Supinger v. Commonwealth Of Virginia et al

Filing 81

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on March 2, 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 Defendants’ motion to dismiss Plaintiff’s amended
complaint, which contains thirteen causes of action against multiple defendants. 1 For the
following reasons, Defendants’ motion will be granted in part and denied in part.
I.

BACKGROUND

Plaintiff Robert Supinger, a Caucasian male, was the Assistant Special Agent in Charge
(“ASAC”) of the Lynchburg Department of Motor Vehicles’ Law Enforcement Services Office
(“LES”). In 2010 and for much of 2011, Supinger was the highest-ranking law enforcement
officer stationed onsite in the Lynchburg LES. Supinger grew increasingly concerned about the
conduct of Jennifer Dawson, a Program Support Technician in the Lynchburg LES. Supinger
concluded that Dawson suffered from “serious mental health issues,” and believed that her job
conduct was unsatisfactory, disruptive, and possibly dangerous.2 Docket No. 23, at ¶ 22.

1

Plaintiff asserts various claims against the Commonwealth of Virginia; the Virginia Department of Motor Vehicles
(“DMV”); Richard Holcomb, Commissioner of DMV; Joseph Hill, Assistant Commissioner of DMV; Jeannie
Thorpe, Human Resources Director of DMV; Donald Boswell, Law Enforcement Director of DMV; and Tom
Penny, Director of DMV’s Fuels Tax Enforcement Division.
2
Among other things, Dawson allegedly: yelled and screamed at persons on the telephone; threw items in the office;
threw items at agents; cried uncontrollably; ran from the office in distress; hid under her desk when alone in the
office; turned off all of the office lights during the workday; and illegally possessed a weapon on DMV property.

Supinger reported his concerns to David Stultz, the Special Agent in Charge (“SAC”) of
the Lynchburg LES. Stultz was unable to address Dawson’s behavior, however, because
Holcomb, Hill, Thorpe, and Boswell prohibited him from taking any action.
Dawson took medical leave on March 12, 2012. Upset that nothing was done to address
Dawson’s behavior, Supinger endeavored to apprise various individuals and elected officials
about his grievances.3 Supinger alleges that, because he spoke out about the problems he
observed in the office, Defendants discriminated and retaliated against him.
For instance, Supinger and other law enforcement officers spoke to Holcomb on March
15, 2012, about Dawson’s emotional and mental condition, her threat to public safety, and her
interference with the effective and efficient operation of the office. Boswell informed Supinger
the day after the meeting that he would be transferred from Lynchburg to Waynesboro. Boswell
told Supinger he was being transferred in order to comply with DMV’s nepotism policy, as
Supinger and his wife worked in the same building. Supinger and his wife had, however, worked
at DMV in the same building for over 12 years. Moreover, Supinger learned that several other
persons worked for DMV in the same office as their spouse, but only Supinger and his wife, who
are an interracial couple, were subject to an involuntary transfer under DMV’s nepotism policy.
The transfer to Waynesboro required Supinger to travel 1.5 hours to work each way, far
greater than the 15-minute drive Supinger enjoyed to the Lynchburg office. Supinger also claims
that the transfer negatively affected his employment responsibilities. After unsuccessfully
challenging the transfer through DMV’s internal appeals process, Supinger filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging that
the transfer was discriminatory.
3

Supinger contacted, among others: Tim Sadler, Audit Manager with the Division of State Internal Audit; Boswell;
Hill; Holcomb; then-Governor Robert McDonnell; State Senator Steve Newman; State Senator John Edwards; and
State Senator R. Creigh Deeds.

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Tim Sadler met with Supinger on April 6, 2012, regarding complaints he filed with
Virginia’s Fraud, Waste, and Abuse Hotline (“the Hotline”). Three days after Supinger’s meeting
with Sadler, Boswell, with the assistance of Hill and Thorpe, drafted a letter alleging that
Supinger violated DMV’s workplace harassment policy. Supinger filed a grievance on April 14,
2012, alleging that Boswell’s letter was issued in retaliation for reporting to the Hotline.
Later that month on April 27, Supinger and several other law enforcement officers went
to the office of State Senator Steve Newman to discuss their concerns. After the officers
explained the purpose of their visit, Senator Newman ordered all of them to leave his office
except for Stultz. Senator Newman notified several of the defendants of the April 27th meeting,
and Boswell, at the direction of Holcomb and Hill, “chastised” Supinger for speaking with
Senator Newman. Id. at ¶ 61. Boswell forbade Supinger from talking to persons outside the
DMV, and especially not to elected officials, about Dawson. Supinger later learned that Senator
Newman had, prior to the April 27 meeting, “intervened on Dawson’s behalf and spoken with
one or more of the Defendants about the circumstances then existing in the Lynchburg LES
office.” Id. at ¶ 59.
Hill and Boswell announced on May 11, 2012, that Dawson was returning to work from
her medical leave, and instructed the agents to be professional towards her. Because it was
apparent that no action would be taken against Dawson, Supinger again complained to the
Hotline in May and June of 2012.
DMV announced in June 2012 that it would reorganize effective October 1, 2012. The
reorganization would eliminate the Appomattox Division, the division at which Supinger was
ASAC. DMV announced initially that Supinger would become ASAC in the Roanoke District. In
August 2012, however, DMV decided that Supinger would be transferred to a separate DMV

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work unit, the Fuels Tax Enforcement Division. Moreover, a female with less seniority in law
enforcement, fewer years of employment at DMV, and less experience as ASAC would become
the ASAC in the Roanoke District.
Supinger unsuccessfully challenged his transfer to the Fuels Tax Enforcement Division.
Defendants told Supinger that he was transferred, rather than the less senior and less experienced
female ASAC, because she was a female with children, and Defendants did not want her out late
at night and far away from home.
Later that year, the tension in the Lynchburg DMV office came to a head when Dawson
allegedly assaulted Anastasia Wootten, a Senior Special Agent (“SSA”) at the Lynchburg LES
on September 13, 2012. Stultz assigned Supinger to investigate the incident, and Supinger began
gathering evidence. Because the Defendants took no action to address the incident, Wootten
obtained a warrant accusing Dawson of assault and battery.
Boswell, Hill, Thorpe, and Holcomb were upset that Supinger did not prevent Wootten
from obtaining a warrant, and on September 16, 2012, Boswell ordered Supinger to report to
Richmond to be interviewed about the incident. On September 17, defendant Penny interviewed
Supinger and implied that Supinger had committed some sort of misconduct by investigating the
alleged assault.
Believing Penny’s interview to be improper, Supinger complained to Virginia state
senators and delegates on September 24. Boswell called Supinger on September 28 and
suggested that Supinger’s job was in jeopardy for contacting the elected officials.
Unperturbed by Boswell’s call, Supinger continued to contact elected officials. Supinger
contacted then-Governor Robert McDonnell on October 4, 2012. Supinger and other law
enforcement officers met with State Senator Creigh Deeds on October 12 and discussed

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Dawson’s disruptive and dangerous work conduct, Defendants’ refusal to remedy the situation,
and the retaliation and discrimination Supinger had suffered by Defendants.
Defendants learned of Supinger’s meeting with Senator Deeds, and they again warned
him against discussing DMV matters with elected officials. Defendants also spoke with Stultz,
who recounted the conversation to Supinger. Boswell allegedly told Stultz that talking to
politicians about DMV matters was an “embarrassment” to Holcomb, and that Holcomb would
be sure “others paid the price for this” and that he was “not going to be embarrassed or take any
blame.” Further, Boswell allegedly told Stultz that Holcomb was a “political survivor” and that
he would blame the entire situation on Supinger, Stultz, and Wootten. Id. at ¶ 102–104.
Penny again interviewed Supinger on October 15, 2012. In addition to discussing
Dawson’s alleged assault on Wootten, Penny also questioned Supinger about the complaints he
had made about Dawson and the Defendants to the Hotline and to elected officials.
Supinger believed the interrogations were intended to intimidate witnesses in Wooten’s
assault and battery case against Dawson, and so Supinger contacted the DMV Human Resources
Office to request that Penny’s interrogations end, though to no avail.
Later that month, Boswell reduced Supinger’s annual evaluation rating from
“Extraordinary Contributor” to “Contributor,” and Supinger filed a grievance claiming his
reduction in evaluation ranking was retaliatory.
Frustrated, Supinger again contacted Governor McDonnell on December 19, 2012. After
learning that Supinger had contacted Governor McDonnell a second time, Hill, at the direction of
Holcomb, accessed Supinger’s driver’s license records on file with the DMV. Hill then provided
that information, including Supinger’s photograph, to Capitol Police at the Virginia General
Assembly Building and at the Governor’s Mansion. Hill directed the police to “be on the look

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out for Supinger” and to impede any attempt by Supinger to speak with elected officials. Id. at ¶
120.
In late 2012, Supinger filed Charges of Discrimination with the EEOC relating to his two
transfers, alleging that they were discriminatory. In January 2013, Supinger filed another Charge
of Discrimination with the EEOC.
Supinger contacted Governor McDonnell for a third time on February 5, 2013.
Defendants met with Supinger on February 12, 2013, and ordered him to report to Richmond
where he was interrogated for a third time by defendant Penny. The interrogation lasted “several
hours,” and was ostensibly about the events that led to Wooten’s assault and battery charge
against Dawson. Id. at ¶ 127. Penny, however, questioned Supinger about his pending
grievances, his EEOC charges, his cooperation with an investigation conducted by the State
Inspector General, and his contact with elected officials. Supinger filed a Charge of
Discrimination with the EEOC on February 26, 2013, alleging that the interrogations were
retaliatory
On February 18, 2013—two days after Supinger filed his newest Charge of
Discrimination—Hill suspended Supinger’s employment with DMV.4 Hill sent a letter to
Supinger in March detailing the reasons for his suspension. Finally, Hill terminated Supinger’s
employment with DMV on April 9, 2013
Supinger attempted to appeal his termination, but Holcomb, Hill, and Thorpe refused
Supinger a hearing. Supinger filed a Charge of Discrimination with the EEOC on January 1,
2014, relating to the termination of his employment.

4

On March 2, 2013, Supinger filed a Charge of Discrimination with the EEOC relating to the suspension of his
employment.

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Supinger has searched for new employment, and has received job offers “conditioned
upon receiving confirmation of certain aspects of his employment with DMV.” Id. at ¶ 144.
Supinger claims he has been unable to secure employment, however, because Holcomb, Hill, and
Thorpe “intentionally misrepresented and/or failed to confirm Supinger’s qualifications and
experience.” Id. at ¶ 145.
II.

STANDARD OF REVIEW

When evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court
must accept as true all well-pleaded allegations. See Vitol, S.A. v. Primerose Shipping Co., 708
F.3d 527, 539 (4th Cir. 2013); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007). “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and
quotation marks omitted). Stated differently, in order to survive a motion to dismiss, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570).
III.

DISCUSSION

A. TITLE VII NATIONAL ORIGIN AND RACIAL DISCRIMINATION
Plaintiff alleges that the Commonwealth and the DMV violated Title VII of the Civil
Rights Act of 1964 (“Title VII”) by discriminatorily transferring him from the Lynchburg office
to the Waynesboro office. Boswell told Supinger that the reason for the transfer was to comply
with DMV’s nepotism policy, as Supinger and his wife, who is Korean, worked in the same

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building. Supinger’s wife had, however, worked in the same office as Supinger for over twelve
years prior to his transfer. Supinger alleges that the nepotism policy was applied to only him and
his wife on account of their interracial marriage; no other interracial couples were transferred
under the nepotism policy.
Title VII prohibits discrimination on the basis of national origin, race, and sex in the
terms and conditions of employment. 42 U.S.C. § 2000e-2(a). To prevail on a Title VII
discrimination claim, Plaintiff must show that: (1) he is a member of a protected class; (2) he
suffered an adverse employment action; (3) at the time of the adverse employment action, he was
performing up to his employer’s expectations; and (4) similarly situated employees who are not
members of the protected class received more favorable treatment. Miles v. Dell, Inc., 429 F.3d
480, 485 (4th Cir. 2005).
The parties dispute only whether Supinger has pled facts that show he experienced an
adverse employment action. An adverse employment action is a discriminatory act that
“adversely affect[s] the terms, conditions, or benefits of the plaintiff’s employment.” James v.
Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004).
Conduct short of firing or refusal to hire can constitute an adverse employment action.
For example, “undesirable reassignment” can sometimes suffice. See Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 745 (1998). The Fourth Circuit has cautioned, however, that
“reassignment can only form the basis of a valid Title VII claim if the plaintiff can show that the
reassignment had some significant detrimental effect.” James, 368 F.3d at 376 (quoting Boone v.
Goldin, 178 F.3d 253, 256 (4th Cir. 1999)). “[A]bsent any decrease in compensation, job title,
level of responsibility, or opportunity for promotion, reassignment to a new position
commensurate with one’s salary level does not constitute an adverse employment action even if

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the new job does cause some modest stress not present in the old position.” Boone, 178 F.3d at
256–57.
Supinger argues that his increased commute time to the Waynesboro office constitutes an
adverse employment action. The transfer required Supinger to make a three hour roundtrip to
Waynesboro, an amount far greater than his 30-minute roundtrip to the Lynchburg office. Docket
No. 23, at ¶ 37. While the Fourth Circuit has said that “incurring small, additional commuting
expenses is not the type of adverse employment action that is cognizable under Title VII,”
Jensen-Graf v. Chesapeake Emp’rs’ Ins. Co., No. 14–2081, 2015 WL 3916783, at *2 (4th Cir.
June 26, 2015), Supinger’s commute increased substantially—from thirty minutes roundtrip to
three hours roundtrip. The inconvenience and expense caused by such a lengthy increase in
commute time is sufficient to cause a significant detrimental effect on the terms and conditions
of Supinger’s employment with DMV. Accordingly, I find that Supinger’s transfer to
Waynesboro constitutes an adverse employment action under Title VII.5 Defendants’ motion to
dismiss Plaintiff’s Title VII national origin and racial discrimination claim will therefore be
denied.
B. TITLE VII GENDER DISCRIMINATION
Supinger claims that the Commonwealth and the DMV’s decision to transfer him to the
Fuels Tax Enforcement Division amounts to unlawful gender discrimination under Title VII.
Although Supinger was initially to remain the ASAC of the Roanoke District, the DMV
ultimately gave the position to a female employee. DMV made the decision to appoint a female
rather than Supinger precisely “because she was a female with children and Defendants did not
want her out late at night and far from home . . . .” Docket No. 23, at ¶ 77.
5

Alternatively, Supinger argues that his transfer constitutes an adverse employment action because it had the effect
of a demotion. Because I find that Supinger’s increased commute is sufficient to establish an adverse employment
action under Title VII, I will not address Supinger’s alternative argument.

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Again, the parties dispute only whether the transfer to the Fuels Tax Enforcement
Division constitutes an adverse employment action. Supinger does not allege he experienced a
significant increase in commute time. Rather, he alleges that the transfer is an adverse
employment action for the following reasons. First, the transfer “would cause Supinger to lose
his opportunity for advancement in DMV law enforcement.” Docket No. 23, at ¶ 73. Second, the
transfer “would require Supinger to travel extensively and [would] require a substantial amount
of work outside of normal business hours, which was a significant deviation from Supinger’s
then-present assignment at DMV.” Id. at ¶ 74. Third and finally, the transfer “would place
Supinger under the direct supervision of SAC William Bralley [who] had a close business and
personal relationship with PST Jennifer Dawson, and Bralley would act to protect and defendant
Dawson.” Id. at ¶ 75.
While reassignment to a job that decreases a plaintiff’s “opportunity for promotion” can
be an adverse employment action, see Boone, 178 F.3d at 256–57, Supinger has not pled with
any specificity how the transfer would deny him opportunity for promotion. Supinger’s
complaint states only that the Fuels Tax Enforcement Division is “a much smaller section within
DMV.” Docket No. 23, at ¶ 73. This threadbare assertion is not enough. “While a
complaint . . . does not need detailed factual allegations,” Twombly, 550 U.S. at 555, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S. at 678.
Moreover, the transfer does not count as an adverse employment action merely because it
would require Supinger to work substantially outside of normal business hours or occasionally
travel. Supinger’s Employee Work Profile (“EWP”)6 already required him to be “[w]illing to

6

Defendants seek to rely on Plaintiff’s EWP, despite the fact that Plaintiff did not attach his EWP to his Complaint.
Defendants have attached the EWP to their motion to dismiss. “When a defendant attaches a document to its motion

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work irregular hours, travel overnight, and endure personal risks.” Docket No. 36, Ex. A, at 2. A
transfer that requires plaintiff to engage in work “consistent with preexisting responsibilities”
does not constitute an adverse employment action. See James, 368 F.3d at 372. Thus, because
Supinger was required to merely do his preexisting job duties, even if at a ratio higher than in
Lynchburg, the transfer did not “adversely affect the terms, conditions, or benefits of the
plaintiff’s employment.” Id. at 375.
Finally, Supinger has failed to articulate why working under the direct supervision of
William Bralley would amount to a “significant detriment.” Rather, that Supinger may have to
work under a supervisor he does not like amounts to nothing more than his “subjective
dissatisfiaction with [his job] and is not actionable . . . .” Gordon v. Guiterrez, No. 1:06cv00861,
2007 WL 30324, at *8 (E.D. Va. Jan. 4, 2007). For the above reasons, Defendants’ motion to
dismiss Plaintiff’s Title VII gender discrimination claim will be granted.
C. TITLE VII RETALIATION
Supinger claims that the Commonwealth and the DMV retaliated against him in violation
of Title VII because he engaged in protected activity. In particular, Supinger alleges that the
DMV retaliated against him by: (1) transferring him to the Fuels Tax Enforcement Division; (2)
repeatedly interrogating him; (3) “violati[ng] [his] rights under the Constitution of the United
States of America and the Code of Virginia”; (4) distributing his photograph to Capitol Police;
and (5) suspending and terminating his employment with DMV. Docket No. 23, at ¶ 164.
to dismiss, ‘a court may consider it in determining whether to dismiss the complaint [if] it was integral to and
explicitly relied on in the complaint and [if] the plaintiffs do not challenge its authenticity.’” Am. Chiropractic v.
Trigon Healthcare, 367 F.3d 212, 234 (4th Cir. 2004) (quoting Phillips v. LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir.
1999)) (alteration in original). In Trigon, the court considered a plaintiff’s professional services agreement because
the plaintiff “explicitly referred to the [services agreement], and its [claims were] based on the alleged
misrepresentation made in that document.” Id. at 234. Likewise here, Plaintiff has explicitly referenced his EWP in
his Complaint and uses his EWP to show that he experienced a reduction in responsibilities and therefore an adverse
employment action. Moreover, there is no indication that Plaintiff challenges the validity of the EWP. For those
reasons, I will consider Plaintiff’s EWP.

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A prima facie case of Title VII retaliation requires the plaintiff to allege that: (1) he
engaged in protected activity; (2) his employer took a materially adverse action against him; and
(3) but for the protected activity, the asserted adverse action would not have occurred. Foster v.
Univ. of Md.-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015).
1. Materially Adverse Action
Defendants concede, as they must, that suspending and terminating Supinger’s
employment constitutes a materially adverse action. They dispute, however, that the Defendants’
other allegedly retaliatory conduct constitutes materially adverse action.
To prevail on a Title VII retaliation claim, a plaintiff “need not show an ‘adverse
employment action defined as a materially adverse change in the terms and conditions of
employment.’”7 Caldwell v. Johnson, 289 Fed. Appx. 579, 588 (4th Cir. 2008) (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 60 (2006)). Rather, in the context of a
retaliation claim, a materially adverse action is an action that “might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Wells v. Gates, 336 Fed. Appx.
378, 383 (4th Cir. 2009) (quoting White, 548 U.S. at 68). An action is not materially adverse if it
amounts to “petty slights or minor annoyances that often take place at work and that all
employees experience.” White, 548 U.S. at 68.
a. Violation of Constitutional and Virginia State Law Rights
Supinger’s claim that Defendants retaliated against him by “violati[ng] [his] rights under
the Constitution of the United States of America and the Code of Virginia,” Docket No. 23, at ¶
164, fails because it is a legal conclusion. It is well established that “courts are not bound to

7

In other words, Plaintiff need not, unlike in his Title VII discrimination claims, show that the action “adversely
affect[ed] the terms, conditions, or benefits of the plaintiff’s employment.” Compare James, F.3d at 375.

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accept as true a legal conclusion couched as a factual allegation.” See Twombly, 550 U.S. at 555
(internal quotation marks and citation omitted).
b. Repeated Interrogations
“[I]nterrogations alone are insufficient as a matter of law to establish an adverse
employment action.” Lyman v. NYS OASAS, 928 F. Supp. 2d 509, 520–21 (N.D.N.Y. 2013); see
also Ren Yuan Deng v. New York State Office of Mental Health, No. 13 Civ. 6801(ALC), 2015
WL 221046, at *9 (S.D.N.Y. Jan. 15, 2015) (affirming that employer interrogations are not
materially adverse actions). DMV’s repeated interrogations of Supinger, most of which were
about subjects unrelated to his Title VII complaints, would not deter a reasonable employee from
engaging in protected activity. Such interrogations are a normal and expected aspect of
employment.
c. Distribution of Supinger’s Photograph to Capitol Police
Supinger alleges that Defendants’ “distribution of his photograph to Capitol
police . . . [is] materially adverse . . . .” Docket No. 23, at ¶ 164. A reasonable worker might be
dissuaded from engaging in protected activity if they knew their employer had distributed their
photograph to Capitol Police. Supinger has not, however, pled facts showing that he was either
aware that Capitol Police had his photograph, or that Capitol Police actually impeded any
attempt by Supinger to speak with elected officials. Indeed, DMV accessed Supinger’s
photograph sometime after December 19, 2012. The Court will assume the photograph was
distributed to Capitol Police soon thereafter. Supinger nevertheless continued to contact elected
officials. For instance, he contacted Governor McDonnell on February 5, 2013.8

8

Although Supinger’s complaint states that he contacted Governor McDonnell on February 5, 2012, the Court
assumes Supinger meant February 5, 2013. Plaintiff’s complaint otherwise flows chronologically, and the
surrounding paragraphs refer to February 2013.

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Because Supinger has pled nothing to suggest he was aware his photograph was
distributed to Capitol Police or that Capitol Police actually attempted to restrict his access to
elected officials, I conclude that merely distributing the photo, without more, does not constitute
a materially adverse action.
2. Causation
Even if Plaintiff can successfully show that he engaged in a protected activity and that his
employer took a materially adverse action against him, he must still allege facts showing a causal
connection between his protected activity and the materially adverse action. “Title VII retaliation
claims must be proved according to traditional principles of but-for causation . . . [which]
requires proof that the unlawful retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2533 (2013). In other words, “[t]o prove a causal connection, [Plaintiff] must be able to
show that [Defendants] fired him ‘because the plaintiff engaged in a protected activity.’”
Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007) (quoting Dowe v. Total
Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998)).
“Because causation can be difficult to prove, a plaintiff may raise a presumption of
causation by showing that the employer had knowledge of the protected activity and that the
adverse action occurred soon thereafter.” Vance v. Chao, 496 F. Supp. 2d 182, 186 (D.D.C.
2007) (citing Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985)). While “[t]here ordinarily
must ‘be some degree of temporal proximity’ between the protected activity and the retaliatory
conduct,” Rigg v. Urana, No. 1:14cv1093, 2015 WL 3904993, at *3 (M.D.N.C. June 25, 2015)
(quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 501 (4th Cir.
2005)), “when time between the two events is short, an inference of causation arises.” Rigg, 2015

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WL 3904993, at *3. “[A] gap of three to four months of temporal proximity has been held
insufficient, standing alone, to establish causation.” Id. at *3 (citing Shields v. Fed. Express
Corp., 120 Fed. Appx. 956, 963 (4th Cir. 2005)).
a. Suspension and Termination of Supinger’s Employment
Supinger has established a prima facie case of Title VII retaliation with regard to his
claim that DMV suspended and terminated his employment because he engaged in protected
activity. Suspension and termination of employment unquestionably qualify as materially
adverse action. See White, 548 U.S. at 52–53. Plaintiff has alleged that he engaged in protected
activity, to wit, that he made several charges of discrimination and utilized informal grievance
procedures to allege discrimination.9 See Laughlin, 149 F.3d at 259.
Causation has been sufficiently alleged. DMV learned about his EEOC charges “in
October 2012, and again in January 2013.” Docket No. 23, at ¶ 123. Supinger was suspended on
February 28, 2013, and ultimately terminated on April 9, 2013. Docket No. 23, at ¶¶ 133, 137. A
presumption of causation is established where, as here, plaintiff alleges “that the employer had
knowledge of the protected activity and that the adverse action occurred soon thereafter.” Vance,
496 F. Supp. 2d at 186. Defendants’ motion to dismiss with regard to Plaintiff’s claim that DMV
suspended and terminated his employment for engaging in protected activity is therefore denied.
3. Title VII Protected Activity
Supinger must also show he suffered a materially adverse action because he “engaged in
protected activity.” See Foster, 787 F.3d at 250 (emphasis added). This phrase is key. “Protected
activity” under Title VII is narrowly defined: Title VII makes it unlawful to retaliate against an
employee because the employee “opposed any [discriminatory practice under Title VII], or
9

Plaintiff’s complaint contains at least seven instances where Supinger either filed a formal Charge of
Discrimination with the EEOC or utilized informal grievance procedures to complain of discriminatory conduct. See
Docket No. 23, at ¶¶ 49, 78, 122, 125, 132, 134, 142.

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because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3. In other words,
“[a]n employer may not retaliate against an employee for participating10 in an ongoing
investigation or proceeding under Title VII, nor may the employer take adverse employment
action against an employee for opposing11 discriminatory practices in the workplace.” Laughlin
v. Metro. Washington Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998).
a. DMV’s Transfer of Supinger to the Fuels Tax Enforcement Division
Even assuming it constitutes materially adverse action, Supinger has failed to allege he
was transferred to the Fuels Tax Enforcement Division because he engaged in Title VII protected
activity. Supinger’s complaint states that the decision to transfer Supinger to the Fuels Tax
Enforcement Division was made, or at least announced, “in late August 2012.” Docket No. 23, at
¶ 71. The DMV did not have knowledge that Supinger engaged in Title VII protected activity,
however, until October 2012. See Docket No. 23, at ¶ 123 (“DMV learned of the filing of ASAC
Supinger’s Charges of Discrimination in October 2012, and again in January 2013.”). Because
the retaliatory conduct occurred before the DMV had knowledge of his Title VII protected
activities, Supinger has failed to allege that he was transferred because he engaged in Title VII
protected activity. Defendants’ motion to dismiss with regard to Supinger’s claim that DMV
transferred him to the Fuels Tax Enforcement Division for engaging in protected activity is
accordingly granted.

10

Activities that constitute participation include: (1) making a charge of discrimination; (2) testifying; (3) assisting;
or (4) participating in any manner in an investigation, proceeding, or hearing under Title VII. Laughlin, 149 F.3d at
259.
11
Activities that constitute opposition “encompass[] utilizing informal grievance procedures as well as staging
informal protests and voicing one’s opinions in order to bring attention to an employer’s discriminatory activities.”
Id. at 259. “Oppositional activity must be directed to ‘an unlawful employment practice’ under Title VII.”
DeMasters v. Carilion Clinic, 296 F.3d 409, 417 (4th Cir. 2015) (quoting 42 U.S.C. § 2000e-3(a)).

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a. DMV’s Transfer to Waynesboro and Accusatory DMV Letter
Supinger alleges that his transfer to Waynesboro constitutes retaliatory action. Moreover,
Supinger claims that the “Defendants drafted an allegation letter falsely accusing Supinger of
violating the Workplace Harassment policy and Standards of Conduct,” and that this also
constitutes retaliatory conduct under Title VII. See Docket No. 35, at ¶ 13. Even assuming the
transfer and the letter constitute materially adverse action, Supinger has failed to allege that he
was retaliated against because he engaged in Title VII protected activity.
Supinger states that “[o]n March 15, 2012, [he] and others met with Holcomb and raised
concerns regarding public and workplace safety.” Id. (emphasis added). “The next day,
Defendants told Supinger that DMV was transferring him to Waynesboro pursuant to the
“nepotism policy.” Id. Complaints of an employee’s threat to “public and workplace safety” is
not Title VII protected activity, because it does not “participat[e] in an ongoing investigation or
proceeding under Title VII . . . [or] oppos[e] discriminatory practices in the workplace.” Accord
Laughlin, 149 F.3d at 259. Rather, they are merely generalized grievances about the workplace,
and are not protected by Title VII. For that reason, Supinger has failed to allege that he was
transferred because he engaged in protected activity under Title VII.
Supinger also states that “[o]n Friday, April 6, 2012, [he] spoke with State Internal Audit
Manager Tim Sadler regarding his complaints lodged with [Virginia’s Fraud, Waste, and Abuse
Hotline].” Id. “On Monday, April 9, 2012, Defendants drafted an allegation letter falsely
accusing Supinger of violating the Workplace Harassment policy and Standards of Conduct.” Id.
Supinger complained to the FWA about: (1) Dawson’s behavior and how it constituted a threat
to public safety; and (2) Hill’s violation of state policy by accepting a gift from Dawson. Docket
No. 23, at ¶ 29–30. Supinger’s complaints to the FWA about Dawson’s threat to public safety

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and Hill’s violation of state policy prohibiting gifts is not about protected activity under Title
VII, as it does not consist of either filing a Title VII charge of discrimination or informally
opposing Title VII discrimination. Supinger has therefore again failed to allege that Defendants
drafted the letter because he engaged in protected activity under Title VII.
4. Summary
For the above reasons, Supinger has alleged a prima facie case of Title VII retaliation
only with regard to his claim that he was suspended and terminated because he filed Charges of
Discrimination with the EEOC and utilized DMV’s informal grievance procedures to complain
about DMV’s Title VII violations. All of Supinger’s other Title VII retaliation theories fail to
state a valid cause of action, and will be dismissed.
D. FREE SPEECH RETALIATION
Supinger claims that Holcomb, Hill, Thorpe, Boswell, and Penny12 retaliated against him
because, inter alia, he “petitioned and spoke to elected representatives . . . .” Docket No. 23, at ¶
171–72.
To state a First Amendment retaliation claim, Plaintiff must allege that: (1) he spoke as a
citizen about a matter of public concern, rather than about a matter of personal interest: (2) 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) the employee’s speech
was a substantial factor in the employer’s termination decision. McVey v. Stacy, 157 F.3d 271,
277–78 (4th Cir. 1998).
The parties’ principal dispute is whether Supinger’s speech was about a matter of public
concern. Speech is about a matter of public concern “when it involves an issue of social,
12

Supinger has withdrawn his claim of free speech retaliation against the Commonwealth and the DMV. See Docket
No. 35, at 14 (“Plaintiff concedes that the Commonwealth and DMV should be dismissed as to Count IV: they
cannot be properly included in this § 1983 claim . . . .”

- 18 -

political, or other interest to a community.” Kirby v. City of Elizabeth City, 388 F.3d 440, 446
(4th Cir. 2004). It is important to distinguish speech about social or political issues from speech
about “matters of internal policy, including mere allegations of favoritism, employment rumors,
and other complaints of interpersonal discord.” Goldstein v. Chestnut Ridge Volunteer Fire Co.,
218 F.3d 337, 352 (4th Cir. 2000). Speech about “[p]ersonal 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 First Amendment, but
are matters more immediately concerned with the self-interest of the speaker as employee.”
Stroman v. Colleton County Sch. Dist., 981 F.2d 152, 156 (4th Cir. 1992).
“[I]t [is] clearly established in the law of this Circuit . . . that an employee’s speech about
serious governmental misconduct, and certainly not least of all serious misconduct in a law
enforcement agency, is protected.” Hunter v. Town of Mocksville, 789 F.3d 389, 394 (4th Cir.
2015) (quoting Durham v. Jones, 737 F.3d 291, 303–04 (4th Cir. 2013)). In Hunter, for instance,
the Fourth Circuit held that speech detailing that the chief of police “embezzled funds, had a
drinking problem, and masqueraded as a certified officer with powers . . . even though he was
only an administrative chief without the authority to do so,” was certainly about matters of public
concern. Hunter, 789 F.3d at 394, 402.
Ultimately, whether speech addresses a matter of public concern “must be determined by
the content, form, and context of a given statement . . . .” Connick v. Myers, 461 U.S. 138, 147–
48 (1983). Because the speech’s “content, subject-matter is always the central aspect” of the
inquiry, Arvinger v. Mayor & City Council of Baltimore, 862 F.2d 75, 79 (4th Cir. 1988)
(citation omitted), the Court must “analyze carefully the exact language” of the employee’s

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speech “in order to determine whether it qualifies as a matter of ‘public interest’ beyond ‘a most
limited sense.’” Jurgensen v. Fairfax County, Va., 745 F.2d 868, 880 (4th Cir. 1984).
1. Contact with Governor McDonnell
Supinger alleges that he met with Governor McDonnell three times. Specifically,
Supinger alleges that: (1) “On October 4, 2012, Supinger contacted then Governor Bob
McDonnell about the matters of public concern set forth herein,” Docket No. 23, at ¶ 97; (2) “On
December 19, 2012 Supinger contacted Governor McDonnell again regarding the matters of
public concern alleged herein,” id. at ¶ 117; and (3) “On February 5, 2012, Supinger contacted
Governor McDonnell again regarding the matters of public concern alleged herein,” id. at ¶ 126.
These are nothing more than “[t]hreadbare recitals of the elements of a cause of action
[here, “matters of public concern”], supported by mere conclusory statements . . . .” Iqbal, 556
U.S. at 678. “[C]ourts ‘are not bound to accept as true a legal conclusion couched as a factual
allegation.’” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Supinger has not provided the Court with any facts on which it can evaluate whether Supinger’s
conversation with Governor McDonnell was about a matter of public concern. Accordingly,
Supinger’s First Amendment retaliation claim as to his conversations with Governor McDonnell
will be dismissed.
2. April 27th Contact with Senator Newman and September 24th Contact with
Virginia Representatives
Supinger alleges that “on April 27, 2012, Supinger and other law enforcement officers
went to the office of State Senator Steve Newman to discuss their concerns [about fraud, waste
and/or abuse] with him.” Docket No. 23, at ¶ 56. Supinger also alleges that “[o]n September 24,
2012, Supinger contacted Virginia State Senators and Delegates regarding matters of public
concern, such as evidence of impropriety on the part of government officials as well as
- 20 -

incidences of fraud and gross mismanagement.” Id. at ¶ 92. While speech that the government
engaged in fraud and gross mismanagement could be a matter of public concern, see, e.g.,
Hunter, 789 F.3d at 394 (“[E]mployee’s speech about serious governmental misconduct . . . is
protected.”), Supinger has provided nothing more than “conclusory statements without reference
to its factual context.” See Iqbal, 556 U.S. at 686.
Supinger has concluded that his speech was about government impropriety, waste, fraud,
and mismanagement. He has not, however, provided any further factual enhancement to support
that conclusion. Supinger has not, for instance, provided even a rough summary or paraphrase of
what he actually said to the Virginia representatives or to Senator Newman; nor has he specified
of what the government impropriety, fraud, waste, and mismanagement consisted. Supinger’s
threadbare complaint distinguishes our case from Hunter, where the plaintiff spoke to the media
about specific government misconduct, to wit, how the Chief of Police “embezzled funds, had a
drinking problem, and masqueraded as a certified officer with powers . . . even though he was
only an administrative chief without the authority to do so.” 789 F.3d at 394. Thus, the plaintiff
spoke not only of broad governmental misconduct, but about specific instances of governmental
misconduct.
Plaintiff’s complaint, by contrast, consists of nothing but “labels and conclusions,” which
the Court need not accept. See Iqbal, 556 U.S. at 678. Because Supinger’s complaint is framed at
such a broad level of abstraction, it is impossible for the Court to determine whether his speech
was about a matter of public concern. Accordingly, Supinger’s First Amendment retaliation
claim as to his April 27, 2012, conversation with Senator Newman, and his September 24, 2012,
conversation with Virginia representatives, will be dismissed.
3. October 12th Meeting with Senator Creigh Deeds

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Supinger alleges that “[o]n October 12, 2012, Supinger and other law enforcement
officers met with State Senator Creigh Deeds to discuss the circumstances existing in the
Lynchburg LES office.” Docket No. 23, at ¶ 99. They discussed: (1) “[h]ow Dawson’s activities
were disrupting the orderly operation of the office resulting in a wasting of state resources in the
form of manpower, and placed citizens and DMV employees at risk and in fear for their own
safety”; (2) “[t]hat the Defendants had refused to do anything to address the situation”; and (3)
“[r]etaliation and discrimination perpetrated against Supinger, and other law enforcement
officers by Defendants.” Id. I find that Supinger’s speech was not about a matter of public
concern.
Supinger’s speech is principally about his dissatisfaction with “matters of internal policy,
favoritism, and other employment-related matters.” See Goldstein, 218 F.3d at 353. “As for
[Supinger’s] claims regarding ‘workplace safety,’ they concern not the public at large, but
Plaintiff and [his] colleagues in the Lynchburg LES office.” See Wootten, 2015 WL 1345276, at
*12. Likewise, “[his] claims regarding ‘waste’ describe a generalized ‘waste’ of [his] and other
employees’ time, not the waste of specific public funds.” Id. Although Hunter makes clear that
speech about serious governmental misconduct is a matter of public concern, see 789 F.3d at
394, Supinger’s dissatisfaction with DMV’s handling of Dawson boils down to a complaint of
favoritism extended to Dawson. Supinger’s speech, therefore, was about nothing more than
“matters of internal policy, including mere allegations of favoritism, employment rumors, and
other complaints of interpersonal discord.” Goldstein, 218 F.3d at 352. Supinger has therefore
failed to plead a case of First Amendment retaliation. Accordingly, Defendants’ motion to
dismiss Supinger’s First Amendment retaliation claim will be granted.
E. DEPRIVATION OF DUE PROCESS

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Supinger alleges that Holcomb, Hill, Thorpe, and Penny13 deprived him of due process in
violation of the Fourteenth Amendment after he was fired by “refus[ing] to afford Supinger a
hearing as required under the [Law Enforcement Officers Procedural Guarantees Act, or
LEOPGA, Va. Code § 9.1500, et seq.,]. Docket No. 23, at ¶ 140.14
The due process clause of the Fourteenth Amendment provides that “no state shall
deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend.
XIV § 1. “[I]n order to claim entitlement to the protections of the due process clause—either
substantive or procedural—a plaintiff must first show that he has a constitutionally protected
‘liberty’ or ‘property’ interest, and that he has been ‘deprived’ of that protected interest by some
form of ‘state action.’” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir.
1988) (internal citations omitted). If the plaintiff makes such a showing, the court considers what
process was required and whether any process provided was adequate in the particular factual
context. Id.
Plaintiff has sufficiently alleged a violation of procedural due process. Plaintiff had a
property interest in his continued employment with DMV, and he was deprived of that property
interest when he was suspended and terminated. LEOPGA provides that “[b]efore any dismissal,
suspension without pay or transfer for punitive reasons may be imposed . . . [a] law enforcement
officer may proceed under the . . . law-enforcement officer’s procedural guarantees . . . .” Va.
Code § 9.1-502. Plaintiff has plead that he “attempted to grieve his termination pursuant to the
13

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 Count IV, as they cannot be properly
included in this § 1983 claim.”).
14
Supinger also claims he was denied due process when “Defendants did not advise [him] that he was under
investigation or being considered for disciplinary or other punitive action when interrogated on three separate
occasions.” Docket No. 23, at ¶ 185. Supinger acknowledges, however, that the Defendants provided Supinger with
“notice . . . [which] outlined the reasons why DMV was terminating his employment.” Id. at ¶ 137. This is sufficient
process. See Riccio v. Cnty. of Fairfax, 907 F.2d 1459, 1465 (4th Cir. 1990). Accordingly, Supinger’s due process
claim with regard to the theory that the DMV failed to provide him with notice of the charges against him will be
dismissed.

- 23 -

LEOPGA, but [Defendants] have refused to afford Supinger a hearing as required under the
LEOPGA.” Docket No. 23, at ¶ 140. Plaintiff has thus alleged that the Defendants denied him
due process of law. Defendants’ motion to dismiss Plaintiff’s due process claim will be denied.
F. SUPERVISORY LIABILITY
Supinger alleges that “Defendant Holcomb exercised supervisory control over other
Defendants, specifically Hill, Thorpe, Boswell, and Penny . . . [and] Holcomb conspired with
these other Defendants to violate Supinger’s constitutional rights, namely free speech and
petition, and due process.” Docket No. 23, at ¶ 193–94.
To prevail on a supervisory liability claim, Supinger must show that: (1) Holcomb had
actual or constructive knowledge that his subordinates were engaged in conduct that posed a
“pervasive and unreasonable risk” of constitutional injury to Supinger; (2) Holcomb’s response
to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization
of the alleged offensive practices”; and (3) there was “an affirmative causal link” between
Holcomb’s inaction and the particular constitutional injury suffered by Supinger. Shaw v. Stroud,
13 F.3d 791, 799 (4th Cir. 1994); see also Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir.
2014).
As discussed, supra, Supinger has not pled a violation of his First Amendment rights.
Accordingly, his claim with regard to that theory will be dismissed. Supinger has, however,
sufficiently pled a violation of post-termination due process rights. Supinger’s complaint is
therefore sufficient to state a claim for supervisory liability against Holcomb. Defendants’
motion to dismiss Supinger’s supervisory liability claim will accordingly be denied to the extent
Supinger has sufficiently pled a violation of post-termination due process rights.
G. SECTION 1981 AND 1983 RACIAL DISCRIMINATION

- 24 -

Supinger claims that Holcomb, Hill, Thorpe, and Boswell “discriminated against [him]
on account of his marriage to a Korean, non-white female, [by] transferring him to Waynesboro
and terminating his employment,” Docket No. 23, at ¶ 207, in violation of 42 U.S.C. §§ 1981
and 1983. More specifically, Supinger alleges that “Boswell told Supinger that the reason for the
transfer was in the spirit of compliance with DMV’s nepotism policy because Supinger’s wife
worked in the same building as ASAC Supinger.” Docket No. 23, at ¶ 35. Supinger later
discovered “that several persons worked for DMV out of the same office but in different
departments . . . but Supinger and his wife were the only mixed race/mixed national origin
couple among this similarly situated group and were the only couple in which one of the spouses
was involuntarily transferred purportedly due to DMV’s nepotism policy.” Id. at ¶ 41.
Title 42 U.S.C. § 1981 grants all persons within the jurisdiction of the United States “the
same right . . . to make and enforce contracts . . . as is enjoyed by white persons.” Spriggs v.
Diamond Auto Glass, 165 F.3d 1015, 1018–19 (4th Cir. 1999). Section 1983 is the “exclusive
federal remedy for a violation of the rights guaranteed in § 1981.” Dennis v. County of Fairfax,
55 F.3d 151, 156 (4th Cir. 1995) (internal quotation marks and citation omitted). The elements of
a prima facie case under § 1981 mirror the elements required to establish a prima facie case
under Title VII. See Ford v. GE Lighting, LLC, 121 Fed. Appx. 1, 5 (4th Cir. 2005) (per curiam).
Therefore, Supinger must allege that: (1) he is a member of a protected class; (2) he suffered an
adverse employment action; (3) at the time of his employer’s adverse action, he was performing
up to his employer’s expectations; and (4) similarly situated employees who are not members of
the protected class received more favorable treatment. Miles v. Dell, Inc., 429 F.3d 480, 485 (4th
Cir. 2005).

- 25 -

Supinger has sufficiently alleged that his transfer to Waynesboro violated §§ 1981 and
1983. For the reasons stated in Section III.A., supra, Supinger’s transfer to Waynesboro was an
“adverse employment action.”Accordingly, Defendants’ motion to dismiss Plaintiff’s claim
under §§ 1981 and 1983 will be denied.
H. VIOLATION OF GOVERNMENT DATA COLLECTION AND DISSEMINATION PRACTICES ACT
AND VIOLATION OF THE DRIVER’S PRIVACY PROTECTION ACT
Supinger alleges that the Commonwealth, the DMV, Hill, and Hoclomb violated the
Government Data Collection and Dissemination Practices Act (the “Data Act”), Va. Code § 2.23800, when Hill, “at the direction of Defendant Holcomb . . . obtained, used and disclosed the
highly restricted personal information . . . of Supinger . . . to the Capitol Police at the General
Assembly and to non-law enforcement personnel in the Governor’s Mansion in Richmond,
Virginia.” Docket No. 23, at ¶ 213. The personal information included “Supinger’s driver’s
license photograph, with instructions to the Capitol Police to be on the lookout for
Supinger . . . .” Id. at ¶ 214. The Defendants obtained and disclosed Supinger’s information “in
an attempt to . . . prevent Supinger from contacting elected officials . . . .” Id. at ¶ 217.
Similarly, Supinger alleges that Hill and Holcomb violated the Driver’s Privacy
Protection Act (“DPPA”), 18 U.S.C. § 2721 et seq., when “Hill obtained, used and disclosed
Supinger’s restricted and highly restricted personal information in an attempt to restrict
Supinger’s ability to exercise his rights under the First Amendment to the Constitution of the
United States . . . .” Docket No. 23, at ¶ 230.
1. Driver’s Privacy Protection Act
Under the DPPA, “[a] person who knowingly obtains, discloses, or uses personal
information, from a motor vehicle record, for a purpose not permitted under [18 U.S.C. § 2721 et
seq.] shall be liable to the individual to whom the information pertains, who may bring a civil
- 26 -

action in a United States district court.” 18 U.S.C. § 2724. Such information may be disclosed
“[f]or use by any government agency, including any court or law enforcement agency, in
carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or
local agency in carrying out its functions.” 18 U.S.C § 2721(b)(1). Such information may also be
disclosed “[f]or any other use specifically authorized under the law of the State that holds the
record, if such use is related to the operation of a motor vehicle or public safety.” 18 U.S.C. §
2721(b)(14).
The “plaintiff bears the burden of showing that the obtainment, disclosure, or use of
personal information from her motor vehicle records was not for a purpose enumerated in that
section.” Wootten v. Virginia, C.A. No. 6:14-cv-00013, 2015 WL 1345276, at *15 n.11 (W.D.
Va. March 23, 2015).
The Western District of Virginia has thrice held that dissemination of an individual’s
photograph by the DMV to Capitol Police is a “permissible use” under the DPPA. See Wootten,
2015 WL 1345276, at *14 (“Hill’s disclosure of Plaintiff’s DMV information to the Capitol
Police is a ‘permissible use’ under [DPPA].”); Wootten v. Virginia, No. 6:14–cv–00013, 2015
WL 1943274, at *3 (W.D. Va. April 29, 2015) (“[T]he disclosure of Plaintiff’s DMV
information to the Capitol Police is a ‘permissible use’ under the [DPPA].”); Stultz v. Virginia
Dept. of Motor Vehicles, No. 7:13CV00589, 2015 WL 4648001, at *10 (W.D. Va. Aug. 5, 2015)
(“[Plaintiff] has not sufficiently alleged that his DMV information was impermissibly disclosed
to the Capitol Police.”). Accordingly, Supinger has failed to adequately plead a violation under
the DPPA. Defendants’ motion to dismiss Supinger’s DPPA claim will be granted.
2. Government Data Collection and Dissemination Practices Act

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“The [Data Act] was enacted in response to concerns over potentially abusive
information-gathering practices by the government, including enhanced availability of such
personal information through technology.” Carraway v. Hill, 574 S.E.2d 274, 276 (Va. 2003)
(citing Hinderliter v. Humphries, 297 S.E.2d 684, 686 (Va. 1982)). “The Act does not make such
personal information confidential but establishes certain practices which must be followed in the
collection, retention, and dissemination of that information.” Id. (citing Hinderliter, 297 S.E.2d
at 686).
Although unclear from Supinger’s complaint and his briefs, it appears that he is suing
under subsection (A)(1) of Va. Code § 2.2-3803. That subsection provides:
Any agency maintaining an information system that includes personal information
shall:
Collect, maintain, use, and disseminate only that personal information permitted
or required by law to be so collected, maintained, used, or disseminated, or
necessary to accomplish a proper purpose of the agency.
The Supreme Court of Virginia has made clear that “[t]here is a presumption that public
officials will obey the law.” Hinderliter, 297 S.E.2d at 689. Moreover, the Court has
established that “the burden [is] on the plaintiff to establish a lack of necessity or an
improper purpose for the dissemination.” Id.
For the reasons stated supra, disclosure of Supinger’s personal information to
Capitol Police is a permitted use. Accordingly, Defendants’ motion to dismiss Supinger’s
Virginia Data Act claim will be granted.
I. VIOLATION
ACT

OF

VIRGINIA’S FRAUD

AND

ABUSE WHISTLE BLOWER PROTECTION

Supinger alleges that because he “complained to the Commonwealth’s Fraud, Waste and
Abuse Hotline [“the Hotline”] . . . [Holcomb, Hill, Thorpe, and Boswell] retaliated against

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Supinger . . . [by] transferring Supinger twice and terminating his employment with DMV.”15
Docket No. 23, at ¶ 238–41. Supinger alleges that this conduct is in violation of Virginia’s Fraud
and Abuse Whistle Blower Protection Act (“Whistle Blower Act”), Va. Code § 2.2-3009 et seq.
The Whistle Blower Act provides that it is the “policy of the Commonwealth
that . . . employees of state government be freely able to report instances of wrongdoing or abuse
committed by state agencies or independent contractors of state agencies.” Va. Code § 2.2-3009.
In particular, “[n]o employer may discharge, threaten, or otherwise discriminate or retaliate
against a whistle blower whether acting on his own or through a person acting on his behalf or
under his direction.” Id. at § 2.2-3011(A).
In order to be a whistle blower under the statute, the employee must report on
“wrongdoing or abuse.” Id. at 2.2-3010. Wrongdoing is defined as “a violation, which is not of a
merely technical or minimal nature, of a federal or state law or regulation or a formally adopted
code of conduct or ethics of a professional organization designed to protect the interests of the
public or employee.” Id. Abuse is defined as “an employer’s or employee’s conduct or omissions
that result in a substantial misuse, destruction, waste, or loss of funds or resources belonging to
or derived from federal, state, or local government sources.” Id. No Virginia court has interpreted
or construed this provision of the statute.
1. October 17th Complaint to the Hotline
Supinger complained to the Hotline on October 17, 2011, “regarding Dawson’s
behavior . . . .” Docket No. 23, at ¶ 29. Supinger does not specify of which behavior he
complained. After surveying Supinger’s complaint, the Court concludes that none of Dawson’s
behavior possibly complained of to the Hotline constitutes “wrongdoing” or “abuse” within the

15

Plaintiff has withdrawn his claim against the Commonwealth and the DMV. See Docket No. 35, at 39 (“Plaintiff
concedes that the Commonwealth and DMV should be dismissed as to Count X.”).

- 29 -

meaning of the statute. Although Supinger alleges that Dawson illegally possessed a weapon on
DMV property, Supinger later clarifies that Dawson possessed pepper spray. This violation of
Virginia policy does not rise above a merely technical or minimal nature, and therefore is not a
complaint of wrongdoing.
Likewise, the complaint does not allege abuse. None of Dawson’s conduct resulted in a
“substantial misuse, destruction, waste, or loss of funds or resources belonging to or derived
from federal, state, or local government sources.” Va. Code § 2.2-3010.
2. November 30th Complaint to the Hotline
Supinger complained to the Hotline on November 30, 2011, that “Defendant Hill
accepted a gift from Dawson, in violation of state policy because Dawson is Hill’s
subordinate.”Docket No. 23, at ¶ 30. Supinger has not specified what Hill accepted from Dawson
or the value of the gift. Supinger’s complaint with regard to this theory is accordingly dismissed.
3. May and June 2012 Complaints to the Hotline
In May and June 2012, Supinger “again complained to the [Hotline] about Dawson’s
behavior and its disruption to the effective operation of the LES unit in Lynchburg.” Docket No.
23, at ¶ 67 A complaint about one employee’s disruptive effect on the effective operation of the
office does not constitute an allegation of either wrongdoing or abuse within the meaning of the
statute. Such a complaint does not allege a violation of any statute or rule, and it does not allege
a substantial misuse of state funds. Accordingly, Defendants’ motion to dismiss Plaintiff’s claims
under the Whistle Blower Act will be granted.
J. VIOLATION OF VA. CODE § 40.1-51.2:1
Supinger “complained to the Virginia Department of Labor and Industry (the
‘Department’) about occupational health and safety violations.” Docket No. 23, at ¶ 244.

- 30 -

Supinger alleges that the Commonwealth, the DMV, Holcomb, Hill, and Thorpe “retaliated
against Supinger for his complaining to the Department . . . [by] transferring Supinger twice and
terminating his employment with DMV.” Id. at ¶ 247. Supinger claims this conduct violated Va.
Code § 40.1-51.2:1.
Section 40.1-51.2:1 provides that “[n]o person shall discharge or in any way discriminate
against an employee because the employee has filed a safety or health complaint or has testified
or otherwise acted to exercise rights under the safety and health provisions of this title for
themselves or others.” If an employee believes that they have been discriminated against under
this provision, the employee “may, within 60 days after such violation occurs, file a complaint
with the Commissioner alleging such discharge or discrimination.” Va. Code § 40.1-51.2:2. If
the Commissioner “refuse[s] to issue a charge against the person that allegedly discriminated
against the employee, the employee may bring action in a circuit court having jurisdiction over
the person allegedly discriminating against the employee, for appropriate relief.” Va. Code §
40.1-51.2:2. If a plaintiff fails to exhaust these administrative remedies, plaintiff’s claim is
completely barred. See Bass v. E.I. DuPont de Demours & Co., 28 Fed. Appx. 201, 205 (4th Cir.
2002) (per curiam); Judy v. Nat’l Fruit Prod. Co., 40 Va. Cir. 244, 244–45 (Va. Cir. Ct. 1996).
Plaintiff has failed to allege that he filed a complaint with the Commissioner or that the
Commissioner refused to issue a charge of discrimination. Accordingly, Supinger has failed to
exhaust his administrative remedies. Supinger’s claim under Va. Code § 40.1-51.2:1 will
therefore be dismissed.
K. VIOLATION OF THE VIRGINIA COMPUTER CRIMES ACT
Supinger alleges that Hill, “at the direction of Defendant Holcomb, . . . used a computer
or computer network to intentionally examine without authority Supinger’s identifying

- 31 -

information, and copied that information and disseminated it to Capitol Police at the General
Assembly, and to personnel in the Governor’s Mansion . . . .” Docket No. 23, at ¶ 257. Supinger
claims that Holcomb and Hill’s conduct violated the Virginia Computer Crimes Act (“VCCA”),
Va. Code §§ 18.2-152.4 and 18.2-152.5.
Section 18.2-152.4 makes it “unlawful for any person, with malicious intent, to . . . [u]se
a computer or computer network to make or cause to be made an authorized copy, in any form,
including, but not limited to, any printed or electronic form of computer data, computer
programs or computer software residing in, communicated by, or produced by a computer or
computer network.” Va. Code § 18.2-152.4(A)(6).16 Section 18.2-152.5 makes it a crime to
“use[] a computer or computer network and intentionally examine[] without authority any
employment, salary, credit or any other financial or identifying information . . . relating to any
other person.” Va. Code § 18.2-152.5(A).
“A person is ‘without authority’ when he knows or reasonably should know that he has
no right, agreement, or permission or acts in a manner knowingly exceeding such right,
agreement, or permission.” Va. Code § 18.2-152.2.
In order to state a claim under the statute, Supinger must plead facts sufficient to show
that the Defendants were “without authority” or that the copying of the information was
“unauthorized.” See, e.g., Global Policy Partners, LLC v. Yessin, 686 F. Supp. 2d 631, 640 (E.D.
Va. 2009). Supinger has pled in conclusory fashion that the Defendants “used a computer or
computer network to intentionally examine without authority Supinger’s identifying
information . . . .” Docket No. 23, at ¶ 257. Aside from this conclusion, Supinger’s complaint
lacks sufficient factual allegations “to raise a right to relief above the speculative level.” See
16

Although a criminal statute, the VCCA provides a private right of action to “recover for any damages sustained
and the costs of suit” to “[a]ny person whose property or person is injured by reason of a violation” of the statute.
Va. Code § 18.2-152.12(A).

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Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678; see also Stultz, 2015 WL 4648001, at *12
(finding that the plaintiff failed to state a plausible claim for relief because he merely “assert[ed],
in a conclusory fashion, that his superiors used a computer to examine his personal records
without authority . . . .”). Accordingly, Defendants’ motion to dismiss Plaintiff’s claim under Va.
Code §§ 18.2-152.4 and 18.2-152.5 will be granted.
L. TORTIOUS INTERFERENCE WITH CONTRACT EXPECTANCY
Supinger claims he “received conditional offers of employment for positions for which he
was qualified.” Docket No. 23, at ¶ 269. Supinger claims that Hill and Thorpe “interfered with
Supinger’s expectation of employment by providing inaccurate, false and defamatory,
incomplete information to Supinger’s prospective employers . . . .” Id. at ¶ 270. Supinger claims
that Thorpe and Hill’s conduct amounts to tortious interference with contract expectancy.
To establish a prima facie case of tortious interference with contract expectancy, the
plaintiff must show: “(i) the existence of a valid contractual relationship or business expectancy;
(ii) knowledge of the relationship or expectancy on the part of the interferer; (iii) intentional
interference inducing or causing a breach or termination of the relationship or expectancy; and
(iv) resultant damage to the party whose relationship or expectancy has been disrupted.” LewisGale Med. Ctr., LLC v. Alldredge, 710 S.E.2d 716, 720 (Va. 2011) (quoting DurretteBradshaw,
P.C. v. MRC Consulting, L.C., 670 S.E.2d 704, 706 (Va. 2009)).
Throughout much of the relevant portions of his complaint, Supinger alleges merely that
he “ha[s] received conditional offers of employment for positions for which he was qualified.”
Docket No. 23, at ¶ 269. In order to establish a prima facie case of the tort, however, Supinger
must allege a “specific, existing contract or business expectancy or opportunity that has been
interfered with in a tortious manner.” Masco Contractor Servs. East, Inc. v. Beals, 279 F. Supp.

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2d 699, 710 (E.D. Va. 2003) (emphasis omitted). Thus, conclusory allegations that “[o]n several
occasions [he] has been extended conditional offers of employment,” Docket No. 23, at ¶ 144,
are insufficient.
After amending his complaint, Supinger specifies that he received an offer from “SOC,
LLC.” Id. Aside from providing “a formulaic recitation of the elements of [the tort],” Twombly,
550 U.S. at 555, Supinger’s complaint does not contain sufficient factual matter to state a claim.
His conclusory allegations that Defendants interfered with this job offer is insufficient.
Accordingly, Defendants’ motion to dismiss Plaintiff’s claim for tortious interference with
contract expectancy will be granted.
IV.

CONCLUSION

For the aforementioned reasons, Defendants’ motion to dismiss 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.
2nd

Entered this ________ day of March, 2016.

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