McCrerey v. Allen

925 F. Supp. 1123

Peggy S. McCREREY, Plaintiff, v. Ray ALLEN, Jr., et al., Defendants.

Civil Action No. 3:95cv497.

United States District Court, E.D. Virginia, Richmond Division.

May 23, 1996.

COPYRIGHT MATERIAL OMITTED

Gerald T. Zerkin, Robert Godfrey, Melanie A. Hopper, Gerald T. Zerkin and Associates, Richmond, Virginia, for Plaintiff.

James S. Gilmore, III, Catherine C. Hammond, Guy W. Horsley, Jr., Office of the

Attorney General, Richmond, Virginia, for Defendants.

MEMORANDUM OPINION

PAYNE, District Judge.

Peggy S. McCrerey initiated this action under 42 U.S.C. § 1983 and Title VII, 42 U.S.C. § 2000, et seq., against the Commonwealth of Virginia, its Department of Professional and Occupational Regulation ("DPOR"), and Ray Allen, the Director of DPOR. The Complaint alleged that McCrerey had been discharged from one position and had not been interviewed for another because she was a woman. The defendants moved for summary judgment, and McCrerey sought leave to amend the Complaint to allege that the decision to terminate her employment, and the decision not to interview her for a new position, were both made on the basis of her political affiliation, or lack thereof. McCrerey also sought leave to add Jack Kotvas, the former Deputy Director of DPOR and its current Acting Director, as a defendant. Leave to amend was granted and McCrerey filed an Amended Complaint naming only Allen and Kotvas, individually, as defendants.

The Amended Complaint asserts claims against Allen and Kotvas under 42 U.S.C. § 1983 for violating McCrerey's rights under the First and Fourteenth Amendments because they took employment actions adverse to her solely on the basis of her political affiliation, or lack thereof. For that same reason, McCrerey charges that Allen and Kotvas violated 42 U.S.C. § 1985(3) by conspiring to violate her First and Fourteenth Amendment rights. There is no longer a charge of gender discrimination.

After the Amended Complaint was filed, Allen left state employment. Following completion of discovery, Allen and Kotvas moved for summary judgment.

STATEMENT OF FACTS

A. The Deputy Administrator Position

On July 26, 1994, McCrerey was terminated from employment as DPOR's Administrator for Regulatory Programs,¹ a position she had held for the last two and one-half years of her twenty-two year service as an employee of the Commonwealth. According to the record, construed in McCrerey's favor, that event occurred in the following context.

For years, the Commonwealth has regulated the conduct of numerous professions and occupations through the activities of eighteen regulatory boards, the members of which are appointed by the Governor of Virginia. Although the actual regulatory authority rests with the boards, DPOR sets regulatory policy, administers regulations established by the boards, provides the boards with staff support, and serves as the administration's liaison with the boards and with the General Assembly. Thus, DPOR plays a central role in the establishment and implementation of the state policy respecting the regulation of professions and occupations.

Under the state employment system, each employee completes a "Position Description" which is then approved by the employee's supervisor. The Position Description which McCrerey prepared for Deputy Administrator for Regulatory Programs defines the chief objectives of the position as follows:

Manages agency program by providing administrative support to regulatory sic supported by the department. Provides leadership, training and guidance to regulatory boards' staff members. Assists administrators in identifying problems and solutions. Coordinates with support activities to assure effective support for board operations. Serves as a member of the Department's senior management staff whose role is to address policy issues affecting the entire agency. This position functions as one of three deputies managing large agency divisions.

(Vaeth Affidavit, January 11, 1996, Ex. 1, PART II, ¶ 11 (emphasis added)).

The Position Description also contains the employee's description (again with the supervisor's approval) of the tasks and duties to be performed by the holder of the position and states the percentage of time spent on each duty starting with the most important duty and concluding with the least important one. According to this section of the Position Description, as completed by McCrerey, the working time of the Deputy Administrator for Regulatory Programs is apportioned as follows:

• 30% is devoted to managing the Regulatory Programs Division;

• 20% is devoted to managing DPOR's senior staff and meeting weekly to discuss issues affecting DPOR including policy development and the budget;

• 15% is devoted to working with the Regulatory Programs Division staff to ensure that policies are responsive and accurate;

• 15% is devoted to developing, monitoring, and evaluating policies and procedures relating to board activities;

• 10% involves oversight of the promulgation, review, and revision of regulations for all of the board to ensure that the regulations are in compliance with the applicable statutes and "to maximize the clarity and consistency of all regulations;" and

• 10% is devoted to coordinating legislative activities.

(Id. ¶ 12.)

The Position Description also reflects that the holder of the Deputy Administrator position is expected to exercise "independence and initiative" in "making critical decisions regarding the Regulatory Programs Division including decisions on non-routine issues and unusual matters for which no precedence has been set." According to the Position Description, the Deputy Administrator and the supervisor discuss "highly sensitive issues" and the position involves substantial communication with others outside the agency, including state and local elected officials, the Assistant Attorney General responsible for providing counsel to DPOR, and other state agencies. (Id. ¶¶ 13, 14.)

McCrerey's affidavit reinforces the significant role that the Deputy Administrator occupies in the operation of DPOR. For example, her affidavit explains that, as Deputy Administrator, her responsibilities included the licensing and regulation of occupations and professions, management of the boards, coordinating legislative activities for the agency, and planning and implementing a customer service process. Although, McCrerey's affidavit says that she served as an "implementor of policy, not its creator," (McCrerey Affidavit, ¶ 3) at deposition, McCrerey described the Deputy Administrator position somewhat differently. Specifically, when McCrerey was asked why she considered herself to have been discharged for partisan political reasons, she responded that:

The most powerful job in the agency outside of Ray's Allen — the Director of DPOR was the person who coordinated the boards. I was in that chair as Deputy Administrator for Regulatory Programs, and Ray saw the boards as partisan in some of their decisions, and he wanted to put someone in that position who would more closely align politically with him.

(McCrerey Deposition at pp. 12-13.) In McCrerey's view, she was discharged so that Allen could give that "powerful job" to Kotvas.

According to McCrerey, the events which prompted her dismissal from the Deputy Administrator position began following the election of the new Republican Governor in November 1993. Specifically, McCrerey points to a letter dated December 9, 1993, which was sent to all at-will state employees, such as McCrerey, in which the Governor-Elect referred to her as "a high-level official of the Wilder the then incumbent Democrat Governor administration" and asked her and other "high-level appointees and employees of the current administration to offer their resignations, to become effective on January 15 the date of his inauguration or thereafter upon acceptance by the Governor." (Plaintiff's Exhibit 1.) That letter also invited such officials to reapply for the jobs they then held. That directive was countermanded by the then incumbent Governor, Douglas Wilder, and hence never took effect.

The new administration took over the Executive Branch of the state government in January 1994 and, in mid-April 1994, Allen assumed the position of Director of DPOR. Thereafter, Allen is alleged to have repeatedly referred to career state employees, including McCrerey, as "Wilder cronies" (McCrerey Affidavit ¶ 19) and to have stated that state employees were going to have "to pay" because Republicans had been kept out of the Governor's mansion for 12 years (Brown Affidavit ¶ 4.)

Also, in April 1994, Kotvas, who had worked with Allen in the 1993 gubernatorial campaign, and who was then not employed, was hired as a temporary employee in the Virginia Port Authority, a division of the Commerce Department. However, Kotvas worked only in DPOR (also a division of the Commerce Department) where he served as an advisor and assistant to Allen. The record reflects that both Allen and Kotvas intended that a permanent position would be found or created for Kotvas.

When Allen introduced Kotvas to the staff of DPOR in April 1994, he allegedly described Kotvas as his "eyes and ears" and then instructed that "anything that Jack asked, the staff were to provide, and anything that Jack said, carried the weight of Ray." Allen also is said to have described Kotvas as his "most trusted advisor" in the future as well as his "closest advisor from the recently concluded gubernatorial campaign."

When Allen took over as Director of DPOR, there were seven employees of DPOR who served at-will and were subject to termination without cause under the Virginia Personnel Act. As Allen's affidavit explains it:

Because it was my intent to seek a reduction of the regulatory burdens on businesses and individuals and to cut back spending by DPOR, I anticipated that I would probably reorganize DPOR and seek to streamline the agency. I anticipated terminating any of

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