Supinger v. Virginia (259 F. Supp. 3d 419, 2017)

MEMORANDUM OPINION

NORMAN K. MOON, UNITED STATES DISTRICT JUDGE

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

The Court will grant Defendants’ motion as to Count I, as Plaintiffs Title VII racial discrimination claim was untimely.

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

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

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

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

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

I. Facts

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

a. Racial Discrimination (Counts I and VI)

Plaintiff was reassigned from the Lynch-burg DMV office to the one in Waynes-boro. plaintiff alleges that this transfer was motivated by racial discrimination because he is married to a woman of a different race,.

i. Status Before Transfer

Plaintiff worked as an Assistant Special Agent in Charge (“ASAC”) in the Appomattox Division of Virginia Department of Motor Vehicles (“DMV”), as a member of Law Enforcement Services. (Dkt. 184-1 ¶ 2). Plaintiffs primary office was located in the lower level of the Lynchburg DMV Customer Service Center (“Lynchburg CSC”). (Dkt. 181-47 at 1). Plaintiff, who is white, was married to a non-white Korean female who worked in the Customer Service Delivery Administration in the upper level of the Lynchburg CSC. (Id.) The two did not interact in the course of their normal business and had worked in the same Lynchburg DMV for 12 years prior to his reassignment. (Id.; dkt. 184-8).

ii. Transfer

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

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

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

b. Title VII Retaliation (Count II)

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

i. EEOC Charges

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

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

ii. Internal Grievances

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

c. First Amendment Retaliation (Count III)

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

i. Subjects of Plaintiffs Speech

1. Coworker Jennifer Dawson’s Behavior

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

Dawson also had two physical confrontations with coworkers. On February 23, 2012, Dawson threw a stack of papers at her supervisor, Special Agent in Charge David Stultz. (Dkt. 184-6 ¶ 35). On September 13, 2012, there was an incident in the women’s bathroom where Dawson shoved or pushed Anastasia Wootten (a Special Agent at the Lynchburg CSC), although the severity and circumstances of this incident are a matter of considerable debate. (See dkt. 181-40 at 10-11, 181-16). As a result of the incident, Wootten, with the support and aid of her supervisors Supinger and Stulz, pursued criminal charges against Dawson. (Dkt. 187-1 ¶ 17). Based on her aforementioned behavior, Supinger felt that Dawson was “an employee who is a danger in the workplace.” (Dkt. 184-43)

2. Reorganization

On June 27, 2012, Hill announced a reorganization of the DMV’s law enforcement divisions. (Dkts. 184-6 ¶ 70; 181-7). Prior to the reorganization, the boundaries of the seven DMV “home divisions” mirrored those of the Virginia Statewide Radio System (“STARS”) operated by the Virginia State Police (“VSP”). (Dkt 184-6 ¶ 76). The reorganization caused the DMV law enforcement divisions to become aligned with the eight DMV Customer Service Management Administration Districts instead of the STARS divisions. (Dkt. 181-63 ¶¶ 5-9). Under the new alignment, a DMV officer’s home division could contain multiple STARS divisions, each with their own dispatch center. (Dkt. 184-6 ¶ 83). DMV law enforcement officers’ radio equipment, however, was programmed to function within a single STARS division. (Id. ¶ 80). After the reorganization, DMV management required officers to change to their radio channels when they entered a new STARS division so that they were communicating with the dispatcher that controlled their geographic region. (Dkts. 184-6 at 87; 181-7). Failure to do so might result in loss of communication or communicating with a dispatch that was geographically remote from the officer’s location. (Dkt. 184-6 ¶¶ 84, 85).

Michael Bolton, the Program Director for STARS, opined on the change at several points. In an email to Stultz in 2010, he expressed concern with DMV’s plan to change its boundaries away from the STARS ones. (Dkts. 181-5). However, he also clarified in 2012 that training agents to change their radios as they crossed STARS boundaries was a possible solution to the problems presented. (Dkt. 181-6; see also dkt. 192-11 ¶ 5).

Additionally, as a result of the reorganization, Plaintiffs Appomattox Division was merged with the Roanoke Division and Supinger was to be transferred to the Fuels Tax Enforcement unit. (Dkt. 93-1). Supinger complained of this transfer and was granted a reassignment to the Hampton Division instead. (Id.) Finally, Supinger expressed concern that the reorganization would result in skewed supervisor-to-employee ratios, resulting from too many supervisors in certain locations. (See, e.g., dkt. 184-42).

3. FWA Hotline

On October 11, 2011, Supinger filed an anonymous Fraud, Waste, and Abuse (FWA) complaint regarding Dawson’s conduct to the “Hotline” run by the Virginia Department of State Internal Audit (“DSIA”). (Dkt. 184-18). The complaint primarily concerned the threat to others in the office posed by Dawson due to her unstable mental state. (Id.) The Hotline complaint was referred to James Womack, Director of Internal Audit at DMV, who assigned investigation of the case to Cheryl Sanders. (Dkt. 188-8 at 31).

Sanders conducted the investigation by reviewing documents and interviewing both Stultz and Hill. (Dkt. 184-39 at P3). In coordination with Tim Sadler, Hotline Coordinator at DSIA, Sanders narrowed the scope of the investigation to complaints that Dawson was not passing along phone messages and was absent from her desk, rather than investigating allegations that she was a danger to herself and coworkers. (See dkt. 188-2). The report concluded that Dawson’s management was sufficiently addressing the phone issues. (Dkt. 184-39 at P8).

Sanders decided that the allegations regarding Dawson as a danger to others “lacked specificity” but decided to discuss them with Dawson’s supervisors in interviews to see if they were aware of perceived problems. (Dkt. 184-39 at P3.) The report found that management was addressing these “performance issues” and that Sanders did not find any evidence that Dawson “placed co-workers at risk of physical harm,” or that she was “destroying morale or damaging productivity.” (Id. at P4). Plaintiff, however, finds several issues with this conclusion. Individuals associated • with the Hotline process have stated that it is not the intended role of the Hotline to address concerns such as-the potential safety threat posed by Dawson. (Dkts. 188-8 at 54; 191-6 at 111). Furthermore, Womack had. instructed Sanders to reword portions of her summary of her interview with Stultz in which Stultz described Dawson’s erratic and potentially harmful behavior. (Dkt. 191-6 at 111-114).

After receiving the report, Stultz contacted Sadler to communicate his belief that the investigation had not been adequately performed, particularly with respect to the Dawson safety issue. (Dkt. 188-7 at 37). Sadler considered Stultz’s objections and conducted additional investigations of his own, but ultimately concluded that the report was adequate as written. (Id. at 39).

4. Obstruction of Justice

Plaintiff believed there was an obstruction of justice with respect to Commonwealth Attorney Kelly Osterbind’s prosecution of the incident occurring between Wootten and Dawson in the women’s bathroom. Plaintiff primarily objected to a Hill phone call with Osterbind discussing the case. Hill told Osterbind that he, Holcomb and Penny did not believe the incident constituted an assault and battery. (Dkt. 187-21 at 361-363). Senior Special Agent Andrew Hicks told Plaintiff that Osterbind had described the conversation to Hicks as “unpleasant.” (Dkt. 187-34 at 141-42). However, Osterbind has stated that the conversation was “pleasant and professional.” (Dkt. 181-20). Tom Penny also contacted Osterbind to determine what “Wootten told Ms. Osterbine[sic] ... concerning her encounter with Jennifer Dawson.” (Dkt. 187-39). In that meeting, he told Osterbind that the incident was not an assault in his opinion, and “expressed concern that the facts gathered ... indicated a possibility that the criminal justice system had been manipulated.” (Id.) Finally, Hill’s assistant Ronna Howard contacted Osterbind upon direction of. Hill in order to¡ investigate the claim that Osterbind had been threatened into not prosecuting Dawson by Hill and other DMV officials. (Dkts. 187-35; 187-21 at 361-363). Dawson was eventually tried in a bench trial and found .not guilty. (Dkt. 188-4).

ii. Communications with Public Officials

Having discussed the concérns of Su-pinger that may constitute constitutionally protected speech under his First Amendment retaliation claim, the Court now turns to discuss whether and when these complaints were communicated with others.

1. April 27, 2012 — Meeting with Senator Steve Newman

Supinger, using his private car, drove himself, Stultz, Hicks, and Wootten to meet with Virginia Senator Steve Newman. (Dkt. 184-22 at ECF 6). The parties discussed the “unsafe environment” created by Dawson and other Dawson-related concerns. (Id.) Supinger shared his belief that his transfer to Waynesboro had been in retaliation for speaking out about Dawson at a Charlottesville meeting with Holcomb. (Id.) Plaintiff also raised the concern that the transfer resulted in wasted taxpayer money as a result of the increased commute. (Id.; dkt. 184-2 at 103) Finally, Supinger expressed his concern that he was being retaliated against for filing an FWA Hotline complaint. (Id.; Dkt. 191-3 at 106). Near the end of the meeting, Senator Newman suggested that Stultz “file a grievance for any personnel actions.” (Dkt. 184-22 at ECF 6).

2.May 14, 2012 — Meeting with Police Benevolent Association (“PBA”)

Supinger and other officers held a conference call with Police Benevolent Association Executive Director Sean McGowan. (Dkt. 184-1 ¶ 12). In the call, Supinger discussed his concerns 'with' Dawson, as well as alleged,fraudulent manipulation of his Hotline complaint that resulted in no appropriate action being taken against Dawson. (Id.)

3.September 14, 2012 — Email to Senator Newman

Supinger sent an unsolicited email to Senator Steve Newman from his private account following up on the concerns discussed in their April meeting. (Dkt. 184-42), “First and most importantly,” the email discussed Dawson’s conduct. (Id. at ECF 1). Second, the. email discussed STARS and the reorganization. Specifically, the email noted how the reorganization would result in Supinger’s transfer to Hampton, which would place him under financial strain and made it so the “transfer to Waynesboro is no longer an issue.” (Id.) The email also mentioned the increased supervisor-to-employee ratio that would result from the reorganization. (Id. at ECF 2). Senator Newman’s assistant replied to. the .email by stating that Senator Newman would pass the concerns along to Commissioner Holcomb, but that “[Senator Newman] does not interfere with personnel matters in state agencies.” (Id. at ECF 2-3).

4. September 16, 2012 — First Email to Governor McDonnell.

Supinger sent an unsolicited email to Governor McDonnell from his private account. (Dkt. 184-43). Although Supinger initially mentioned retaliation for filing his Hotline complaint, he then expressly stated:- “I am not writing regarding these issues though, but an employee who is a danger in the workplace.” (Id. at ECF 1) (emphasis in original). The email then went on to discuss Dawson’s behavior in-depth. (Id. at ECF 1-2). Supinger also expressed his concern that DMV management would retaliate against him and Wootten, and was obstructing justice by interfering in the criminal case against Dawson. (Id. at ECF 2).

5. September 24, 2012 and October 5, 2012 — Emails to Various Elected Officials

On September 24, 2012, Supinger sent an identical email to several Virginia elected officials, including: Delegates Habeeb, May, Rust, Scott, Garrett; and Senators Favola, Carrico, and Puckett. (Dkts. 184-44-184-61). The emails focused on waste issues related to the reorganization. First, Supinger opined that the reorganization would be inefficient because significant money had been spent creating the STARS system boundaries, and now DMV was removing itself from alignment with the STARS boundaries. (See id.) Second, Supinger worried about waste resulting from skewed supervisor-to-employee ratios. (See id.)

Supinger‘sent a follow-up email to each of these officials on October 5th. (See Dkts. 184-44 to 184-51). The stated purpose of these emails was to “clear the record”'in case the officials thought he was just a disgruntled employee bringing up personnel issues. (See, e.g., dkt. 42 at ECF 2-3). Supinger reiterated that his concern regarded waste resulting from the reorganization, specifically the supervisor ratios. (Id.) Supinger also detailed some of his communications with supervisors and allegedly retaliatory actions taken against him. (Id.)

6. October 4, 2012 — Second Email to Governor McDonnéll

This email primarily addressed Supinger’s obstruction of justice concerns. (Dkt. 184-52). Supinger explained the communications between DMV officials and Oster-bind which he believed constituted obstruction of justice. (Id.) He also defended his right to contact the Governor to bring up these concerns after he had been cautioned against doing so by Holcomb. (Id.)

7. October 12, 2012 — Meeting with Senator Creigh Deeds

Supinger, other members of the Lynch-burg CSC, and members of the PBA met with Senator Creigh deeds to discuss “public concerns.” (Dkt. 188-12 ¶-5). Speaking primarily through Stultz, the group discussed “safely concerns, failures in delivery of services to citizens; inappropriate and hostile actions; violations of law and policy; impropriety and malfeasance of government leadership.” (Id. ¶ 8). The parties specifically discussed: manipulation, of the FWA Hotline, safety issues with the new STARS arrangement, and waste issues with the reorganization and new STARS arrangement. (Id. ¶¶.11, 13, 16; dkt. 184-1 ¶ 13).

8. December 19, 2012 — Letter to Governor McDonnell

Supinger sent a letter to Governor McDonnell on December 19, his third correspondence with McDonnell. The letter primarily concerned retaliation against Supinger and stated “it .is most important that I clear my name with you.” (Dkt. 184-53 at ECF 1) (emphasis, removed), Supinger defended his characterization of the Osterbind situation, attempting to rebut an investigation by the PBA which “basically states that I am a liar ánd fabricated the entire, incident.” (Id.) Supinger also suggested that some obstruction might still be occurring even if Osterbind’s characterization of her conversation with DMV officials was correct. (Id.) Supinger further criticized Osterbind for not informing him'directly of the nature of her conversations with DMV officials. (Id. at ECF 3). Finally, Supinger cast doubt about whether DMV’s investigation into potential obstruction of justice 'was sufficiently unbiased and thorough. (Id. at ECF 3-4).

9. February 5, 2013 — Third Email to Governor McDonnell

Plaintiff sent a third email (and fourth communication) to Governor McDonnell on February 5th, loosely related to the Oster-bind investigation. (Dkt. 133-13). With regard to Osterbind, Plaintiff complained that the DMV had “leaked” Dawson’s personnel file to the defense counsel. (Id.) Plaintiffs email primarily concerned fears that he was being retaliated against and that an investigation was being conducted in order to fabricate charges against him and his colleagues. (Id.)

d. Termination

Plaintiff was suspended by the DMV on February 28, 2013. (Dkt. 184-1 ¶ 6). Plaintiff was terminated on April 9, 2013. (Dkt. 184-1 ¶ 7). On that day, the DMV provided five written notices as rationales for his termination, described below.

i.Investigation into Dawson

The first written notice alleges that Su-pinger failed to “impartially discharge” his duties by conducting a biased investigation into the Dawson-Wootten incident. (Dkt. 181-24). Generally, the written notice states that he erred by investigating Dawson knowing that he had personal animus towards her, by failing to interview her during the investigation, and by including irrelevant personal grievances in his report. (Id.) At the time of the investigation, Supinger was under orders not to talk with Dawson, so he could not interview her during the course of his investigation into her own conduct. (Id.) Supinger also failed to conduct a formal interview of Wootten— Dawson’s primary antagonist in the incident at question — and accepted her word at face value instead. (Id.) Supinger’s report also included allegations about Dawson conduct dating back years, much of which was only extremely tangentially related to the Dawson-Wootten incident at issue. (Id.) Finally, the written notice alleges that the report was inaccurate and contradicted by other evidence in several places. (Id.)

ii.“Joke” Employee Work Profile for Dawson

The second written notice relates to Su-pinger’s circulation of a “joke” Employee Work Profile (“EWP”) for Dawson. (Dkt. 181-25). Supinger had made demeaning edits to the EWP for Dawson’s position, including adding the requirement of “mental stability” and the duties of cleaning the office and making coffee. (Id.) Supinger himself admitted that the EWP edits were a “joke.” (Id.; dkt. 181-38 at 127).

iii.Offensive Email Regarding Dawson

In regards to an upcoming meeting between Dawson and Hill, Supinger sent an email to several subordinates stating that “[o]ne can only imagine what falsehoods [Dawson] is planning to relay to [Hill]” and that he “thought each of you should know what we are up against.” (Dkt. 181-11). The written notice found this email was a violation of Plaintiffs duty to communicate with subordinates in a matter that builds trust and improves morale, and may have constituted retaliation against Dawson. (Dkt. 181-26).

iv.“Psych-Ops” Emails

Believing that management was reviewing his emails, Plaintiff admitted to sending emails that he considered “pysch-ops” in order to “get a rise out of’ management. (Dkt. 181-38 at 136). A written notice was issued on the basis that sending emails “intended to disrupt and antagonize” was “unprofessional” and that drafting such emails was “an abuse of state time.” (Dkt. 181-27).

v. Viewing of Confidential . Information

The final written notice relates to Su-pinger’s viewing of another DMV’s employee’s performance review. (Dkt. 181— 44). Supinger used the information obtained from that employee’s review to file a grievance over his own, lower-than-expected, performance, score. (Id.) Supinger claimed that he viewed the evaluation score accidentally as it was on the top page. (Id.) However, this assertion conflicted with his supervisor Roger Stone’s observation that the evaluation score was found near the end of the stapled packet. (Id.) Stone found fault’ in Supinger’s actions both for viewing another employee’s confidential performance evaluation and for lying about how he came to view the information. (Id.)

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 ... [ojnly 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505. 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).

“When cross-motions for summary judgment are before a court, the court examines each motion separately, employing'the familiar standard under Rule 56 of the Federal Rules of Civil Procedure.” Desmond v. PNGI Charles Town Gaming, L.L.C., 630 F.3d 351, 354 (4th Cir. 2011).

III. Discussion

a. Count I — Title VII Racial Discrimination

Plaintiff brings a claim of racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. related to his transfer to Waynesboro. Plaintiff alleges that he was transferred to separate him from working in the same office as wife because they are of different races. However, béeause Plaintiff failed to timely file an EEOC charge related to this alleged discriminatory act, Defendants’ motion will be granted as to Count I.

In Virginia, an EEOC charge must be brought within 300 days of the alleged discrimination. See 42 U.S.C. § 2000e-5(e)(1); Edelman v. Lynchburg Coll., 300 F.3d 400, 404 (4th Cir. 2002). If an EEOC charge is not timely filed, the underlying Title VII claim will be procedurally barred. Id. Here, the parties contest the date of both the discrimination and the filing of the EEOC charge.

As to the date of the discrimination, Defendants argue it occurred on the date of Plaintiffs transfer to Waynesboro: March 16, 2012. Plaintiff, however,, argues that the discrimination was listed as a “continuing action” in his EEOC charge and persisted up until January 13, 2013. (See dkt. 187-37).

Plaintiffs assertion'in' his EEOC charge that his discrimination was continuous is not legally dispositive. Instead, “district courts have examined the facts of each case to determine whether a continuing policy of discrimination is allegedly practiced or whether the situation involves only a series of discrete decisions.” Soble v. Univ. of Maryland, 572 F.Supp. 1509, 1515 (D. Md. 1983). Under this examination, “current effects, without a present act of discrimination, do not constitute a continuing violation.” Sanders v. Duke Univ., 538 F.Supp. 1143, 1146 (M.D.N.C. 1982); see also United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) (“[E]mphasis should not be placed on mere continuity; the critical question is whether any present violation exists.”). In Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the Supreme Court specified that “discrete acts” include: “termination, failure to promote, denial of transfer, or refusal to hire.” Id. at 114, 122 S.Ct. 2061.

The alleged discriminatory act here is Plaintiffs reassignment to Waynesboro (see dkt. 187-37), which is the type of “discrete” act contemplated by Morgan. Under Morgan, Plaintiffs allegations of subsequent wrongful acts cannot' resuscitate any claim related to the discrete transfer. See Morgan, 536 U.S. at 113, 122 S.Ct. 2061. Instead, “the time for filing a charge of employment discrimination with the EEOC ,.. begins when the discriminatory act occurs.” Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 621, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007); see also Mezu v. Morgan State Univ., 367 Fed.Appx. 385, 388 (4th Cir. 2010) (“The time the initial employment decision was made and communicated triggered .the commencement of the limitations period.”). Accordingly, the violation is not. continuous and Plaintiffs 300-day window in which to file his EEOC charge.began on March 16, 2012 and ended on January 11, 2013.

The evidence before the Court shows that Plaintiff filed an EEOC racial discrimination charge on December 10, 2013 — well outside of the 300-day window. (Dkt. 181— 45). Plaintiff, , however, argues that his EEOC intake questionnaire filed January 17, 2013 should be counted as his charge, and that the limitations period should have been equitably tolled, given the particular circumstances of its filing. (See dkt. 181—48). While Plaintiff is generally correct that a court may construe an EEOC questionnaire as a charge or apply equitable tolling to the filing of an EEOC charge, neither theory would apply here. Plaintiffs questionnaire, filed January 17, 2013, was untimely even if construed as a charge. Similarly, equitable tolling does not apply because the acts. that, form the basis of Plaintiffs tolling arguments themselves fell outside of the 300-day period. Accordingly, Plaintiffs racial discrimination claim was not timely filed with the EEOC and is procedurally barred. Defendants’ motion as to this claim will be granted,

b. Count VI — 42 U.S.C. §§ 1981 and 1983 Racial Discrimination

Plaintiff brings a claim of racial discrimination under 42 U.S.C. § 1981, which grants all persons within the jurisdiction of the United States “the same right ... to make and enforce contracts ... as is enjoyed by white citizens,” and 42 U.S.C. § 1983. Plaintiffs racial discrimination claim under 42 U.S.C. §§ 1981 and 1983 is not bound by the same timeliness requirements as his Title VII claim. However, the claims share the same substantive analysis. See Supinger v. Virginia, 167 F.Supp.3d 795, 817 (W. D. Va. 2016) (“The elements of a prima facie case under § 1981 mirror the elements required to establish a prima facie case under.Title VII.” (citing Ford v. GE Lighting, LLC, 121 Fed.Appx. 1, 5 (4th Cir. 2005) (per curiam))). The Court analyzes the merits of Plaintiffs § 1983 racial discrimination claim under the McDonnell Douglas burden shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

1. Prima Facie Case

To prevail on a § 1983 racial 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. See Holiday v. New Hanover Cty. Registrar of Deeds, 317 Fed.Appx. 344, 345 (4th Cir. 2009) (citing Williams v. Cerberonics, Inc., 871 F.2d 452, 455 (4th Cir. 1989)). The second and fourth elements are. disputed by the parties. However, for the purposes of this opinion, the Court will assume that Plaintiff has made out a prima facie case for racial discrimination and will proceed to the next stage of the McDonnell Douglas burden shifting framework.

2. Non-Discriminatory Reasons

Under the McDonnell Douglas burden-shifting framework, Defendants have the burden of establishing “some legitimate, non-discriminatory reason” for the adverse action. See McDonnell Douglas, 411 U.S. at 803, 93 S.Ct. 1817. Defendants assert that the non-discriminatory reasons for the transfer were to. comply with the DMV’s nepotism policy and to fill a leadership void in the Waynesboro office. (See dkt. 181-13), Under the “spirit” of the nepotism policy, Plaintiff was transferred to avoid having him work in the same office as his wife. (Id.) Defendants also justified the move on the basis of a leadership void in the Waynesboro office created by Stovall’s departure. (Id.) Thus, transferring an ASAC such as Plaintiff to the Waynesboro office filled a legitimate “business need.” (Id.) The reasons offered by Defendants satisfy their burden under this phase of the McDonnell Douglas framework.

3. Pretext

Because the Defendants have met their burden to produce legitimate, non-discriminatory reasons for Plaintiffs transfer, “the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the employer’s stated reasons ‘were not its true reasons, but were a pretext for discrimination.’” Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). At this stage, the burden to demonstrate pretext “merges with the ultimate burden of persuading the court that [the plaintiff], has been the victim of intentional discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). A “plaintiff may establish pretext by proving that the defendant’s explanation for an employment decision is ‘unworthy of credence’ or that the defendant’s explanation is false.” Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 269 (4th Cir. 2005) (quoting Reeves, 530 U.S. at 147, 120 S.Ct. 2097). However, “the factfinder’s rejection of the employer’s legitimate, nondiscriminatory reason for its action does not compel jüdgmént for the plaintiff.” Reeves, 530 U.S. at 146, 120 S.Ct. 2097. Rather, “it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” Id. at 147, 120 S.Ct. 2097. Thus, “[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.” Id. In the end, though, the plaintiff “bears the ultimate burden of persuasion.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

In order to show pretext, Plaintiff argues that: (1) the timing of the transfer was suspicious, and (2) the justification given for the transfer was not applied to transfer other, similarly situated individuals. Plaintiffs argument that the timing of Stovall’s transfer out of Waynesboro— which justified Plaintiffs own transfer— was suspicious is well taken. Stovall expressed surprise at the abrupt timing of the transfer. (Dkt. 187-7 at 41). Further, the transfer was ordered at 6:00 a.m. the morning immediately following a meeting in Charlottesville between Holcomb and Supinger. (Dkt. 187-8 at 73). Despite the fact that Stovall had previously requested the transfer, he believed that the transfer had something to do with tensions in Lynchburg and the meeting with Holcomb and Supinger in Charlottesville. (Id. at 72-74).

Plaintiff also validly argues that the nepotism policy justification for his transfer was pretextual because it was not applied to other related individuals. Plaintiffs transfer was only done in the “spirit” of the nepotism policy. Thus, Plaintiff adequately established that similarly situated individuals existed when he produced evidence of other couples whose working situations could be considered in violation of the “spirit” of the policy, but who were not transferred as Plaintiff was. The nepotism policy also did not dictate Supinger’s transfer, but merely recommended it. Plaintiff thus successfully raises the inference of pretext by demonstrating that he was transferred on the basis of a policy that did not strictly apply to him and that had not been applied in the same manner to similarly situated individuals.

This conclusion, however is only sufficient to permit the factfinder to draw the inference of unlawful discrimination. See Reeves, 530 U.S. at 146-147, 120 S.Ct. 2097; Hicks, 509 U.S. at 511, 113 S.Ct. 2742. Absolutely no evidence in the record supports the inference that the transfer was due to racial discrimination over Plaintiffs bi-racial marriage. Plaintiff himself could not articulate why his transfer was not merely suspicious in general, but actually pretext for racial discrimination. (See dkt. 184-2 at 10-13). Plaintiffs own evidence, in fact, supports a different inference — that plaintiff was transferred because of something that occurred the previous day in a- meeting with Holcomb in Charlottesville. (See dkts. 184-3 at ECF 2-3 (“I find it suspicious that this transfer happens the very next morning after I. spoke to you about Jennifer Dawson.”); 187-8 at 73-74); see Reeves, 530 U.S. at 148, 120 S.Ct. 2097 (“For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision.... ”). Further, the fact that Plaintiff and his wife had worked in the same location for many years makes it extremely unlikely that the DMV would suddenly decide to' discriminate against Plaintiff on the basis of his biracial marriage rather than in reaction to something that occurred at a meeting the previous day.

The proximity of the transfer to a contentious conversation with Commissioner Holcomb may indeed be suspicious, but the record establishes that the conversation had nothing to do with Plaintiffs wife or marriage. While the offered reasons could have been pretext for something else, there is no evidence on the record to even create a slight inference that the reasons were pretext for racial discrimination. Plaintiff has failed to present evidence from which a reasonable factfinder could infer that unlawful racial discrimination occurred.

c. Count II — Title VII Retaliation

Plaintiff alleges a Title VII retaliation claim stemming from his termination. Plaintiff argues that he was terminated in retaliation for filing EEOC charges and internal grievances with the DMV.'

i. Prima Facie Case

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).

The parties do not appear to contest whether Plaintiff has made out a prima facie case, and the Court will 'assume that Plaintiff has for the purposes of this opinion. Instead, the parties dispute whether Defendants’ proffered non-discriminatory reasons are pretextual.

ii. Valid, Non-Discriminatory Reasons

Defendants may rebut Plaintiffs prima facie case by producing a legitimate and non-retaliatory basis for Plaintiffs termination. See Laing v. Fed. Exp. Corp., 703 F.3d 713, 719 (4th Cir. 2013). Defendants have produced several non-retaliatory reasons, evidenced by five disciplinary written notices given to Plaintiff prior to his dismissal. Defendants accurately summarize the allegations in these written notices as the following justifications for dismissal: “(1) Supinger acted improperly by needlessly forcing a hasty criminal investigation against Dawson despite his well-established animus against her; (2) forwarded to his subordinates a .demeaning mock EWP of Dawson that encapsulated his belief that she suffered from mental problems; (3) accessed a coworker’s confidential information without authorization in order to build his own grievance against DMV; (4) sent an email to subordinates that accused Dawson of spreading ‘falsehoods’ in an attempt to ostracize her further; and (5) sent emails designed specifically to ‘get a rise out’ of management.” (Dkt. 182 at 13). These proffered nondiscriminatory reasons, supported by the evidence on the record, are sufficient to rebut Plaintiff’s prima facie case and shift the burden back to the Plaintiff to prove that these reasons’ were pretext for retaliation.

iii. Pretext

At the pretext stage, Plaintiff must'establish “both that the [employer’s] reason was false and that [retaliation] was the real reason for the challenged conduct.” Foster, 787 F.3d at 252 (quoting Jiminez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995)). In evaluating whether a plaintiff can show that these reasons were pretéxtual, the Court is not called upon to judge “whether the reason was wise, fair, or even correct, ultimately.” Dugan v. Albemarle Cty. Sch. Bd., 293 F.3d 716, 722 (4th Cir. 2002). If the record shows Defendants “honestly believed” Plaintiff deserved to be discharged, then pretext is absent, even if Defendants were wrong or mistaken about the underlying facts. Holland v. Washington Homes, Inc., 487 F.3d 208, 217-18 (4th Cir. 2007). Further, the “real reason” must be a “but-for” cause of the adverse action. See Foster, 787 F.3d at 252.

Plaintiff first attempts to' show pretext by attacking the legitimacy of the investigation done by Thomas Penny, Director of Fuels Tax for the DMY. This investigation produced much of the evidence contained in the written notices justifying his termination. Plaintiff argues that the presence of the investigation itself is evidence of pretext because it shows the Defendants were hunting for reasons to fire Plaintiff. Like in Taylor v. Republic Servs., Inc., 968 F.Supp.2d 768 (E.D. Va. 2013), Plaintiff argues that Penny .investigated him for bringing a complaint rather than investigating the complaint itself. However, this reasoning is not supported by the facts. Unlike in Taylor, the record demonstrates that Penny did investigate Supinger’s'com-plaints, although he may not have reached the conclusion that Supinger desired. (Dkts. 181-29, 181-30). However, during the course of his investigation into Dawson, Penny also uncovered potential wrongdoing by Supinger and others at the Lynchburg CSC. (Dkt. 181-64 ¶ 6). The fact that a DMV investigation did not find evidence' of Dawson’s threat but instead found evidence of Plaintiffs own wrongdoing does not amount to pretext.

Plaintiff also argues that the Penny investigation was biased. In support of this assertion, Plaintiff offers evidence that Penny (1) was controlled by the people he was supposed to be investigating, (2) at times turned off his recording device, (3) unfairly focused his investigation on Plaintiffs wrongdoing rather than Dawson’s. N,one of these arguments are persuasive. The mere fact that Penny was ultimately supervised by Hill is insufficient evidence of bias, particularly when his investigations are thoroughly documented and when Plaintiff does not deny, the veracity of the interview transcripts or emails it uncovered. The; evidence of Penny turning off his recording device, quite simply, is hearsay and will not be considered by the Court on a motion for summary judgment. Finally, as discussed above, Su-pinger’s complaints were fully investigated by Penny. The fact that Supinger was also, investigated as a result does not undermine that fact or make Penny’s investigation biased. -In sum, Plaintiffs attempts to inject uncertainty or bias into Penny’s investigation are unsuccessful.

Plaintiff also attacks the written notices themselves, arguing summarily that they are not “legitimate.” He alleges that the various -written notices were either untrue or so untimely as to raise the inference of pretext. He also argues that none of the conduct would have warranted termination even if it were true. These allegations are supported primarily by declarations by Plaintiff and Stultz. Each of the written notices is considered in turn.

1. Supinger’s Biased Investigation into Dawson

The first written notice alleges that Su-pinger failed to “impartially discharge” his duties by investigating Dawson knowing that he had personal animus towards her, and by conducting the investigation in a biased manner. (Dkt. 181-24). Plaintiff argues that he was placed in an impossible position; he was tasked with investigating Dawson by Stultz, while simultaneously being forbidden from contacting Dawson because of their rocky relationship. (See dkt. 187-2 ¶ 108). He could not have re-cused himself from the investigation, he argues, because policy dictated that he investigate the incident immediately. (See dkts. 187 at 3 n.2; 187-2 ¶¶ 106-07, 117). Supinger also contends that the DMV officials acted inconsistently in how they punished Stultz and Supinger, punishing Stultz for ordering the investigation at all, while punishing Supinger for conducting it poorly. (See dkt. 187 at 13). Further, he argues that Hill knew he was assigned to the Dawson investigation, yet did not act to remove him. (See dkt. 187-2 ¶¶ 118-19).

These arguments, even if taken as true, do not make the written notice unjustified. The primary charge in the written notice is that Plaintiff acted partially in attempting to conduct an investigation of a coworker towards whom he had personal animus. That he was constrained from interviewing Dawson is evidence in support of the fact that he should riot have undertaken the assignment or should have asked to be removed from it. Similarly, it is perfectly consistent to punish Stultz for ordering Supinger to conduct the investigation, while punishing Supinger for failing to re-cuse himself and conducting it in a biased manner. Finally, Hill’s failure to remove Supinger does not excuse -Supinger’s own conduct, particularly when Supinger had much greater knowledge of his potential bias towards Dawson than did Hill.

Additionally, Plaintiffs evidence does not address another fault in his conduct, that he used his investigation to air his own unrelated grievances. For instance, in a report supposedly about Dawson’s alleged assault, Plaintiff found cause to mention: (1) Dawson’s criticism of his management style, (2) his belief that he would be disciplined for assisting Wootten in bringing charges, (3) his belief that obstruction of justice was ordered by his superiors, (4) his transfer to Hampton, and (5) his belief that he was being retaliated against for filing the Hotline complaint, among other inappropriate topics. (See dkt. 181-17 at 26-31).

Overall, Plaintiffs arguments do nothing to detract from the fact that he investigated a coworker, knowing he had substantial negative history with her that would prevent him from carrying out his duties in an impartial manner, and resulting in a biased report that referenced numerous unrelated grievances. Plaintiff has not raised the inference that terminating him for such an offense was pretextual.

2.“Joke” Employee Work Profile for Dawson

The second written notice relates to Supinger’s circulation of a “joke” EWP for Dawson in which he added the job requirement of “mental stability” and additional duties of making coffee and cleaning the office. (Dkt. 181-25). Plaintiff argues that the written notice is pretex-tual because it was not timely. That is, the conduct occurred years prior, but only became subject to discipline after he engaged in various protected activities. Further, he argues that he was already punished for the incident when it actually occurred, and the written notice was seeking to resurrect already-resolved wrongdoing as a pretext for retaliation.

Again, the facts do not support Plaintiffs argument. While the email may have been sent in October 2011, DMV officials did not become aware of the email until October 2012 (dkt. 187-1 ¶ 10), and the investigation into Plaintiffs conduct— wherein Plaintiff admitted the EWP was a “joke” — was not concluded until February 2013 (dkt. 181-38 at 127). Thus, the gap between the wrongful conduct and punishment is explained by a lack of timely information to the DMV. Plaintiff also does not cite sufficient evidence for the proposition that he was already punished for sending the joke EWP. Plaintiff cites to an allegation letter sent in April of 2012 that accused him of harassment towards Dawson. (Dkt. 187-1 ¶ 10). However, the letter contains no mention of the joke EWP and was issued several months after the email was sent. (Dkt. 187-17). Further, Plaintiff himself alleges that Defendants only became aware of the EWP when he revealed it to the DMV in' October of 2012 — months after the allegation letter. (Dkt. 187-1 ¶ 10). The evidence does not support an inference that this written notice was pretextual.

3.Offensive Email Regarding Dawson

In regards to an upcoming meeting between Dawson and Hill, Supinger sent an email to several subordinates stating that “[o]ne can only imagine what falsehoods [Dawson] is planning to relay to [Hill]” and that he “thought each of you should know what we are up against.” (Dkt. 181-11). Plaintiff contends that he had already been disciplined by Stultz for sending the email, and thus further punishment was unwarranted and pretextual. (Dkt. 187-2 ¶ 90). However, during Penny’s investigation, Stultz denied ever having seen the email, thus precluding the possibility of him disciplining Supinger on the basis of it. (Dkt. 192-6 at 209-10). Because the written notice was based on information from Penny’s investigation, it was reasonable for Hill to conclude that Supinger had not been disciplined by Stultz for the email. Thus, Plaintiff has not raised an inference of pretext with regard to this written notice.

4.“Psych-Ops” Emails

Believing that management was reviewing his emails, Plaintiff admitted to send-mg emails that he considered “pysch-ops” in order to “get a rise Out of’ management. (Dkt. 181-38 at 136). Plaintiffs only defense to this charge .was that he was not being truthful to Penny when he made his statement and was acting out on his frustration after being “antagonized” by Penny during the interview process. (Dkt. 187-2 ¶ 12). Plaintiffs subjective belief in the truth of the statements is irrelevant, as the inquiry here is into what the relevant deci-sionmakers reasonably believed. Plaintiffs superiors could have" believed the truth of his own self-incriminating statement because there was no evidence at the time to undercut its veracity. .

5. Viewing of Confidential Information

The final written notice relates to Su-pinger’s alleged viewing of another DMV’s employee’s performance review. (Dkt. 181— 44). There is a factual issue in contention as to whether Supinger was able to view the performance evaluation from just glancing at the packet of papers, rather than searching through it. The parties agree that Supinger had the duty of opening mail to determine where it should go, so Supinger would not have committed a wrongdoing had the information been visible from a cursory examination of the first page.

Whether Supinger actually wrongfully viewed confidential information is not the inquiry; rather, the Court must instead ask whether the relevant decisionmaker (Stone) “honestly believed” that he did. See Holland, 487 F.3d at 217-18. Stone’s personal observation of the layout of the packet gave him a sufficient basis on which to reasonably believe that Plaintiff had improperly viewed confidential information. (See dkt. 181-43). Stone then spoke with Supinger about the alleged wrongdoing and filed a formal.report stating his belief that Supinger had viewed confidential information. (Id.) Such actions are highly consistent with the notion that Stone authored the written notice because he honestly believed Supinger had viewed confidential information improperly. Further, there is no evidence supporting Plaintiffs alternative, explanation — that Stone terminated Supinger because of Su-pinger’s grievances — because the record lacks information showing that Stone was aware of Plaintiffs grievances or EEOC charges except for the grievance containing the confidential information. (Dkt. 181—35 ¶ 3).

In order for this written notice to be pretext for retaliation, a factfinder must infer that Stone decided to terminate Plaintiff because he filed a grievance challenging his performance review, rather than because that grievance was based on the confidential information of a coworker thát Stone believed Supinger had lied about obtaining. Further, the factfinder must infer that Stone’s 'subsequent conversation with Supinger and the memorandum regarding the confidential information were insincere ruses designed to -disguise Stone’s true retaliatory motivation. The Court does not find that such inferences are reasonable and holds that this written notice was not pretextual.

iv. Conclusion

The Court will grant Defendants’ motion for summary judgment on the ground that Plaintiff has not carried his burden under the pretext stage of the McDonnell Douglas framework. Defendants have offered five, well-documented reasons for Plaintiffs termination. These alleged wrongdoings were timely acted upon following an investigation into Plaintiffs conduct, and the'investigation itself was spurred by the troubling Dawson-Wootten incident that occurred outside' of Defendants’ control. Rather than believing the straightforward explanation that Plaintiff was terminated as a result of the information discovered in the investigation, Plaintiff asks a factfinder to infer that he was terminated in retaliation for a series of grievances which dated back years.

Plaintiff, in attempting to rebut Defendants’ offered explanations, has failed to present evidence overcoming the relevant standard of whether the' relevant decision-makers “honestly believed” that Plaintiff engaged in the specified conduct that was worthy of termination. See Holland, 487 F.3d at 217-18. Instead, Plaintiff has merely offered ineffectual argument — unsupported by substantial evidence — theorizing why the notices might bp pretextual. He has failed, however, to offer evidence either creating the inference of pretext or suggesting that Plaintiff was terminated because of his filing of grievances. Based on the available record, a reasonable fact-finder would hold that the relevant deci-sionmakers here honestly believed that Plaintiff should be terminated for his wrongdoings described in the written notices; Thus, Plaintiff has failed to show that Defendants’ proffered reasons were pretext for' retaliation, and Defendants’ motion as to Count II will be granted.

d. Count III — First Amendment Retaliation

Plaintiff brings a claim under 42 U.S.C. § 1983 alleging that Defendants terminated his employment in retaliation for his exercise of protected First Amendment rights. The Court concludes that the Defendants against whom Plaintiff has brought this claim — Holcomb, Hill, Thorpe, Boswell and Penny — are entitled to qualified immunity.

i. Scope of Complaint

As an initial matter, Defendants argue that Plaintiff has improperly alleged for the first time on summary judgment that Plaintiff spoke to the PBA and to Senator Deeds regarding the STARS divisions and reorganization. Defendants argue that because this speech was not mentioned in the complaint, it cannot be part of Plaintiffs speech considered in -his First Amendment retaliation' claim. After a review, of the record, the Court concludes that Defendant is Correct ’with' respect to the PBA meeting, but not with respect to the Deeds meeting.

“[I]t is well established that a plaintiff may not raise new claims after discovery has begun without amending his complaint.” U.S. ex rel. Owens v. First Kuwaiti Gen. Trading & Contracting Co., 612 F.3d 724, 731 (4th Cir. 2010); see also Barclay White Skanska, Inc. v. Battelle Mem’l Inst., 262 Fed.Appx. 556, 562 (4th Cir. 2008). Further, courts have rejected Plaintiffs notion that a claim should be permitted so long as it was discussed during discovery and thus did not prejudice the other side. See Hexion Specialty Chemicals, Inc. v. Oak-Bark Corp., No. 7:09-CV-105-D, 2011 WL 4527382, at *10 (E.D.N.C. Sept. 28, 2011). Instead, after the court-ordered time period for amending the complaint expires, new claims may be added only for “good cause,” which turns primarily on the “diligence of the moving party.” See Montgomery v. Anne Arundel County, 182 Fed.Appx. 156, 162 (4th Cir. 2006). Such diligence is absent here because Plaintiff certainly had knowledge of the existence and content of his own speech at the time he filed his amended complaint. His failure to relay his knowledge of those conversations in his complaint because he did not yet realize they were legally relevant does not demonstrate good cause. Therefore, to the extent Plaintiff’s, claims were not included in his complaint, they cannot be considered here.

The complaint itself makes no mention of the PBA meeting or Sean McGowan, the individual at the PBA with whom they met. Plaintiffs attempt to add it here mirrors the circumstances in Owens and Barclay White, where the plaintiffs attempted to add additional claims under existing legal theories, relying on facts that were added only after discovery had begun. Plaintiff will not be permitted to argue that he has, a First Amendment retaliation claim based on his speech during a meeting with .the PBA that went completely unmentioned in his complaint.

Although the Deeds meeting is mentioned, the complaint specifically states