unresolved Issues and Concerns.” The list consists of 40 numbered items that Silverman thought important, including such items as “mud valves at the back of the coagulation basin” (Issue 1), peeling paint (Issue 5), water puddles that remain until they evaporate (Issue 12), the “electrical conduit for the sludge suckers” (Issue 16), and inadequate window screens (Issue 39). (More Definite Statement, Attach. 14.)

Silverman has produced written communications dating back to 2003. The ones closest to his termination in June 2010 are most relevant to show the alleged motive for his termination, so the Court will review the documents generated in the eighteen months before his firing. They consist of the following:

• January 14, 2009. Letter to Palmore regarding disinfection by-products of chlorination of water. (More Definite Statement, Attach. 17.)

• September 24, 2009. Memorandum to utilities staff about certification of sewage plant operators. ( Id., Attach. 15.)

• September 28, 2009. Letter to Palmore dealing with an incorrect time sheet for an employee who may have been doing private work on Town time. ( Id., Attach. 29.)

• October 26, 2009. Letter to Palmore regarding monitoring plan for Cryptosporidium.³ ( Id., Attach. 5.)

• December 14, 2009. Email to Palmore requesting copies of overflow reports and information about monitoring Cryptosporidium. ( Id., Attach. 23.)

• March 16, 2010. Letter to Palmore dealing with certification of employees. ( Id., Attach. 16.)

• April 15, 2010. Letter to Palmore regarding budget issues. ( Id., Attach. 1.)

• April 21, 2010. Letter to Palmore regarding budget requests. ( Id., Attach. 2.)

• April 29, 2010. Memo to Town purchasing agent regarding expenses of the Utilities Department. ( Id., Attach. 11.)

• May 14, 2010. Letter to Palmore relating to overflows from sewage lines. ( Id., Attach. 24.)

• June 21, 2010. Letter to Palmore regarding sale of water for use in an irrigation pond. ( Id., Attach. 34.)

Some of Silverman's correspondence is long, some short....