Supinger v. Commonwealth, Case No. 6:15–CV–00017

Decision Date26 April 2017
Docket NumberCase No. 6:15–CV–00017
Citation259 F.Supp.3d 419
Parties Robert. E. Lee SUPINGER, Jr., Plaintiff, v. Commonwealth of VIRGINIA et al., Defendants.
CourtU.S. District Court — Western District of Virginia

Terry Neill Grimes, Brittany Michelle Haddox, Terry N. Grimes, Esq., P.C., Roanoke, VA, for Plaintiff.

Ryan Spreague Hardy, Sydney E. Rab, Office of the Attorney General, Richmond, VA, for Defendants.



This dispute relates to Plaintiff's termination from his employment as a law enforcement officer with the Virginia Department of Motor Vehicles ("DMV"). Plaintiff has brought claims against: the DMV; the Commonwealth of Virginia; DMV Commissioner Richard Holcomb, DMV Assistant Commissioner Joseph Hill; DMV Human Resources Director Jeannie Thorpe; DMV Director of Law Enforcement Donald Boswell; and DMV Director of Fuels Tax Tom Penny. The parties have filed cross motions for summary judgment. The claims at issue in these motions are: Title VII racial discrimination (Count I); Title VII retaliation (Count II); First Amendment retaliation (Count III); Procedural Due Process violations (Count IV); 42 U.S.C. § 1983 supervisory liability (Count V); and 42 U.S.C. §§ 1981 and 1983 racial discrimination (Count VI). Plaintiff seeks summary judgment on the following: (1) whether he has established a prima facie case of racial discrimination under Counts I and VI; (2) whether he engaged in a protected activity and faced an adverse action under Count II; and (3) whether his speech was on matters of public concern in Count III. Defendants seek summary judgment on all of Plaintiff's claims except for Count IV, which is on appeal to the Fourth Circuit on the question of qualified immunity.

The Court will grant Defendants' motion as to Count I, as Plaintiff's Title VII racial discrimination claim was untimely.

The Court will also grant Defendant's motion as to Count II. Plaintiff has failed to demonstrate that Defendants' reasons for terminating him were pretext for wrongful retaliation over Plaintiff's filing of EEOC charges and internal grievances.

As to Count III, the Court will grant Defendants' motion on the grounds that each of the defendants is entitled to qualified immunity. It was not clearly established that Defendants' conduct was in violation of the First Amendment.

For Count IV, it is uncontested that the claim against Defendant Penny should be dismissed. The Court will decline to address any damages issue until the issue of qualified immunity has been resolved by the Fourth Circuit.

Count V is dependent on a finding of constitutional violations in Counts III and IV. The Court will grant partial summary judgment with respect to supervisory liability for Count III, as that underlying claim is barred by qualified immunity. To the extent Defendants moved for summary judgment as to supervisory liability for Count IV, it is denied.

Count VI is evaluated under the same substantive standard as Count I. Under that standard, Plaintiff has failed to carry his burden of demonstrating that Defendants' legitimate reasons were pretext for unlawful racial discrimination, and Defendants' motion will be granted.

I. Facts

Although there are numerous claims that necessitate a somewhat lengthy recitation of the facts, the overall narrative of this case is not complicated. Plaintiff was unhappy with several aspects of his workplace at the DMV, including the conduct of a coworker Jennifer Dawson and the proposed reorganization of the DMV. As a result, Plaintiff took actions with the potential to create conflict with DMV management, such as helping launch a criminal investigation into Dawson, filing numerous grievances, and reporting his concerns to elected state officials. Plaintiff also faced negative employment actions during the relevant period, including being transferred to a distant office and eventually being terminated. The question before the Court is whether these negative actions taken against Plaintiff were wrongful and discriminatory, or whether they were lawful and justified. The specifics of this dispute are discussed in more depth below, organized by the claim to which they relate.

a. Racial Discrimination (Counts I and VI)

Plaintiff was reassigned from the Lynchburg DMV office to the one in Waynesboro. Plaintiff alleges that this transfer was motivated by racial discrimination because he is married to a woman of a different race.

i. Status Before Transfer

Plaintiff worked as an Assistant Special Agent in Charge ("ASAC") in the Appomattox Division of Virginia Department of Motor Vehicles ("DMV"), as a member of Law Enforcement Services. (Dkt. 184–1 ¶ 2). Plaintiff's primary office was located in the lower level of the Lynchburg DMV Customer Service Center ("Lynchburg CSC"). (Dkt. 181–47 at 1). Plaintiff, who is white, was married to a non-white Korean female who worked in the Customer Service Delivery Administration in the upper level of the Lynchburg CSC. (Id. ) The two did not interact in the course of their normal business and had worked in the same Lynchburg DMV for 12 years prior to his reassignment. (Id. ; dkt. 184–3).

ii. Transfer

DMV Assistant Commissioner Joseph Hill reassigned Plaintiff from the Lynchburg CSC to the Waynesboro CSC on March 16, 2012. (Dkts. 184–3; 181–63 ¶ 14). At the time of the reassignment, the reason given was to effectuate DMV's nepotism policy by separating him from his wife who worked in the same building. (Dkt. 184–2 at 28). In a subsequent email a few days later, DMV Commissioner Richard Holcomb claimed that the primary reason for the transfer was a need for leadership in the Waynesboro CSC, as Senior Special Agent Tony Stovall had recently transferred from the Waynesboro office to the Culpeper Division. (Dkt. 184–3).

The reassignment caused several disruptions to Plaintiff. As a result of the reassignment, Plaintiff was required to drive approximately 1.5 hours each way from his home to the Waynesboro office. (Dk. 184–2 at 36). Additionally, Plaintiff felt the move was effectively a demotion because he supervised few agents in Waynesboro and he conducted more fieldwork rather than managerial tasks. (Id. at 35–36, 66).

However, there were several factors mitigating these disruptions. Plaintiff was not required to travel to Waynesboro every day, and in fact only travelled there about two days per week. (Dkt. 181–60 at 31). Relatedly, he had office space available to him in Lynchburg for the times he worked there. (Dkt. 187–1 ¶ 6). Plaintiff's travel time was counted as time worked, and it was made using a state car with gas paid for by the state. (Dkts. 181–60 at 30–31; 181–49 at ECF 5). Plaintiff also retained his same title and salary after the reassignment. (Dkt 181–60 at 36 and 38). Further, he continued to do some managerial tasks associated with the ASAC position, such as coordinating schedules, assigning cases, and completing performance evaluations. (Dkts. 181–60 at 40, 39, 44).

b. Title VII Retaliation (Count II)

Plaintiff filed several internal grievances and EEOC charges.1 Plaintiff alleges that he was terminated in retaliation for filing these complaints.

i. EEOC Charges

Plaintiff filed an EEOC intake questionnaire related to alleged racial discrimination on January 17, 2013. (Dkt. 181–48). However, the EEOC did not produce a charge based on his questionnaire until many months later. (See dkt. 187–5). Plaintiff finally filed an EEOC charge alleging racial discrimination related to his reassignment on December 10, 2013. (Dkt. 181–45).2 The charge alleged racial discrimination on the basis of his interracial marriage. (Id. ) The charge also indicated that the discrimination was continuous, with the earliest incident occurring on March 16, 2012 (the reassignment) and the latest occurring on January 13, 2013. (Id. )

Plaintiff's declaration includes mentions of several other EEOC charges that were not presented as evidence and were only discussed in a footnote in Plaintiff's opposition to Defendants' motion. (Dkt. 187 at 13 n.6). Those are: a gender discrimination intake questionnaire in October 2012, a gender discrimination charge in December 2012, a retaliation intake questionnaire in March 2013, and an unspecified discrimination charge in March 2012. (Dkt. 187–1 ¶ 15). These EEOC charges will also be considered.

ii. Internal Grievances

Plaintiff filed a number of internal grievances in the weeks and months leading up to his termination. His grievances related to his transfer to Waynesboro (dkts. 181–49, 184–2 at 55), an allegation letter sent to him (dkt. 133 ¶ 54); his transfer to the Fuels Tax Enforcement division (Id. ¶ 80); DMV's alleged retaliation against him (Id. ¶ 102); and his performance evaluation (Id. ¶ 119).

c. First Amendment Retaliation (Count III)

Plaintiff communicated with several public officials regarding his various concerns. Plaintiff alleges that he was terminated in retaliation for speaking to these officials, in violation of his First Amendment rights.

i. Subjects of Plaintiff's Speech

1. Coworker Jennifer Dawson's Behavior

Throughout the relevant period, Plaintiff observed and reported on what he believed to be troubling and dangerous behavior from a coworker, Jennifer Dawson. For instance, he perceived that Dawson was sometimes paranoid about her own safety.3 She had multiple instances where she behaved in an animated or emotional manner Plaintiff felt was inappropriate in the office context.4 Throughout these various acts, Supinger and other coworkers expressed concern about Dawson's behavior to their superiors.5

Dawson also had two physical confrontations with coworkers. On February 23, 2012, Dawson threw a stack of papers at her supervisor, Special Agent in Charge David Stultz. (Dkt. 184–6 ¶ 35). On September 13, 2012, there was an incident in the women's bathroom where Dawson shoved or pushed Anastasia Wootten (a Special Agent at the Lynchburg CSC), although the severity and circumstances of this...

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