Altizer et al v. Town of Cedar Bluff Virginia et al

Filing 54

OPINION AND ORDER granting 41 Motion for Summary Judgment. Signed by Judge James P. Jones on 4/17/2015. (lml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
MARILYN ALTIZER, ET AL.,
Plaintiffs,
v.
TOWN OF CEDAR BLUFF, VIRGINIA,
ET AL.,
Defendants.

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Case No. 1:14CV00007
OPINION AND ORDER
By: James P. Jones
United States District Judge

Michael A. Bragg, Bragg Law, Abingdon, Virginia, and Terrance Shea
Cook, T. Shea Cook, P.C., Richlands, Virginia, for Plaintiff; W. Bradford Stallard,
Penn, Stuart & Eskridge, Abingdon, Virginia, for Defendants.
In this action under 42 U.S.C. § 1983, the remaining plaintiff, a former
municipal employee, claims that she was fired in violation of the First
Amendment, on account of public comments made on her behalf about the alleged
failure to promptly pay funds into the municipal employees’ deferred
compensation plan. She further contends that her plan funds were taken from her
without just compensation, in violation of the Fifth Amendment’s Takings Clause.
The plaintiff also asserts a pendant state law cause of action for wrongful
termination.
Following discovery, the defendants have moved for summary judgment.
The defendants’ motion is ripe for decision, having been fully briefed by the

parties and orally argued. For the reasons that follow, I will grant the defendants’
motion and enter judgment in their favor.
I.
The following facts are taken from the summary judgment record.
The plaintiff Marilyn Altizer (“Mrs. Altizer”) was formerly employed as an
assistant clerk for a small Virginia municipality, the Town of Cedar Bluff (the
“Town”). During her employment with the Town, Mrs. Altizer participated in a
deferred compensation plan. Pursuant to the plan, established under a provision of
the Internal Revenue Code, 1 the Town withheld between $106.88 and $119.77
from each of Mrs. Altizer’s biweekly paychecks. The amount withheld depended
upon Mrs. Altizer’s earnings during a particular pay period. The withholdings
were eventually deposited in an investment account managed by VALIC, the thirdparty administrator of the Town’s deferred compensation plan.2
Mrs. Altizer, a longtime Town employee, received criticism from her
supervisor about her job performance, including a written warning that she would
be terminated if she did not improve. Shortly after the warning, she received her
1

See 26 U.S.C. § 457 (“Deferred compensation plans of State and local
governments and tax-exempt organizations.”).
2

VALIC, an insurance company, also known as The Variable Annuity Life
Insurance Company, specializes in providing retirement plans for governments and other
not-for-profit institutions. See Wikipedia, VALIC, http://en.wikipedia.org/wiki/VALIC
(last visited Apr. 9, 2015). Mrs. Altizer’s contributions were invested by VALIC in
various stock and fixed income mutual funds. (Defs.’ Reply Mem. Ex. 3, Attach. B, ECF
No. 50-3.)
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2013 first quarter benefits statement from VALIC. She saw that no contributions
had been made to her plan during that quarter, despite regular deductions from her
paychecks.

The parties do not dispute that payments had been approved by the

Town Council, with checks drawn for payment to VALIC. The parties also agree
that checks to VALIC were often held from being mailed by James McGlothlin,
the Town Manager, over the course of the preceding several years. McGlothlin
acknowledges that the checks were being held until additional Town funds existed
to cover them. McGlothlin also held checks payable to other Town creditors for
the same reason. 3
Mrs. Altizer approached the Town’s Mayor, Jerry Herron, about the absence
of payments to VALIC. Herron told her that he would discuss the issue with
McGlothlin. Herron later told Mrs. Altizer that the payments would be forwarded
to VALIC. Mrs. Altizer also approached other Town Council members and told
them that she believed that the matter needed to be investigated further and asked
that an explanation be provided as to why the payments had been delayed.
Likewise, Tim Altizer (“Mr. Altizer”), the plaintiff’s spouse, discussed the
situation with McGlothlin in an attempt to obtain an explanation and a
commitment to correct the matter.

3

As the plaintiff points out, the Town during this period was not without other
sources of money, specifically a special bank account used to fund the construction and
equipping of a new fire department for the Town.
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On May 14, 2013, the Altizers appeared before the Town Council at its
regular public meeting. Mr. Altizer asked to be placed on the agenda. Mr. Altizer
addressed the Town Council regarding various issues, including the delay in
submitting plan contributions to VALIC.

Mr. Altizer has fully described the

content and scope of his comments before the Town Council in an affidavit and
deposition testimony filed with the court for the purpose of the present motion.
Later in the same Town Council meeting, Mrs. Altizer spoke during the
open citizen comments portion of the meeting. On March 25, 2013, prior to her
public comments and a few weeks before Mrs. Altizer had seen her quarterly
benefits statement, she had received a written reprimand from Town Manager
McGlothlin concerning her alleged failure to process delinquent utility customer
disconnections. In the reprimand, she had been told that if she did not improve,
she would be fired. (McGlothlin Aff. Ex. C, at 31, ECF No. 42-10.)4
In her comments to the Town Council, Mrs. Altizer attempted to justify her
job performance and did not discuss the issue of the timeliness of payments to
VALIC. Though the parties dispute exactly what was said at this time — with no

4

The defendants contend that at the time of Mrs. Altizer’s termination, the
delinquent utility bills amounted to approximately $130,000, causing a cash problem for
the Town, since the revenue to the Town from the utility department was about $30,000
per month. (McGlothlin Dep. 34-36, ECF No. 42-3.) While utility bills were sent for
sewage, garbage collection, and water, it was asserted that many renters would move
rather than pay long-delinquent amounts that had accumulated without the water service
being disconnected. (Trent Aff. ¶¶ 7,8,9, ECF No. 42-9.)
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transcript or recording of the meeting available — it is clear that Mrs. Altizer and
McGlothlin engaged in a series of exchanges that reflected their personal animosity
towards one another.

On May 17, 2013, three days after the Town Council

meeting, McGlothin terminated Mrs. Altizer’s employment.
The parties espouse different reasons why Mrs. Altizer was terminated. She
contends that she was terminated as a result of the comments Mr. Altizer made on
her behalf before the Town Council about the delay in transmitting plan
contributions.

In turn, the defendants contend that Mrs. Altizer was a poor

employee who deserved to be fired. Among other things, the defendants assert that
Mrs. Altizer repeatedly failed to process utility bill delinquencies in a timely
manner and was frequently insubordinate to McGlothlin, including at the Town
Council meeting.
On February 18, 2014, the Altizers filed the present suit seeking
compensatory and punitive damages against the Town and McGlothlin in his
individual capacity. Count One of the Complaint charges a violation of the First
Amendment in relation to Mrs. Altizer’s termination.

Count Two alleges a

violation of the Fifth Amendment Takings Clause arising from the Town’s alleged
use of the deferred compensation plan withholdings. The remaining claims assert
violations of state law, including wrongful termination, conversion, and breach of
fiduciary duty.
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Early on in the case, I granted in part and denied in part a Motion to Dismiss
filed by the defendants. Altizer v. Town of Cedar Bluff, Va., No. 1:14CV00007,
2014 WL 2535057 (W.D. Va. June 5, 2014), reconsideration denied, 2014 WL
2712068 (W.D. Va. June 16, 2014). Pursuant to my order, Mr. Altizer was
terminated as a party plaintiff to this litigation because of a lack of standing.
Additionally, Mrs. Altizer’s state law claims for conversion and breach of fiduciary
duty were dismissed. Mrs. Altizer’s Fifth Amendment claim against McGlothlin
was also dismissed.

Mrs. Altizer’s remaining claims survived the Motion to

Dismiss, and are now subject to the Motion for Summary Judgment.
II.
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). To raise a genuine issue of material fact
sufficient to avoid summary judgment, the evidence must be “such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this determination, “the
court is required to view the facts and draw reasonable inferences in a light most
favorable to the nonmoving party.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.
1994).

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The defendants have asserted numerous arguments in favor of their Motion
for Summary Judgment regarding each of the plaintiff’s remaining causes of
action. In considering the parties’ arguments, I will address each of the plaintiff’s
remaining claims in turn.
A. First Amendment Retaliation.
In Count One of the plaintiff’s Complaint, Mrs. Altizer asserts that “[t]he
Town, by and through Defendant McGlothlin, terminated the employment of
Marilyn Altizer in direct retaliation for the exercise of the rights of free speech on
matters of public concern.” (Compl. ¶ 12, ECF No. 1.) The specific speech at
issue involves the comments of the plaintiff’s spouse — made on her behalf — at
the May 14 meeting of the Town Council. (Id. ¶ 11.)
“The First Amendment right to free speech includes not only the affirmative
right to speak, but also the right to be free from retaliation by a public official for
the exercise of that right.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th
Cir. 2000). “While government employees do not lose their constitutional rights at
work, the Supreme Court has repeatedly held that the government may impose
certain restraints on its employees’ speech and take action against them that would
be unconstitutional if applied to the general public.” Adams v. Trs. of the Univ. of
N.C.-Wilmington, 640 F.3d 550, 560 (4th Cir. 2011). In evaluating “whether a

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public employee has stated a claim under the First Amendment for retaliatory
discharge,” I must consider:
(1) whether the public employee was speaking as a citizen upon a
matter of public concern or as an employee about a matter of personal
interest; (2) whether the employee’s interest in speaking upon the
matter of public concern outweighed the government’s interest in
providing effective and efficient services to the public; and (3)
whether the employee’s speech was a substantial factor in the
employee’s termination decision.
McVey v. Stacy, 157 F.3d 271, 277–78 (4th Cir. 1998).

To avoid summary

judgment, the plaintiff is “required to adduce evidence sufficient to show material
facts in dispute as to each of the three prongs of the McVey test.” Adams, 640 F.3d
at 561.
Regarding the first McVey element, “[w]hether speech fairly relates to a
public concern or expresses a private grievance or a matter of immediate selfinterest must be determined by the content, the form, and the context of the
speech.” Stroman v. Colleton Cnty. Sch. Dist., 981 F.2d 152, 156 (4th Cir. 1992).
Speech properly addresses a matter of public concern when “it affects the social,
political, or general well-being of a community.” Edwards v. City of Goldsboro,
178 F.3d 231, 246 (4th Cir. 1999).

“Personal grievances, complaints about

conditions of employment, or expressions about other matters of personal interest
do not constitute speech about matters of public concern that are protected by the

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First Amendment, but are matters more immediately concerned with the selfinterest of the speaker as employee.” Stroman, 981 F.2d at 156.
Whether the plaintiff’s claim addresses a matter of public concern requires
an examination of the comments made by Mr. Altizer at the Town Council
meeting. Pursuant to his affidavit filed in opposition to summary judgment, Mr.
Altizer states that he spoke at the Town Council meeting because he and Mrs.
Altizer had “decided that the concerns [regarding the withheld plan contributions]
should be aired publicly at the meeting.” (Timothy Altizer Aff. ¶ 3, ECF No. 487.) More specifically, he stated in his affidavit that “[t]he issues which concern
[Mrs. Altizer] and me went far beyond gaining compensation for [Mrs. Altizer’s]
losses.” (Id. ¶ 4.) He also states that his discussion of delayed payment of plan
contributions implicated possible mismanagement, embezzlement, financial
instability, and other associated issues of public concern. (Id.) However, Mr.
Altizer’s deposition testimony reveals a different focus.
In recounting his statements before the Town Council during his deposition
testimony, Mr. Altizer stated that at the beginning of his public comments, he was
asked if he was “speaking on behalf of all the [Town] employees?” (Timothy
Altizer Dep. 21, ECF No. 42-1.) He responded,
No . . . my comments regarding the salary deferral plan will only be
on behalf of my wife. There’s other employees, you know, there’s
other town employees here. Their monies was [sic] handled the same
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way. You know, if they would like to make comments regarding this
matter, that’s for them, but I’m only speaking on behalf of my wife.
(Id.) Mr. Altizer then “informed” the Town Council that he felt that they were not
going into closed session properly and described sales tax issues that were
unrelated to the issue of the deferred compensation withholdings. (Id.) Going
forward, Mr. Altizer produced a graph for the Town Council that showed “regular
and rhythmic” payments into the deferred compensation plan prior to the second
quarter of 2010, at which time they became “very irregular and very erratic.” (Id.)
Consequently, Mr. Altizer “felt that there had been lost earnings as a result of the
unreasonable amount of time that it was taking to get the money [deposited].” (Id.
at 22.) He also expressed concern that laws were potentially violated in the way
that the contributions were handled and that the matter should be investigated
further with an accompanying explanation of why the delays occurred. Mr. Altizer
made no further comments regarding this issue during the Town Council meeting.
I find that Mr. Altizer’s statements on behalf of Mrs. Altizer were limited to
addressing the perceived loss Mrs. Altizer allegedly suffered as a result of the
Town’s delay in submitting plan contributions to VALIC. The plaintiff contends
that in stating that Mr. Altizer’s comments were made only on his wife’s behalf, he
was merely stating that no other employees had authorized him to speak.
However, I find that the totality of his statements reveals the personal, not public,
nature of his concerns.

In context, Mr. Altizer’s statements about potential
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investment losses or legal violations addressed personal grievances related to his
wife’s deferred compensation withholdings. To the extent Mr. Altizer seeks to
broaden the scope of his comments through his affidavit to include general issues
of mismanagement, embezzlement, or financial instability, his deposition
testimony does not support that expanded interpretation. See Rohrbough v. Wyeth
Labs., Inc., 916 F.2d 970, 975 (4th Cir. 1990) (noting that an issue of disputed fact
cannot be created by submitting an affidavit that is inconsistent with prior
deposition testimony).
Regarding the causation element of McVey, 5
[t]he initial burden lies with the plaintiff, who must show that [their]
protected expression was a ‘substantial’ or ‘motivating’ factor in the
employer’s decision to terminate him. . . . If the plaintiff successfully
makes that showing, the defendant still may avoid liability if he can
show, by a preponderance of the evidence, that the decision to
terminate the plaintiff would have been made even in the absence of
the protected expression, more simply, the protected speech was not
the but for cause of the termination.
Wagner v. Wheeler, 13 F.3d 86, 90 (4th Cir. 1993) (citation omitted).

“[A]

first

amendment violation does not result ‘simply because the protected conduct makes
the employer more certain of the correctness’ of the decision to terminate an
5

Regarding the second McVey element, even if the speech involves a matter of
public concern, the employee’s interest must “outweigh[] the public employer’s interest
in what the employer has determined to be the appropriate operation of the workplace.”
Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000). Mr. Altizer’s statements do not
implicate this element of McVey. Rather, to the extent that Mrs. Altizer’s personal
statements before the Town Council effect the “operation of the workplace,” this is an
issue of causation under McVey.
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employee.” Id. at 91 (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 286 (1977)). Put simply, the “causation requirement was the result
of the [Supreme] Court’s desire to prevent a government employee from insulating
himself from legitimate termination simply by engaging in protected speech.” Id.
at 90. As a result, “[t]he causation requirement is rigorous.” Huang v. Bd. of
Governors of Univ. of N.C., 902 F.2d 1134, 1140 (4th Cir. 1990).
Mrs. Altizer contends that the exercise of her First Amendment rights —
through Mr. Altizer’s statements on her behalf — was a substantial factor in her
termination. The primary support for her argument is the timing of events in this
case. First, she alleges in her brief that McGlothlin conceded that he decided to
fire her after “the addresses to the Town Council at the May 14 meeting.” (Pl.’s
Mem. in Opp’n to Mot. for Summ. J. 10, ECF No. 48.) Second, she asserts that
any issues associated with her job performance were corrected prior to her
termination, because she had addressed the backlog of utility cut-offs by bringing
them up to date.

As a result, Mrs. Altizer contends that the timing of her

termination indicates that the exercise of her First Amendment rights resulted in
her termination.
The Fourth Circuit has stated, however, that “temporal proximity . . . is
simply too slender a reed on which to rest a Section 1983 retaliatory discharge
claim.” Wagner, 13 F.3d at 91. Beyond the timing of events in this case, Mrs.
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Altizer has failed to provide any real evidence that “the ostensibly legitimate
reasons given for [her] termination were pretextual.” Id. In contrast, the record
demonstrates that Mrs. Altizer was terminated as a result of her record of poor job
performance and insubordination.
Regarding Mrs. Altizer’s job performance, the defendants have provided
extensive documentation of various employee performance issues over an extended
period of time. Of particular concern to her employer, Mrs. Altizer repeatedly
failed to timely process delinquent utility account cut-offs in accordance with
Town policy and her job responsibilities, resulting in a significant financial burden
for the Town.

In response, Mrs. Altizer contends that at the time of her

termination, she had brought action on the delinquent utility bills up to date.
Regardless, the parties do not dispute that Mrs. Altizer was aware of her precarious
position with her employer prior to her termination.
The parties also do not dispute that the tipping point regarding Mrs. Altizer’s
employment occurred as a result of the May 14 public meeting. On the one hand,
Mrs. Altizer stresses the significance of the comments by Mr. Altizer as the reason
for her termination; on the other, the defendants focus on Mrs. Altizer’s individual
comments. Mrs. Altizer’s comments largely concerned problems with McGlothlin
as her supervisor. Although the details are disputed, there is no question that the
exchange between Mrs. Altizer and McGlothlin was heated and inappropriate for a
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public meeting. It is clear that Mrs. Altizer’s comments were inflammatory —
containing accusations of sexism and name calling. 6

Similarly, McGlothlin

repeatedly interrupted Mrs. Altizer during her statements. Within days of their
exchange, McGlothlin terminated Mrs. Altizer’s employment, having testified
during his deposition that he was “99 percent sure [he] was going to terminate her”
prior to the May 14 meeting. (McGlothlin Dep. 53, ECF No. 42-3.) Based on the
record, I find that Mrs. Altizer’s alleged job performance was not a mere pretext
for her termination, particularly within the context of the public dispute with her
supervisor before the Town Council.
Nevertheless, even had the plaintiff proved a constitutional violation,
McGlothlin would be entitled to qualified immunity from the claim. As stated by
the Fourth Circuit,
Qualified immunity shields government officials performing
discretionary functions from personal-capacity liability for civil
damages under §1983, insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known. . . . A right is clearly established if the
contours of the right are sufficiently clear so that a reasonable officer
would have understood, under the circumstances at hand, that his
behavior violated the right.
Campbell v. Galloway, 483 F.3d 258, 270–71 (4th Cir. 2007) (internal quotation
marks and citations omitted). “In determining whether the specific right allegedly
6

Mrs. Altizer admits that during her public comments, she accused McGlothlin
of having called her a “trailer trash butthole,” which he heatedly denied. (Marilyn Altizer
Dep. 30, ECF No. 42-2.)
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violated was ‘clearly established,’ the proper focus is not upon the right at its most
general or abstract level, but at the level of its application to the specific conduct
being challenged.” Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992); see also
Campbell, 483 F.3d at 271 (“[T]he determination of whether a given right was
clearly established requires us to define that right ‘at a high level of
particularity.’”). “[O]nly infrequently will it be ‘clearly established’ that a public
employee’s speech on a matter of public concern is constitutionally protected,
because the relevant inquiry requires a ‘particularized balancing’ that is subtle,
difficult to apply, and not yet well-defined.” DiMeglio v. Haines, 45 F.3d 790, 806
(4th Cir. 1995).
The broad legal principle governing this case is that public employees may
not be terminated on a basis that infringes their First Amendment right. The more
precise question in this case, however, is whether a reasonable official in
McGlothlin’s position would have known that Mr. Altizer’s comments on behalf of
the plaintiff addressed a matter of public concern. As previously stated, Mr.
Altizer’s comments largely addressed personal grievances, not matters of general
public concern. Therefore, even if Mrs. Altizer was terminated as a result of Mr.
Altizer’s comments, I cannot find that McGlothlin should have known that those
statements entitled Mrs. Altizer to First Amendment protection. See McVey, 157

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F.3d at 277 (“Officials are not liable for bad guesses in gray areas; they are liable
for transgressing bright lines.” (internal quotation marks and citation omitted)).
Additionally, the Town cannot be held liable for McGlothlin’s decision to
terminate Mrs. Altizer, because her alleged injury was not “caused by an
identifiable municipal policy or custom.” See Riddick v. Sch. Bd. of the City of
Portsmouth, 238 F.3d 518, 522 (4th Cir. 2000).
As stated by the Fourth Circuit, “[S]ection 1983 was not designed to
impose municipal liability under the doctrine of respondeat superior, [therefore]
the ‘official policy’ requirement was ‘intended to distinguish acts of the
municipality from acts of employees of the municipality, and thereby make clear
that municipal liability is limited to action for which the municipality is actually
responsible.’” Id. at 523 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469,
479 (1986)). To be liable for the actions of an employee, the “decisionmaker”
must possess “final authority to establish municipal policy with respect to the
action ordered.” Id. (quoting Pembaur, 475 U.S. at 481). “To qualify as a ‘final
policymaking official,’ a municipal official must have the responsibility and
authority to implement final municipal policy with respect to a particular course of
action.”

Id. (quoting Pembaur, 475 U.S. at 482–83). Whether an employee

possesses final policymaking authority is a question of local law, or in this case,

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requires an interpretation of the Town Charter. Cf. id. (“The question of who
possesses final policymaking authority is one of state law.”).
Regarding McGlothlin’s authority to terminate employees as town manager,
the Town Charter states that the town manager “shall have the authority and it shall
be his duty”
[t]o appoint such officers and employees as the council shall
determine and authorize as are necessary for the proper administration
of the affairs of the town with the power to discipline and remove any
such officer of employee . . . . Any officer or employee so removed
shall have the right of appeal to the council within thirty days after his
removal and after notice to the town manager. The action of the
council on such appeal shall be final.
(Town Charter §§ 3-91, -912, ECF No. 50-3.) Pursuant to this provision of the
Town Charter, any employee terminated by the Town Manager retains the right to
appeal that decision to the Town Council.

Stated differently, McGlothlin’s

authority to terminate Mrs. Altizer’s employment was not final, and was subject to
determination by the Town Council, a course that was not pursued by Mrs. Altizer.
As a result, McGlothlin’s “actions could not constitute official municipal policy”
regarding this issue. See Riddick, 238 F.3d at 523–24.
B. Wrongful Termination.
Mrs. Altizer alleges that “[t]he Defendants terminated [her] employment . . .
because of her public exposure of [t]he Town’s unlawful practice of using for its
own benefit moneys withheld from employees and held in trust.” (Compl. ¶ 19.)
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She has presented this claim in a manner analogous to her First Amendment cause
of action, and contends that she was terminated in retaliation for exercising her
right of free speech on a matter of public concern and that her alleged job
performance was a pretext for her termination.
Generally, employment in Virginia is at will, but the Supreme Court of
Virginia, in Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985),
created “an exception to the employment-at-will doctrine limited to discharges
which violate public policy, that is, the policy underlying existing laws designed to
protect the property rights, personal freedoms, health, safety, or welfare of the
people in general.” Miller v. SEVAMP, Inc., 362 S.E.2d 915, 918 (Va. 1987). This
exception only applies in narrow circumstances, and “[a]s a threshold matter, a
plaintiff attempting to assert a wrongful discharge claim pursuant to Bowman must
identify a Virginia statute that the employer-defendant violated by terminating the
plaintiff.” Storey v. Patient First Corp., 207 F. Supp. 2d 431, 450 (E.D. Va. 2002);
see also McCarthy v. Tex. Instruments, Inc., 999 F. Supp. 823, 829 (E.D. Va. 1998)
(“A Bowman claim must find root in a state statute.”).
In this case, the plaintiff’s asserted statutory right is defined as follows:
Nothing in this chapter shall be construed to prohibit or otherwise
restrict the right of any local employee to express opinions to state or
local elected officials on matters of public concern, nor shall a local
employee be subject to acts of retaliation because the employee has
expressed such opinions.
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For the purposes of this section, “matters of public concern” means
those matters of interest to the community as a whole, whether for
social, political, or other reasons, and shall include discussions that
disclose any (i) evidence of corruption, impropriety, or other
malfeasance on the part of government officials; (ii) violations of law;
or (iii) incidence of fraud, abuse, or gross mismanagement.
Va. Code Ann. § 15.2-1512.4.
As an initial matter, the plaintiff relies primarily on temporal evidence to
establish causation. Stated differently, she contends that Mr. Altizer’s comments
on her behalf were followed by her termination within days of the May 14 public
meeting.

For the reasons previously stated in addressing the plaintiff’s First

Amendment claim, she has failed to provide sufficient evidence to establish
causation in this context.
Moreover, Mr. Altizer’s statements on behalf of Mrs. Altizer do not satisfy
the definition of “matters of public concern” set forth in Virginia Code § 15.21512.4. As previously stated, Mr. Altizer’s statements were largely personal in
nature in that they sought to address an employee grievance associated with the
perceived mishandling of deferred compensation withholdings.

The plaintiff

asserts that this raises an issue of wrongdoing, malfeasance, and potential fraud.
More specifically, the plaintiff asserts that the Town served as the trustee of
employee withholdings, but failed to fulfill its responsibilities with respect to those
funds. The problem with the plaintiff’s argument, however, is that she has failed to

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provide any evidence that the Town’s delay in submitting plan contributions
constituted wrongdoing within the meaning of section 15.2-1512.4.
As an initial matter, it is not clear that the Town, as Mrs. Altizer’s employer,
was legally obligated to serve as a trustee for the plan withholdings prior to their
deposit with the plan administrator. Moreover, as will be discussed more fully
regarding Mrs. Altizer’s Fifth Amendment claim, there is also no evidence that the
length of delay in submitting withholdings was unreasonable. The plaintiff may be
correct that the delay was outside of the Town’s historic pattern of submitting
withholdings, but this change in behavior is not inherently unreasonable without
some support in the evidence. As a result, the plaintiff lacks factual or legal
support for her position that the delay constituted wrongdoing, which is necessary
to trigger protection under the limited definition of “matters of public concern”
contained in section 15.2-1512.4.
C. Fifth Amendment.
The plaintiff contends that the Town violated the Fifth Amendment by
holding her withheld deferred compensation contributions and not transmitting the
funds to the plan administrator within a reasonable time as required by the Internal
Revenue Code. Pursuant to 26 U.S.C. § 457, all assets and income of a deferred
compensation plan must be held in trust for the exclusive benefit of the employee.
See id. §457(g)(1). Under the applicable Treasury Regulation, “[a]mounts deferred
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under an eligible governmental plan must be transferred to a trust within a period
that is not longer than is reasonable for the proper administration of the participant
accounts (if any).” Treas. Reg. § 1.457-8(a)(2)(ii). Under these provisions, plan
contributions must be transferred to a trust within a reasonable amount of time.
Mrs. Altizer asserts that the Town failed to satisfy these requirements,7 which she
contends supports her claim under the Fifth Amendment’s Takings Clause.
The Takings Clause, applicable to the states through the Fourteenth
Amendment, forbids the taking of private property “for public use, without just
compensation.” U.S. Const. amend V. To assert a Fifth Amendment claim, the
plaintiff must establish a deprivation of a “cognizable property interest.” L.M.
Everhart Const., Inc. v. Jefferson Cnty. Planning Comm’n, 2 F.3d 48, 51 (4th Cir.
1993). The length of deprivation may vary, because “[i]t is well established that
temporary takings are as protected by the Constitution as are permanent ones.” See
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1033 (1992) (Kennedy, J.
concurring) (citing First English Evangelical Lutheran Church of Glendale v.
Cnty. of L.A., 482 U.S. 304, 318 (1987)).
As previously stated, Mrs. Altizer lacks sufficient evidence that the delay in
submitting withholdings to VALIC was unreasonable. She merely contends that
7

The plaintiff contends that some withholdings were never transmitted to
VALIC, including withholdings in May 2010 and April 2011. The defendants have
provided sufficient documentary evidence that these funds were in fact transmitted to
VALIC.
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this is a question of fact that a jury may decide based on the Town’s historic
pattern of payment. I disagree. Additional evidence is required to establish what
is reasonable in this context. The plaintiff acknowledges that she will not submit
any expert testimony regarding this issue at trial. Without expert testimony or
comparable evidence, I do not believe that a jury will be equipped to resolve this
issue.
Additionally, the plaintiff has failed to present any evidence of damages
resulting from the alleged taking. In short, she merely asserts, without evidence,
that the delay in transmitting her withholdings probably resulted in a lost
investment opportunity.

The plaintiff acknowledges, however, that the lost

investment opportunity in this case could have resulted in either a profit or a loss.
Without evidence to the contrary, it is entirely possible that the delay in
transmitting Mrs. Altizer’s withholdings — which were to be invested in mutual
funds — could have actually shielded the plaintiff from short-term loss. Under
these circumstances, the plaintiff has failed to present evidence of any damages
associated with her Fifth Amendment claim.

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IV.
For the foregoing reasons, it is ORDERED that Defendants’ Motion for
Summary Judgment (ECF No. 41) is GRANTED. A separate final judgment will
be entered forthwith.
ENTER: April 17, 2015
/s/ James P. Jones
United States District Judge

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