Supinger v. Commonwealth Of Virginia et al

Filing 140

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on July 20, 2016. (sfc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION

ROBERT E. LEE SUPINGER, JR.,

CASE NO. 6:15-cv-00017
Plaintiff,

v.

MEMORANDUM OPINION

COMMONWEALTH OF VIRGINIA, ET AL.,
Defendants.

JUDGE NORMAN K. MOON

This matter is before the Court on Plaintiff’s motion for partial summary judgment
(docket no. 94).
Plaintiff seeks summary judgment on his due process claim under 42 U.S.C. § 1983
against Defendants Richard Holcomb, Joseph Hill, Jeannie Thorpe, and Tom Penny.1 As
explained below, Plaintiff’s motion will be granted in part and denied in part.
I.

PROCEDURAL HISTORY

Supinger instituted this action in the Lynchburg City Circuit Court, and the Defendants
removed to this Court. In his original complaint, Supinger alleged various claims against
multiple defendants. On March 2, 2016, I dismissed several of Supinger’s claims, but allowed his
claim of deprivation of procedural due process, among others, to go forward. See Docket No. 82.
On April 4, 2016, Supinger filed a motion for leave to file a second amended complaint.
See Docket No. 91. Magistrate Judge Robert Ballou entered a report and recommendation
recommending that I grant the motion in part and deny the motion in part. I adopted Judge

1

Plaintiff has withdrawn his claim against the Commonwealth and the DMV. See Docket No. 35, at 25 (“Plaintiff
concedes that the Commonwealth and DMV should be dismissed as to [his due process claim], as they cannot be
properly included in this § 1983 claim.”).

Ballou’s report and recommendation in full on June 21, 2016, and on June 22, 2016, Supinger
filed an amended complaint.
Supinger has now filed a motion for partial summary judgment on his procedural due
process claim.
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) provides that a court should grant summary
judgment “if 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.” “As to materiality . . . [o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
order to preclude summary judgment, the dispute about a material fact must be “‘genuine,’ that
is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id.; see also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001). If, however, the evidence of a genuine issue of material fact “is merely colorable or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 250. In
considering a motion for summary judgment under Rule 56, a court must view the record as a
whole and draw all reasonable inferences in the light most favorable to the nonmoving party.
See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322–24 (1986); Shaw v. Stroud, 13 F.3d 791,
798 (4th Cir. 1994).
III.

FACTS

Supinger was an Assistant Special Agent in Charge in DMV’s Lynchburg, Virginia,
office. As a result of a conflict between Supinger and DMV, which is described more fully in

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Supinger v. Virginia, __F. Supp. 3d__, 2016 WL 865332 (W.D. Va. March 2, 2016), Supinger
was suspended on February 28, 2012. Pl.’s Ex. 2, at 2.
As a non-probationary law enforcement officer, Supinger had two means of grieving his
suspension. Supinger could proceed under the Commonwealth of Virginia’s Grievance
Procedure, Va. Code § 2.2-3000, et seq. (hereinafter, “VGP”), a process managed by the Office
of Employment Dispute Resolution (“EDR”). Alternatively, Supinger could proceed under Va.
Code § 9.1-500, et seq., known as the Law-Enforcement Officers Procedural Guarantee Act
(“LEOPGA”).2
On March 29, 2013, Supinger elected to grieve his suspension under the VGP. In order to
grieve his suspension under the VGP, Supinger was required to “initiate [his] grievance on a
fully completed ‘Grievance Form A.’” Office of Emp’t Dispute Resolution Grievance Procedure
Manual, at § 2.4 (hereinafter, “GP Manual”).3 Supinger duly submitted a Grievance From A
regarding his suspension from employment. Pl.’s Ex. 3.
Thereafter, on April 9, 2013, Hill issued to Supinger five Written Notices of Discipline
and terminated his employment with DMV. Pl.’s Exs. 5. Two of Supinger’s fellow employees,
David Stultz and Anastasia Wootten, were also terminated. The Virginia Attorney General
appointed Karen Michael as special counsel to represent DMV in Supinger, Wootten, and
Stultz’s administrative proceedings.

2

The details of these two processes are explained more fully at Part V.A.

3

In order to grieve a termination grievance under the VGP, the GP Manual requires that an employee “initiate[] [the
grievance] directly with EDR by submit[ing] a fully completed Grievance Form A – Dismissal Grievance.” GP
Manual § 2.5 (emphasis added). Thus, the GP Manual requires grievants to complete a special form to grieve a
termination grievance. While Supinger did submit an ordinary Grievance Form A relating to his suspension, the
parties agree that he never submitted a Grievance Form A – Dismissal Grievance relating to his termination.

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On April 17, 2013, Supinger, Wootten, and Stultz petitioned the Richmond City Circuit
Court to enjoin Michael’s appointment as special counsel. The Commonwealth demurred and
moved to dismiss the petition.
On April 26, 2013, Michael contacted Christopher Grab, the Director of EDR, and sought
on DMV’s behalf “an immediate Order by EDR to stay all proceedings as it relates to any
current, pending and/or future grievances that may be filed by Grievant.” Pl.’s Ex. 7, at 2.
Michael requested that the stay remain in place until the lawsuit seeking to remove Michael as
special counsel was resolved.
Grab responded to Michael’s request on May 3, 2013. Grab wrote that “[EDR] considers
the filing timeframe for dismissal grievances in these matters tolled during the pendency of the
Richmond City Circuit Court action.” Pl.’s Ex. 8, at 2.
On June 18, 2013, the Richmond City Circuit Court held a hearing on the grievant’s
petition. At the hearing, the court ordered orally that Supinger’s termination grievance be stayed,
see Pl.’s Ex. 9, at 6, and the court entered a written order memorializing the stay on June 27,
2013. See Pl.’s Ex. 10, at 3 (“The Court Orders that only those matters related to the termination
grievance now be stayed pending this Court’s ruling on the Petition [to remove Michael as
special counsel].”).
On October 21, 2013, the Richmond City Circuit Court dismissed Supinger’s petition
with prejudice, effectively dissolving the stay of any action regarding a termination grievance.
On October 25, 2013—four days after the stay was lifted—Supinger filed a termination
grievance under LEOPGA. See Pl.’s Ex. 12, at 2 (“Robert E. Lee Supinger, Jr. . . . files his
grievance pursuant to Virginia Code § 9.1 – 500 et seq., the Law Enforcement Officers
Procedural Guarantee Act . . . .”).

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On October 29, 2013, Michael denied Supinger’s request, stating that DMV had
“determined that Mr. Supinger may not proceed as requested.” Pl.’s Ex. 13, at 2. DMV refused to
grant Supinger a hearing under LEOPGA, in part, because it believed Supinger had “already
elected to proceed under the Commonwealth’s Grievance Procedure . . . .” Id. “DMV’s letter,
however, ignored the fact that Plaintiff’s March 2[9], 2013 grievance from electing the VGP
related to [his] suspension, not termination.” (emphasis in original). Wootten v. Virginia, 2016
WL 81504, at *5 (W.D. Va. Jan. 7, 2016).
On November 4, 2013, Supinger again requested a hearing under LEOPGA. Supinger
emphasized that his request was not unreasonably late, because it occurred just four days after
the Richmond City Circuit Court lifted the stay on termination grievance proceedings. Michael
replied on November 11, 2013, and stated that DMV was unaware of the Richmond City Circuit
Court and order staying Supinger’s possible grievances and that, in any event, “Supinger, by his
actions and representations, including those taken and made by counsel, has clearly indicated his
intention to proceed under the State Grievance Procedure.” Pl.’s Ex. 17, at 2. Michael’s letter
again disregarded the fact that Supinger never submitted a Grievance Form A – Dismissal
Grievance.
Supinger once again asserted his right to proceed under LEOPGA on November 14,
2013. Michael denied the request the next day on November 15, 2013. Michael argued that the
circuit court’s stay was not binding on DMV, as the agency was not a party to the April 17, 2013,
petition. Michael ended the letter by stating that “[t]he Agency will not be responding further to
any additional requests on this same issue.” Pl.’s Ex. 19, at 2.
That same day, Michael wrote Grab a letter and requested that “EDR immediately lift the
stay on all dismissal grievances, and order that the Grievants are permitted that amount of time to

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file their dismissal grievances that they had as of the date that the stay was first implemented.”
Defs.’ Ex. L, at 1. Grab responded on November 19, 2013, and informed the parties that the stay
of the dismissal grievances would remain in place through the pendency of the grievants’ appeal
from the Richmond City Circuit Court decision.4
The Virginia Supreme Court ultimately denied Supinger’s appeal from the Richmond
Circuit Court ruling, and on May 2, 2013, Michael requested that EDR lift the stay on the filing
of Supinger’s dismissal grievance.
Supinger responded on May 5, 2014, and reiterated that “on October 25, 2013, [Supinger]
filed and elected to pursue his termination grievance pursuant to [LEOPGA]. Accordingly,
[EDR] does not have jurisdiction in this matter.” Pl.’s Ex. 26, at 2. Grab issued a letter the
following day, and acknowledged that Supinger had elected to use the LEOPGA to grieve his
termination. “As such, Ms. Michael’s request regarding the stay of proceedings is moot because
the grievant is not pursuing and is no longer able to pursue a dismissal grievance under [VGP].”
Pl.’s Ex. 27, at 2 (emphasis added). Accordingly, Grab wrote that “[t]his would appear to
conclude EDR’s involvement in this matter.” Id.
IV.

ANALYSIS

Plaintiff sues Holcomb, Hill, Thorpe, and Penny for violating the Due Process Clause of
the Fourteenth Amendment. Defendants admit that “Supinger was vested with a constitutionally
protected property interest in continued employment.” Docket No. 127, at 12 (internal quotation
marks omitted). Moreover, all parties agree that “all the process that is due [Supinger] is
4

Grab also wrote, somewhat in contradiction to the stay, that “[i]f the grievants nevertheless would like to proceed
with their dismissal grievances, they are free to file them now . . . .” Defs.’ Ex. M, at 1. Although Supinger copied
Grab on his October 25 LEOPGA election letter, Grab’s November 19th letter made no reference to that election.
Indeed, there is no indication that Grab was even aware of Supinger’s October 25th election. What is clear is that
when Grab was explicitly and directly referred to Supinger’s October 25 election, Grab concluded that Supinger
would, by virtue of his LEOPGA election, “no longer [be] able to pursue a dismissal grievance under [VGP].” Pl.’s
Ex. 27, at 2.

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provided by a pretermination opportunity to respond [which he received], coupled with posttermination administrative procedures as provided by . . . statute.” Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 547–48 (1985). The parties are in accordance that processes provided
by VGP and LEOPGA each satisfy this requirement. Defendants admit that Supinger did not
receive process under either the VGP or LEOPGA. They also admit that they repeatedly denied
Supinger’s request to proceed under LEOPGA.
Ultimately, then, Supinger’s due process claim boils down to one primary issue: did
Defendants’ repeated refusal to give any post-termination process to a state employee violate due
process?
A. THE VGP AND LEOPGA
To understand the issue, “a review of Virginia’s grievance procedures is necessary.”
Wootten, 2016 WL 81504, at *6. Virginia law affords a non-probationary law enforcement
officer two forms of post-termination process. One is the VGP, Va. Code § 2.2-3000 et seq. The
VGP provides that “all nonprobationary state employees shall be covered by the grievance
procedure established pursuant to this chapter . . . .” Va. Code § 2.2-3001(A). If a party chooses
to grieve their dismissal under the VGP, the grievance “proceed[s] directly to a formal hearing.”
Id. at § 2.2-3003(A). Crucially, the VGP shall not apply to “[l]aw-enforcement
officers . . . whose grievances are subject to [LEOPGA] and who have elected to resolve such
grievances under those provisions . . . .” Id. § 2.2-3002.
The second scheme is LEOPGA, Va. Code § 9.1-500 et seq. LEOPGA provides that an
officer “may, within a reasonable amount of time . . . request a hearing” to grieve his
termination. Id. At the hearing, the officer may “present evidence, examine and cross-examine
witnesses.” Va. Code § 9.1-504(A). In accordance with Section 2.2-3002(3) of the VGP,

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LEOPGA provides that a grievant “may proceed under either [VGP] or [LEOPGA], but not
both.” Va. Code § 9.1-502(B).
As this Court made clear in Wootten, “whether Defendants violated state law in their
handling of Plaintiff’s termination grievance is not itself the sine qua non of Plaintiff’s Due
Process claim.” Wootten, 2016 WL 81504, at *7. “[A] state does not necessarily violate the
Constitution every time it violates one of its rules,” Riccio v. County of Fairfax, 907 F.2d 1459,
1466 (4th Cir. 1990), and “the mere fact that a state agency violates its own procedures does not
ipso facto mean that it has contravened federal due process requirements.” Garraghty v. Com. of
Va., Dep’t of Corr., 52 F.3d 1274, 1285 (4th Cir. 1995).
“[A]s Riccio and Garraghty themselves clearly allow, violations of state law can
transgress the Due Process Clause where their end result is constitutionally deficient process.”
Wootten, 2016 WL 81504, at *7. That happened here. Supinger clearly and unequivocally
elected to proceed under LEOPGA. As the Court will discuss, infra, Supinger’s election to
proceed under LEOPGA foreclosed, as a matter of law, his ability to proceed under the VGP.
Accordingly, because Defendants refused to allow Supinger to proceed under LEOPGA, they
“refused to provide Plaintiff with the only process available to [him].” Id.
B. SUPINGER ADEQUATELY AVAILED HIMSELF OF POST-TERMINATION REMEDIES
Defendants are correct that, in order “to state a successful claim for failure to provide due
process, ‘a plaintiff must have taken advantage of the processes that are available to him or her,
unless those processes are unavailable or patently inadequate.’” Root v. Cty. of Fairfax, 371 Fed.
App’x 432, 434 (4th Cir. 2010) (emphasis added) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d
Cir. 2000)). The undisputed facts show that Supinger repeatedly attempted to take advantage of
the processes that were available to him.

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It is undisputed that Supinger wrote to the DMV on October 25, 2013, November 4,
2013, and November 14, 2013, and demanded to proceed under LEOPGA. Defendants concede
that they denied all of Plaintiff’s requests. Defendants argue, however, that they offered to allow
Supinger to proceed under the VGP, and because he refused, he did not take advantage of the
processes that are available to him.
The VGP and LEOPGA are, however, clear—if a grievant chooses to proceed under one
statute, the grievant is then foreclosed from proceeding under the other. See Va. Code § 2.23002(3) (VGP does not apply to to “[l]aw-enforcement officers . . . whose grievances are subject
to [LEOPGA] and who have elected to resolve such grievances under those provisions . . . .”);
Va. Code § 9.1-502(B) (“A law-enforcement officer may proceed under either the local
governing body’s grievance procedure or the law-enforcement officer’s procedural guarantees,
but not both.”); see also Wootten, 2016 WL 81504, at *8 (a grievant’s “selection of LEOPGA
meant the VGP was foreclosed.”).
Defendants nevertheless contend that a series of communications by Grab indicate that
Supinger still had the opportunity to proceed under VGP after his October 25, 2013, election
letter. Defendants point to the fact that Supinger copied Grab on his October 25 election letter.
Despite this fact, Grab wrote in a November 19, 2013, letter, that, despite his stay of filing
deadlines, if “the grievants nevertheless would like to proceed with their dismissal grievances,
they are free to file them now, which I would encourage to hopefully resolve these issues more
quickly.” Defs.’ Ex. M. Defendants argue that this letter makes it “reasonable to infer that Grab
was using his statutory authority to circumvent a potential roadblock to give Supinger more
options for process.” Docket No. 127, at 17.

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This argument fails. First, it contradicts the clear, unambiguous language of the VGP and
LEOPGA, which provide that an election to proceed under one forecloses the greivant’s ability
to proceed under the other.
Second, although Defendants cite to Grab’s general authority to administer the VGP, see
Va. Code § 1202.1, none of Defendants’ cited authority indicates that Grab has the authority to
rewrite or suspend unambiguous provisions of the VGP or LEOPGA.
Third and finally, Defendant’s position ignores Grab’s May 6, 2014, letter. When
Supinger’s counsel explicitly and directly informed Grab that he had elected to proceed under
LEOPGA on October 25, 2013, Grab acknowledged that Supinger was therefore “no longer able
to pursue a dismissal grievance under [VGP].” Pl.’s Ex. 27, at 2. Grab’s May 6 letter indicates
plainly that he believed an election under LEOPGA prevented Supinger from proceeding under
VGP. Defendants fail to explain Grab’s apparently inconsistent positions,5 and, when considered
against the clear language of the VGP and LEOPGA, Defendants’ contention that the VGP
remained open to Supinger is, at best, “merely colorable” as a factual matter, and flatly wrong as
a matter of law. See Anderson, 477 U.S. at 250.
The undisputed facts are that Plaintiff attempted to grieve his termination under the only
process that was, as a matter of law, available to him after he elected to proceed under LEOPGA
on October 25. The VGP processes, because of Supinger’s election, were “unavailable” to him,
and accordingly he did not have to attempt to grieve under that statute. See Root, 371 Fed. App’x
at 434. Supinger has, accordingly, attempted to “take[] advantage of the processes that are
available to [him].” Id.
5

The inconsistency is created largely by Defendants’ specious claim that Grab’s November 19, 2013, letter should
be interpreted as an exercise of some unsubstantiated discretionary authority to ignore the clear mandates of the
VGP and LEOPGA. The inconsistency dissolves if, as the record shows, Grab, despite being copied on Supinger’s
October 25 election letter, was simply unaware that he had elected to proceed under LEOPGA until Supinger’s
counsel directly informed him on May 5, 2014.

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C. CAUSATION
Plaintiff concedes that the evidence is in dispute as to “whether Penny had a sufficient
role to be held liable for the due process violation.” Docket No. 95, at 10. Accordingly, summary
judgment will be denied as to Penny. It is undisputed, however, that Holcomb issued the letter
denying Supinger due process, and that Thorpe and Hill participated in deciding whether to
afford Supinger a LEOPGA hearing. See, e.g., Docket No. 127, Ex. M (Hill: “I [and Thorpe]
w[ere] involved in the discussions about [whether to offer Supinger process under LEOPGA.]”).
It is therefore undisputed that Holcomb, Thorpe, and Hill showed a “personal connection
between . . . [the] denial of [Plaintiff’s] constitutional rights . . . .” Vinnedge v. Gibbs, 550 F.2d
926, 928 (4th Cir. 1977). Accordingly, there are no undisputed facts as to causation with regard
to Holcomb, Thorpe, and Hill.
D. QUALIFIED IMMUNITY
Defendants claim they are entitled to qualified immunity. A defendant is entitled to
qualified immunity on money damages for constitutional violations unless the right violated
“was ‘clearly established’ at the time of the challenged conduct.” Covey v. Assessor of Ohio Cty.,
777 F.3d 186, 195–96 (4th Cir. 2015). “The burden of proof and persuasion with respect to a
defense of qualified immunity rests on the official asserting the defense.” Meyers v. Baltimore
Cty., Md., 713 F.3d 723, 731 (4th Cir. 2013). Defendants have failed to meet that burden.
The Supreme Court has established that due process requires that a terminated public
employee receive a “comprehensive post-termination hearing,” even where pretermination
process occurred. Gilbert v. Homar, 520 U.S. 924, 929 (1997) (citing Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532 (1985)). Four Fourth Circuit cases have also held that terminated state
employees are entitled to post-deprivation process. Garraghty, 52 F.3d at 1283 (citing Holland v.

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Rimmer, 25 F.3d 1251, 1258 (4th Cir. 1994); Linton v. Frederick County Bd. of County Com’rs,
964 F.2d 1436, 1441 (4th Cir. 1992); McClelland v. Massinga, 786 F.2d 1205, 1213 (4th Cir.
1986)).
Defendants argue they are entitled to qualified immunity because no court has held that
electing to proceed under either the VGP or LEOPGA automatically precludes a grievant from
proceeding under the other. This argument is unavailing, as the VGP and LEOPGA are
unambiguously mutually exclusive. See Wootten, 2016 WL 81504, at *7. The law was
established that Supinger was entitled to post-termination process. See Defs.’ Brief, at 12 (“For
state employees such as Supinger who have been terminated from employment, all the process
that is due is provided by a pretermination opportunity to respond, coupled with post-termination
administrative procedures as provided by Virginia statute.”) (quotation marks and alterations
omitted). Supinger elected to proceed under LEOPGA, thereby closing his avenue under the
VGP. Defendants repeatedly denied his request. “As the Supreme Court has emphasized,
officials can still be on notice that their conduct violates established law even in novel factual
circumstances.” Meyers v. Baltimore Cty., Md., 713 F.3d 723, 734 (4th Cir. 2013) (internal
citations and quotations omitted). That Defendants may have misread the plain text of the VGP
and LEOPGA does not entitle them to qualified immunity.
V.

CONCLUSION

For the aforementioned reasons, Plaintiff’s motion for partial summary judgment will be
granted in part and denied in part. An appropriate order will accompany this memorandum
opinion.
The Clerk of the Court is hereby directed to send a certified copy of this Memorandum
Opinion and the accompanying Order to all counsel of record.

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20th
Entered this ________ day of July, 2016.

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