Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 04-cv-1149-RPM-MJW MICHAEL ANDREW DARR, Plaintiff, vs. ROBERT NEWMYER; OUTLAW PRODUCTIONS, INC., a California corporation; TOWN OF TELLURIDE, COLORADO, Defendants. ______________________________________________________________________________ TOWN OF TELLURIDE'S REPLY BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________

Defendant, Town of Telluride, appearing separately from the other Defendants herein, through its attorneys Nathan, Bremer, Dumm & Myers, P.C., submits the following Reply Brief in Support of its Motion for Summary Judgment. I. SUMMARY Plaintiff provides no issue of fact on which to deny summary judgment. The Seventh Circuit said: "The Constitution is not an employment manual."1 It does not provide employment rights which do not exist under state law. This case involves the Town's decision to terminate an at-will employee, a decision which has no constitutional dimension. Plaintiff's reliance on a superseded Policy Manual as the basis for his property interest claim, as well as his implied contract and estoppel claims, should be rejected as a matter of law. In Colorado an employer may
1

Swank v. Smart, 898 F.2d 1247, 1252 (7th Cir. 1990).

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 2 of 25

unilaterally amend an employment manual with reasonable notice to the employee.2 The Town far exceeded the requirements on this standard, which typically only requires receipt of the amended manual, regardless of whether the employee actually reads it.3 Plaintiff admitted in deposition and in written discovery that he received the 2002 manual. Plaintiff admitted that he read the manual, understood it, had no questions about it, and signed the Acknowledgment Form with its conspicuous at-will and contract disclaimer language. Plaintiff had the 2002 manual in his possession for the year preceding his termination. At no time before its adoption, or for the year afterward, did Plaintiff raise any complaint or concern about the revisions, including the change to at-will employment and the absence of a right to a hearing. Plaintiff's copy of the 1990 manual states on its cover that it is: "Undergoing Revision."4 Plaintiff was clearly provided sufficient notice that the policies were being revised and that the at-will provisions in the 2002 manual would and did govern his employment. The fact that Chief Kolar typically had reasons before terminating a deputy did not as a matter of law create a custom and practice which limited the at-will provision. If this Court accepts Plaintiff's custom and policy argument, any employer with an at-will policy would have to randomly and regularly terminate employees for no reason at all in order to preserve its rights. Chief Kolar's actions respecting Plaintiff were entirely consistent with the Personnel Manual to terminate with or without cause. As a matter of law, a property interest cannot be inferred from a consistent practice without some basis in state law.5

2 3

Adams County Sch. Distr. #50 v. Dickey, 791 P.2d 688, 693 (Colo. 1990). Mannix v. County of Monroe, 348 F.3d 526, 535-536 (6th Cir. 2003). 4 See Exh. A-5. 5 Regents of the Univ. v. Ewing, 474 U.S. 214, 224 (1985).

2

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 3 of 25

Plaintiff strains to establish municipal liability on his liberty interest claim through CAB member, Robert Beer. This effort too fails as a matter of law. Beer was not a state actor with any policy making or implementing authority over personnel policies or decisions affecting the Marshal's department or its deputies. Accordingly, there can be no liability under Monell or Pembauer. Plaintiff testified in deposition that no public official with authority over his

employment made any stigmatizing or inaccurate public statements about him during his termination. Nor were any statements made by anyone about the reason for the termination of Plaintiff's employment.6 As such, Plaintiff cannot meet the Workman test as a matter of law. Finally, none of Plaintiff's arguments or cited cases supports a substantive due process violation. To state a cognizable substantive due process claim, a plaintiff must first allege sufficient facts to show a property or liberty interest warranting due process protection, which has not been met in this case.7 Plaintiff's and his expert's self-serving statements that Plaintiff could not be discharged where Plaintiff subjectively believed he was doing his job, ignores the fact that Chief Kolar reasonably believed otherwise, and that the Chief described in reasoned detail, the continuing and escalating complaints and performance problems made him, and even Plaintiff, believe Plaintiff's service in the Town was "ineffective." Chief Kolar's decision to terminate was not arbitrary and capricious and does not shock the conscience as a matter of law. Summary judgment for the Town is proper on all claims against it. II. RESPONSE TO PLAINTIFF'S STATEMENT OF FACTS Plaintiff's brief contains fifty three paragraphs (not counting sub-sections) in twenty pages of "Undisputed Material Facts." None of these paragraphs create an issue of fact on the
6 7

See Exh. A-2 at 159:22-25; 160:1. Crider v. Bd. of County Comm'rs of Boulder, 246 F.3d 1285, 1289 (10th Cir. 2001)

3

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 4 of 25

ultimate issues to be determined by this Court. While the Town believes that some of Plaintiff's facts are misleading or incomplete, or suggest inaccurate inferences based on Plaintiff's unreasonable misunderstandings of the Town's Policies, even if this Court takes all of the stated facts as true for purpose of this motion, the Town should still prevail.8 III. ARGUMENT A presumption of administrative regularity and constitutionality attaches to the multitude of personnel decisions made daily by public agencies. Bishop v. Wood, 426 U.S. 341, 349 (1976); Chiappe v. State Personnel Board, 622 P.2d 527, 532-533 (Colo. 1981). This presumption is not overcome by any of Plaintiff's arguments in his Response brief. Further, a person must have more than a unilateral expectation of property interest, he or she must have a legitimate claim of entitlement to it. Town of Castle Rock v. Gonzales, 125 S.Ct. 2796, 2803 (2005). Further, a benefit is not a protected entitlement if government officials may grant or deny it in their discretion. Id. at 2803. The Town's actions here in terminating Plaintiff were administratively proper under the Town's 2002 Policy Manual, and, as an at-will employee, no constitutional right of Plaintiff is implicated. Plaintiff has demonstrated nothing more than a unilateral expectation not cognizable under the United States Constitution. A. Plaintiff Mistakenly Relies on the Town's Superseded 1990 Manual for his Procedural Due Process, Estoppel and Implied Contract Claims.

Plaintiff argues, based on an earlier case which came before this Court, Perrin v. Egger9 that the Town's 1990 employee manual governed his termination and afforded him due process

Undersigned counsel wishes to point out a typo, referenced in Plaintiff's brief, p. 16, ¶12. The sentence in the Town's initial brief, page 20, last sentence, should read: "As a matter of law, CAB members are not policymakers capable of implicating a liberty interest under §1983," which is clearly consistent with the argument that follows. Counsel regrets this typographical error. 9 See Exh. A-24.

8

4

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 5 of 25

rights. The Perrin decision has no application to the present case because the Town, in accord with applicable law, revised its policies. Plaintiff knew, from his first day of his employment in 2001, that the 1990 policies were "Undergoing Revision"10 and knew a year before his termination of the amendments which were made. Under Colorado law "an employer may, without an express reservation of the right to do so, unilaterally change its written policy from one of discharge for cause to one of termination at will, provided that the employer gives affected employees reasonable notice of the policy change." Adams County School District #50 v. Dickey, 791 P.2d 688, 693 (Colo 1990) citing In re Certified Question, 443 N.W.2d 112, 113 (Mich. 1989) : An employer may, without an express reservation of the right to do so, unilaterally change its written policy from one of discharge for cause to one of termination at will, provided that the employer gives affected employees reasonable notice of the policy change. Thus, any "vesting" under an old manual can be affected or revoked or terminated by an employer. Peterson v. Atlanta Housing Authority, 998 F.2d 904 (11th Cir. 1993).11 What constitutes reasonable notice is less clear, but it has been stated that "fairness suggests that a discharge for cause policy announced with flourishes and fanfare at noon day should not be removed by a pennywhistle trill at midnight." In Re Certified Question, at 121. Thus, "for [r]evocation of a discharge for cause policy to become legally effective, reasonable notice of the change must be uniformly given to affected employees." Id. Reasonable notice has been held to be satisfied by the distribution of a new employee handbook, regardless of whether the affected employee actually reads it. Mannix v. County of Monroe, 348 F.3d 526, 536 (6th Cir. 2003).
10 11

See Exh. 1-5. Plaintiff's vesting argument is directly contradicted by the 1990 policies which states that: "These policies are not intended to serve as an employment contract between the Town and any Town employee." See Exh. A-27 at 1

5

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 6 of 25

And, in Swanson v. Liquid Air Corp., 118 Wn.2d 512 (Wash. 1992), reasonable notice was established when an employer uniformly disseminated specific modifications to affected employees a reasonable length of time prior to their taking effect. Id. The reasonable notice standard was more than adequately met by the Town in this case. · The 1990 manual Definitions page defines the PERSONNEL POLICIES as follows: Town of Telluride Personnel Policies and Procedures, as presently adopted and as subsequently may be amended.12 Article I ­ GENERAL POLICY STATEMENT of the 1990 Personnel Policies states: It is the purpose of these provisions to establish generally uniform policies and procedures which will serve as a guide to Town officials, supervisors and employees. These provisions are also intended to promote compliance with Equal Opportunity Employment practices and the Fair Labor Standards Act. These policies and procedures are not intended to serve as an employment contract between the Town and any Town employee. [Emphasis supplied] · · · Plaintiff admitted receiving the 2002 draft policies from the Personnel Director, pursuant to a written memo to all staff on June 19, 2002.13 Plaintiff admitted that he read the new policies and generally understood them and had no questions.14 Plaintiff did not avail himself of the invitation in the June 19, 2002 memo. He did not have any comments or questions for the Personnel Director, either before at the July 1, 2002 meeting regarding the new Policies, nor did attend the public meeting before the Personnel Policies Review Board.15 Plaintiff admits that he read and signed the Acknowledgment form which specifically described the at-will provision and the express or implied contract disclaimer. By remaining employed, Plaintiff made the decision to continue working under the new policies.16

·

·

12

See Exh. A-27, attached hereto, containing portions of the 1990 Manual not provided in Plaintiff's Exh. 1 to his Response. 13 See Exh. A-7 at 14. 14 See fn. 13; See Exh. A-3, 43:3-25; 58:3-25; 59:1-12. 15 See Affidavit of Susan Orshan., attached as Exh. A-28. 16 See fn. 13.

6

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 7 of 25

·

With his signature on the Acknowledgment Form, Plaintiff specifically acknowledged that he read and understood that the previous "for cause" policy had been amended and that his employment was now "at will."17 The Town adopted its new Policy Manual after Plaintiff had been employed for seven months. Plaintiff was on probation for the first six months. He continued to work for a year after the adoption of the new policies, and at no time did he advise anyone that he did not accept the "at will" policy. The Town highlighted (bolded) the new "at-will" provision in Article I of the 2002 Policy Manual, and also highlighted the language that the manual did not vest any employment with any contract rights, express or implied.18 On May 14, 2003, approximately a month prior to his termination, Plaintiff signed a Town of Telluride Marshal's Department Random Drug Testing Policy form which reiterated that the "policy in no way modifies my employment status and in no way implies, infers, or guarantees my continued employment for any definite term.19 By signing the Acknowledgment Form, Plaintiff expressly admitted that he had the

·

·

·

responsibility to read the document and comply with it, and that he understood that his employment was now "at will." When asked in deposition if Plaintiff understood that the new policies superseded the old policies, he stated in no uncertain terms: "that's a given."20 There can be no issue of fact that the Town went well beyond mere distribution of the manual, as was deemed sufficient in Mannix, supra, and provided all employees with more than sufficient notice of the change to an at-will policy. Plaintiff spends some time arguing about the Town's motives in amending the dismissal policy. Under the case law cited by Plaintiff, the Town's motives in revising the personnel manual are not relevant.

17 18

See Exh. A-3 at iv. See Exh. A-3 at 1. 19 See Exh. A-10. 20 See Exh. A-2, 108:13-17.

7

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 8 of 25

Plaintiff goes on to cite cases that do not support a property interest in his employment with the Town. In Conaway v. Smith, 853 F.2d 789 (10th Cir. 1988), the court granted summary judgment for the employer of an electrical inspector who complained he was discharged without due process. While stating that creation of a property interest is a matter of state law, the court found that plaintiff's employment was at will and therefore no protected property interest was at stake. Further, one was not created by an employment manual. Plaintiff's reliance here on a superseded manual evidences nothing more than, as in Conaway, a baseless unilateral expectation, which is insufficient to support a property interest claim as a matter of law. In Peterson v. Atlanta Housing Auth., 998 F.2d 904 (11th Cir. 1993), plaintiff was terminated from her employment with the Atlanta Housing Authority (AHA). The Peterson case is not precedent in this Circuit; regardless, the case is distinguishable on the facts. The court found that plaintiff failed to receive adequate notice of the change from "for cause" to "at will" employment, and that the employees were notified "after the fact." Id. at 915. In Peterson the court held that the revision was not emphasized to employees, and the words "at will" were not used in the revised policy. Id. at 910. Further, the AHA described the "for cause" and "at will" relationship as the "same policy." Id. In addition, other employees were unaware of the change in status, and the old Termination for Cause forms were still in use after the revisions. Id. The court further said the revision was ambiguous because it suggested both at-will status as well as only being terminated for reasons set forth in the policy. Id. In essence, the court found a deliberate intention to mislead employees. In the present case, the change to an at will policy was made explicit to Town employees, and set forth in plain and conspicuous language, placed right above the employee's signature line

8

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 9 of 25

on the Acknowledgment Form (as well as described in other places in the policy). Plaintiff was given ample opportunity to read and be heard on the new policies if he so desired, which, apparently, he did not. Other employees in the Marshal's Department, including Terry Merriman, understood that under the new policy that employment was at-will with the authority to terminate without cause.21 Simply stated, none of the numerous concerns articulated in Peterson, which precluded the court from finding adequate notice, exist in this case. Plaintiff cites Babi v. Colorado High Sch. Activities Assoc., 77 P.3d 916 (Colo. App. 2003), for the proposition that where a letter of employment does not qualify employment as atwill, a property interest is created. (Response brief at 26). Babi, a wrestling coach for a school district, appealed his employment probation. The court held that, based on a written contract with the district, (which did not contain any at-will or limiting language), Babi had a property interest. Id. at 920. In Babi, the court relied on the explicit terms of the existing contract to create a property interest, not, as Plaintiff argues, on the lack of at-will language. Id. Plaintiff here had no such employment contract. Plaintiff goes on to incorrectly allege that the July 1, 2002 Personnel Policies Advisory Board meeting did not take place as promised in the June 19, 2002 memo to Town staff.22 This is factually inaccurate. Attached to this Reply are Affidavits from Deputy Marshal John

Wontrobski, Public Works Director Stan Berryman, and Personnel Director, Susan Orshan, affirming that they attended the July 1, 2002 public meeting, and that Plaintiff did not attend or meet with the Personnel Director at any time with any questions or concerns.23

21 22

See Exh. A-29; 84:10-13. See Exh. A-5, Plaintiff's Response brief p. 27. 23 See Exh. A-30.

9

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 10 of 25

In summary, the 10th Circuit in Conaway, 853 F.2d at 789, said that on a motion for summary judgment, the litigant must bring to the District Court's attention some affirmative indication that his version of relevant events is not fanciful. Plaintiff's reliance on the outdated 1990 Policies for his federal due process, and state law estoppel and contract claims, is, at best, fanciful. Id. at 794. The Town properly revised its policies, distributed them, called attention to the at-will change, and gave employees an opportunity to be heard. Plaintiff has no cognizable property interest and his claim fails as a matter of law.24 B. The Town's Policies Nowhere Describe Post-Probationary Employees as "permanent," Nor Does lack of Probationary Status Limit the At-Will Provision.

Without any factual support whatsoever, Plaintiff unilaterally claims that following his probation he became a "permanent" employee. Nowhere does the 1990 (or 2002) manual state that post-probationary employees become "permanent."25 As to post-probationary status, the 1990 policies state that "the purpose of the probationary period is to determine his/her ability to perform the job duties. (1990 Manual §5.2.1(a), attached as Plaintiff's Exhibit 1). After that period an employee may be deemed to have been appointed to the position. Nowhere does the policy discuss permanency. Plaintiff further asserts that the employee manual provides a list of major offenses that can lead to discipline, and that because he was a "permanent" employee, he could only be disciplined for one of the offenses enumerated in the manual. This argument lacks any merit. First, Plaintiff admits the Town does not have a policy of progressive discipline.26 Second, the
24

Plaintiff did not rebut or otherwise address this Defendant's arguments regarding the violation of public policy claim, and accordingly this claim should be dismissed. 25 See Exh. A-29. 26 See Exh. A-3 at p. 44.

10

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 11 of 25

list is identified as non-exclusive.27 Third, the Town expressly reserved the right to handle each disciplinary issue on a case-by-case basis, and that "any action may be taken, and in any order."28 In support of his argument, Plaintiff cites Ness v. Glassock, 781 P.2d 137 (Colo. App. 1989). The Ness case is distinguishable. Ness, a police lieutenant, resigned from the Ft. Collins police department after being demoted to police officer. The court found that the Ft. Collins manual created genuine issue of fact as to whether at-will employment was changed to "for cause" employment requiring a §1983 claim to go to trial. The manual (1) described postprobation employees as permanent; (2) listed five reasons for suspension and dismissal; and (3) provided procedures for appeals. Id. at 139. In the present case, the Town's list of disciplinary infractions is expressly not limited, and disciplinary action may be taken in any order. More critically, however, the dispositive fact in Ness was that the manual provided for a right of appeal. Unlike Ness the Town provides no right of appeal, and has no limitations altering the atwill relationship. Id. at 139. Here, Plaintiff admits he signed an acknowledgment stating he both knew and understood that his employment was at-will. The Ness court relied on Shumate v. State Personnel Bd., 34 Colo.App. 393, 528 P.2d 404 (1974).29 Shumate holds that when a state agency promulgates rules governing such matters as discharge of its employees that are more stringent than due process would require, the agency

See Exh. A-3 at 45. [Page 45 appears to be missing from the exhibits provided to the Court, and is attached here as Exh. A-32]. 28 See fn. 18, Amended Exh. A-3 at p. 47. 29 Overruled on other grounds by Nguyen v. Regional Transp. Dist., 987 P.2d 933 (Colo. App. 1999).

27

11

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 12 of 25

must comply with those rules. Id. at 397-398. In this case the Town's rules do not implicate due process requirements. Both the Ness and Shumate cases have no precedential value here.30 C. Chief Kolar Did Not Create a Custom or Practice Limiting At-Will Employment.

Plaintiff argues that it was the custom and practice or a mutually explicit understanding in Telluride to only terminate officers for cause and therefore any decision to terminate without cause or without a hearing is a failure to provide due process. According to the US Supreme Court "a property interest cannot be inferred from a consistent practice without some basis in state law." Ewing, at 224. Further, a property interest must be based on a mutually explicit understanding. Jones v. University of Central Oklahoma, 13 F.3d 361, 363-364 (10th Cir. 1993); Lee v. Board of Commissioners of Arapahoe County, 18 F.Supp.2d 1143, 1163 (D. Colo. 1997). Chief Kolar's decision to have reasons before

terminating a deputy did not limit the Policy Manual's at-will provision, nor was it sufficient to constitute a mutually explicit understanding. Putting aside the law for a moment, from a common sense standpoint, Plaintiff's reliance on a custom and practice argument can only have been made based on confidential facts revealed after this litigation began. Darr's statement (Response brief p. 2) that Chief Kolar's custom and practice to not terminate without reasons "created [for Plaintiff] an expectancy of continued employment" brings home this point. Such a statement implies that Chief Kolar and Town Manager Jay Harrington made employment decisions regarding Marshal's Department public, thereby creating expectations on which Plaintiff could have relied. The suggestion is absolutely

30

Plaintiff states the Shumate case discusses public policy considerations, but undersigned counsel has been unable to locate any such discussion on that issue in the case.

12

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 13 of 25

false, and is belied by Town policy and the Protective Order in this case. The litigants in this matter entered into a Protective Order to specifically protect public disclosure of private personnel decisions. Chief Kolar's deposition testimony as to the five prior terminations referred to in Plaintiff's brief were discussed only under the Protective Order, and attached under seal.31 Plaintiff could not have known of this alleged custom and practice until after this litigation began. As such, Plaintiff could not have relied on it prior to being discharged. Second, taken to its logical conclusion, plaintiff's custom and practice argument simply makes no sense. It would require that cities, if they really want to have at-will employment, discharge every third or fourth employee for absolutely no reason. If they do not, they will be said to have set a pattern of discharge for cause, which Plaintiff asserts here overcomes even express, conspicuous, and repetitive at-will language. Third, Plaintiff presents no evidence of a mutually explicit or express understanding with Chief Kolar that Plaintiff could only be terminated for cause. In the Notice of Dismissal, Chief Kolar expressly stated that Plaintiff was being dismissed under Section XIII of the Policy Manual (Dismissal), which provides that employment with the Town is at-will. In the absence of any evidence of a mutual understanding, this claim must also fail. Plaintiff cites Thomas v. Ward, 529 F.2d 916 (4th Cir. 1975). In Thomas, plaintiff was terminated from his employment as a math teacher. The court found that the School Board had fostered an understanding that after a temporary or probationary status for their first three years, teachers would be employed on a continuing contract basis, subject only to dismissal for cause. Id. at 919. Further, the court held that explicit contractual provisions may be supplemented by
31

Plaintiff's termination reasons were confidential as well until this litigation ensued. Sergeant Merriman, Darr's immediate superior, testified that he did not know Kolar's reasons for Darr's termination. See Exh. A-29, 99:9-13.

13

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 14 of 25

other agreements implied from the promisor's words and conduct in light of the surrounding circumstances. The dispositive fact in Thomas was that there existed a mutually explicit understanding based on an ongoing written contract. That does not exist here. Plaintiff also cites McLaurin v. Fischer, 768 F.2d 98 (6th Cir. 1985). In that case, Plaintiff relied on a "common law" practice to establish a property interest. Dr. McLaurin was a neurosurgeon and professor at the Cincinatti medical school. He was terminated from his position as Head of the Division of Neurosurgery. The Court held that a juror could find he had a property interest based on an explicit and mutual understanding McLaurin had with the previous Chairman of the Department of Surgery, that his position was permanent and that he would hold the position unless he became physically unable to perform his job or chose to resign. Id. at 102103. Further, there was testimony that no other division director during the twenty-eight year period had ever been involuntarily removed. From this testimony, the court said, a juror could conclude that a "common law" practice existed whereby division director positions were treated as permanent. Id. at 103. There is no evidence here of a mutually explicit understanding that Plaintiff's employment was permanent. There is also no evidence of knowledge by Plaintiff prior to his discharge of a twenty-eight year practice, or any practice for that matter, on which Plaintiff could arguably rely. Chief Kolar did not establish a policy or custom inconsistent with the Town's Policy Manual, nor did he create a policy which subjected the Town to municipal liability under The City of St. Louis v. Propotnick, 485 U.S. 112 (1988), or Pembaur v. City of Cincinatti, 475 U.S. 469 (1986). The United States Supreme Court was clear in Ewing that even a consistent practice, without more, is insufficient to formulate a property interest. Ewing at 224.

14

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 15 of 25

D.

Plaintiff Cannot Establish Municipal Liability Based on Statements Related by Volunteer CAB Chairman, Robert Beer.

Plaintiff argues that he can establish a prima facie liberty interest claim based on statements by volunteer CAB Chairman, Robert Beer. Plaintiff's argument fails because Beer was not a public employee, public employer, or policy maker as to anyone's employment. He did not speak for Town government. Similarly, CAB did not represent the Town Council. CAB was a forum for protected First Amendment expression.32 Plaintiff cites Cox v. Northern Virginia Transp. Commn., 551 F.2d 555 (4th cir. 1976). Cox was terminated as deputy director of administration with the Virginia Transportation Commission based on allegations in the newspapers of financial wrongdoing. Significant to that case is the fact that it was Cox's employer, the Commissioners, who publicly linked Cox's firing with the investigation of financial wrongdoing, and publicly attributed her discharge to the results of an investigation of the financial scandal at the commission. Id. at 557-558. On the basis of the Commissioners' published statements, the court determined that due process was required. Id. Here, it is undisputed by Plaintiff that Plaintiff's employers, Chief Kolar and Mr. Harrington, made no public statements stigmatizing Plaintiff. Plaintiff also cites Melton v. City of Oklahoma City, 928 F.2d 920 (10th Cir. 1991). In Melton, the court dealt with a City Information Officer's dissemination of statements involving investigations into perjury and ethics violations of a police lieutenant. In Melton, again unlike the present case, it was the employer who disclosed the alleged defamatory statements.

32

If Beer can speak for the Town in terms of liberty interest violations and requiring a liberty interest hearing, so can almost any Town employee, volunteer, participant, or even citizen.

15

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 16 of 25

Plaintiff seemingly goes on to argue that CAB and Beer were agents of the Town, thereby subjecting the Town to municipal liability. There is no agency relationship here. Beer and other volunteer members by CAB's Charter were not employees of the Town, nor was Beer an official with authority to make or implement any policies or decisions regarding the Marshal's Department or any other office of government. Section 1983 does not place liability on government based on tangential actors having some remote association, nor even, for that matter, on general respondeat superior claims. For liability to attach under §1983, the action must involve the unconstitutional acts of policy makers, and, in the employment dismissal scenario, actors with decision making authority which can affect the constitutional rights of the employees.33 Clearly this is not the case with either Beer or CAB.34 Plaintiff cites McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979) for the proposition that a city official may be liable under §1983 when a city official knew of misconduct and failed to prevent harm. McClelland is completely irrelevant. McClelland claimed he was deprived his constitutional rights from five officers during his arrest and custody. The court said that §1983 liability does not arise on a theory of respondeat superior; however, in this case plaintiff was seeking to hold the officers directly liable. The court held that the law clearly allows actions against supervisors under section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived under color of law of a federally secured right. Id. at 695. Here, Plaintiff has not sued any individuals, and the Town is not liable under a theory of responeat superior as a matter of law. See Yanaki v. Iomed, Inc., 2005 U.S. App. LEXIS 15324 (10th Cir.,
33 34

See argument in Defendant's brief p. 20-22. Plaintiff's statement that the Board had the authority to assist the Town Council in governing the Marshal's Department and acting as a policy maker, is factually unsupported and contradicted by the resolution and the CAB Charter.

16

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 17 of 25

2005) (citing Monell for the proposition that, municipalities were "persons" liable under § 1983 for constitutional violations that resulted from official policy or informal "custom," but not on a respondeat superior basis). In the case of Miller v. City of Mission, Kan., 705 F.2d 368 (10th Cir. 1983), another case cited by Plaintiff, plaintiff, a police officer was terminated from his employment. He sued the City, Mayor, and some council members. The court found the City liable based on the Mayor's dissemination of stigmatizing information in the reasons for dismissal. Id. at 373-374. The Court also found the individual council members liable under §1983 for depriving plaintiff's constitutional rights. Id. at 374. This case, like McClelland, has no relevance here. No Town official has been sued under §1983. Plaintiff seems to argue that the Town, by instituting CAB, created or acquiesced in a policy of intentionally violating employees' constitutional rights. To establish municipal liability Plaintiff needs to prove more than that the CAB and Town had some relationship, Plaintiff must establish that the execution of a government policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts injury. Monell v. New York City Dept. of Social Serv., 436 U.S. 658, 694 (1978). Mayor Steel testified in deposition that there were no policies guiding CAB in the initial months, and that CAB was expected to begin drafting a Charter.35 CAB members had not been instructed not to discuss personnel issues, but as soon as the issue came up, Chief Kolar immediately stopped them.36 At the following meeting, Kolar distributed a memo explaining that

35 36

See Plaintiff's Exh. 18, 60:24-25; 61: 1-25; 62:1-20. See Exh. A-4, 233:15-25, 234:1-9.

17

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 18 of 25

individual officer complaints were confidential personnel issues handled internally.37 In short, there was no Town policy, express or implied, to deprive Town Marshal's of their constitutional rights. There are generally three ways in which a plaintiff can assert §1983 liability against a City. A Plaintiff could assert that: (1) there is an express policy that causes a constitutional deprivation;

(2) there is an allegation that the constitutional injury was caused by a person with final policy making authority; or (3) there is a widespread practice that even though not expressly authorized is nonetheless so permanent and well settled as to constitute a custom or usage with the force of law. City of St. Louis v. Praprotnik, 485 U.S. 112 (1988). None of these elements can be met here as a matter of law. The Town had no policy, through CAB or Beer, to defame employees. Plaintiff has conceded that no final policy maker defamed him. There was no widespread practice to violate employees' civil rights. Plaintiff cannot establish any of these three factors in Propotnick, and this argument lacks merit. E. Plaintiff Cannot Meet Its Burden Under The Workman Factors As A Matter of Law.

Plaintiff argues that Beer is essentially responsible for his liberty interest claim because Beer related citizen complaints during CAB meetings, wrote a letter to the local paper which did not name Plaintiff, and made certain First Amendment protected statements to the local press and media expressing his personal concerns. Plaintiff asserts these remarks were false, stigmatizing,

37

See Exh. A-31.

18

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 19 of 25

made in the course his termination, and have foreclosed employment opportunities. Beer's statements as a matter of law, do not meet the Workman test for a constitutional violation. First, Beer was not an official with any authority over Plaintiff's employment. He did not speak for the Town, its Council or the Marshal's Department, nor did he control their actions. In Hawkins v. Rhode Island Lottery Commission, 238 F.3d 112 (1st Cir. 2001), the Rhode Island Lottery Commission removed the plaintiff from office "after a flurry of negative publicity in which his conduct in office was criticized, primarily by the state's governor." Id. at 113. The Governor, however, could not force plaintiff's termination; only the Lottery Commission had that authority. Id. The First Circuit noted that the party responsible for the alleged defamation was not the party responsible for the termination. There was no evidence tending to show that there was no connection between the stigma and the termination. The lack of connection was the fundamental reason no due process violation occurred. The court pointed to the fact that the Governor "neither spoke for the Commission nor controlled its actions." Id. at 116 & n.8. The First Circuit held that the plaintiff had "failed to state a viable due process claim." Id. at 116. Here, Beer has even less of a connection to government than did the Governor in Hawkins, but the same principal applies. There is no connection in this case between Beer's allegedly defamatory statements and Plaintiff's termination. The decision-maker in this case, as noted, Chief Kolar, when first hearing individual officers referenced by name, promptly acted to stop it. Beer's statements were not made by or on behalf of the Town, nor did they represent Chief Kolar's reasons, made months later in June of 2002, to terminate Plaintiff's employment. Plaintiff fails entirely to make any connection between any of Beer's statements and Chief Kolar's termination decision case. The circumstances of Plaintiff's discharge did not impose a

19

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 20 of 25

stigma of illegal or immoral conduct on his professional reputation. Nothing in the actions of the Chief Marshal or Town Manager Council triggered a constitutional right to a name-clearing hearing. Plaintiff's cited cases are distinguishable. In Lentsch v. Marshall, 741 F.2d 301 (10th Cir. 1984), plaintiff was discharged from her job as a dispatcher with the Sheridan Police Department. She was discharged by the Chief of Police, who during the termination process, characterized plaintiff's conduct to the newspapers as "dishonest." The newspapers published the Chief's comments. Id. at 304. Once again, the distinguishing factor between this case and the case at bar is that Plaintiff concedes that no public official made stigmatizing statements about him to the public during his termination. As argued in Defendant's brief, the only comments by a public official regarding Plaintiff's employment, was that Plaintiff was placed on administrative leave, that Internal Affairs investigations were being conducted on two complaints, and that Plaintiff was no longer employed by the Town. Plaintiff does not dispute that these statements, while made during the course of termination, did not stigmatize him as a matter of law. McGhee v. Draper, 564 F.2d 902 (10th Cir. 1977) involved a discharged teacher accused by citizens during public board meetings of immoral conduct. She was terminated after a series of board meetings where the allegations were investigated. The allegations, as the basis for her dismissal, were described in the minutes, and distributed by the Board to over 200 citizens. Id. An adoption or acquiescence theory does not apply in the present case. There is a complete lack of evidence that the Town adopted any of Beer's allegedly defamatory remarks as a basis, many months later, for Kolar's termination decision, nor did Kolar make his reasons public. In Owen

20

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 21 of 25

v. City of Independence, 445 U.S. 622 (1980), the court found a stigma by the official actions of the city council in releasing the charges against plaintiff contemporaneously and, in the eyes of the public, connected to the discharge. Plaintiff argues that Beer's statements have foreclosed his future employment opportunities in law enforcement. This is not factually accurate, based on Plaintiff's own testimony. The undisputed facts are that Plaintiff has attempted to seek new employment by sending out approximately thirty letters of inquiry in August of 2003 and then nothing again until November of 2004.38 As to why there was such a long gap in between, Plaintiff testified he was afraid of revealing his last employer, assuming he would be asked why he left.39 Plaintiff further testified that has made no effort to apply for a job through the COPS program, enlist a headhunter, or utilize any state agencies that provide employment assistance without compensation.40 In truth, Plaintiff believes he has been foreclosed from future employment not because of anything Robert Beer said, but because he was dismissed from his job and is now simply fearful of revealing that fact and getting back in law enforcement.41 Thus, it is not Beer's statements that Plaintiff fears have foreclosed future employment, or any statements contained in the Notice of Dismissal (which was never made public), but rather, simply because he was dismissed, (even though he was allowed to resign but chose to decline).42 Rather, Plaintiff's concerns exists because, as he testified, a prospective law

enforcement employer, during a background or medical check may discover both the fact of termination, and perhaps other sensitive psychological issues which may make him unattractive
38 39

See Exh. A-2, 209:8-21. See Exh. A-2, 209:19-25; 210:1-24. 40 See Exh A-2, 216:3-25; 211:119. 41 See fn. 27. 42 See Exh. A-2, 11:14-25; 12:1-8.

21

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 22 of 25

to prospective employers.43 There is no evidence in the record that any employer has declined to employ Plaintiff because of any statements made by Robert Beer. Other circuits, but not yet the Tenth Circuit, have required that a plaintiff ask for a hearing to establish a liberty interest claim. Plaintiff asserts he asked to meet with Mr. Harrington in June of 2002, but this was before, and unrelated to his termination. The very point of a name-clearing request is to address allegedly false accusations made by the public official employer during the course of termination. Renaud v. Wyoming Dep't of Family Servs., 203 F.3d 723 (10th Cir. 2000). The present case points out the importance of a requirement for a request for a liberty interest hearing. In many instances, the governmental entity does not have any idea that the plaintiff believes his liberty interests have been violated or that he wants some sort of a name clearing hearing. Here, the Town had no idea that Beer's exercise of his First Amendment rights about things unrelated to Darr's discharge could somehow later be argued to have created a right to a liberty interest hearing. This Circuit should follow those Circuits which find that the failure to show that a name clearing hearing was requested and denied is fatal to a liberty interest claim. See e.g. Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 103 (1st Cir. 2002); Arrington v. County of Dallas, 970 F.2d 1441, 1447 (5th Cir. 1992); Ludwig v. Bd. of Tr. of Ferris State Univ., 123 F.3d 404, 410 (6th Cir. 1997) (if the four elements are met, plaintiff is entitled to a name clearing hearing if plaintiff has made a request for such a hearing).

43

For instance, Plaintiff admits that he no longer has the mental capacity to be a law enforcement officer, has suicidal ideations, and is afraid to get back in law enforcement. Plaintiff admitted that his thoughts of suicide may foreclose him from employment. See Exh. A-1, 203:4-24; 209:17-21;217:12-19.

22

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 23 of 25

F.

Plaintiff Substantive Due Process Argument Does Not Raise an Issue of Fact for Trial.

Plaintiff argues that he need not have a property interest to pursue this claim and, even if he must have one, that he has satisfied this requirement. This Circuit has held, however, in Mitchell v. City of Moore, 218 F.3d 1190 (10th Cir. 2000), that a substantive due process claim fails where it is not first established that defendant's actions deprived plaintiff of a protectible property interest. Id. at 1198-99. In the absence of any precedent that Plaintiff's status as a deputy marshal is a fundamental property right, or that Plaintiff had a protected property or liberty interest in his employment, as discussed above, supra, summary judgment for the Town on Plaintiff's substantive due process claim is proper. Plaintiff goes on to cite a variety of privacy cases discussing substantive due process rights, but this is not a right to privacy case. It is not a freedom of speech case. Nor is this a case about freedom of intimate association or freedom of expressive association. The legal test therefore is sheer arbitrariness and it hard to believe that, with Chief Kolar's thoughtful, reasoned, and detailed explanation in the Notice of Dismissal and in his deposition testimony, that the Town could have been said to have been arbitrary. As discussed in some detail in Defendant's opening brief, and which we hesitate to reiterate here, Chief Kolar found that Plaintiff was not satisfactorily performing his job over time. Even Plaintiff agrees that because of circumstances surrounding his overzealousness over time, he had become ineffective.44 Plaintiff's reference to his expert's opinions should hold no sway with this Court. Mr. Tucker's opinions cannot be substituted for those of this Court.

44

See Exh. A-2, 152:1-5.

23

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 24 of 25

Moreover, many of his opinions are legal, such as whether Plaintiff's employment was at-will.45 Mr. Tucker's self-serving opinion that Plaintiff was fired because he was "properly performing his job" is contradicted by those individuals who consistently and over time supervised Plaintiff while Plaintiff was employed at the Town.46 IV. CONCLUSION The Town respectfully requests dismissal of all claims against it. Plaintiff raises no issue of fact precluding summary judgment. Plaintiff ignores the many legitimate exceptions in the law applicable to the at-will employment doctrine.47 The Town assumes that this is because Plaintiff simply cannot squeeze into any of these exceptions. Instead, Plaintiff must assert novel but irrational theories which, if accepted, would essentially end at-will employment, a doctrine which has been repeatedly acknowledged and upheld in this state and in this Circuit. Plaintiff's federal and state law claims warrant dismissal under Fed.R.Civ.P. 56. Respectfully submitted, NATHAN, BREMER, DUMM & MYERS, P.C.

s/ Allyson C. Hodges________________________ J. Andrew Nathan Allyson C. Hodges 3900 E. Mexico Ave., Suite 1000 Denver, CO 80210 (303) 691-3737 Attorneys for Town of Telluride

45

This Defendant intends to file a Motion to Strike those opinions which are purely legal and for this Court to determine. 46 See citations to depositions of Chief Kolar and Sergeant Merriman in Defendant's brief, footnote 46. ADA, ADEA, Title VII, First Amendment Retaliation, Public Policy, Wrongful Discharge, for example.

24

Case 1:04-cv-01149-RPM

Document 51

Filed 08/05/2005

Page 25 of 25

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on August 5, 2005 , I electronically filed the foregoing TOWN OF TELLURIDE'S REPLY BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address: Angela Ekker, Esq. E-mail: [email protected] John H. Steel, Esq. E-mail: [email protected] Gary L. Doehling, Esq. E-mail: [email protected] Daniel Grossman, Esq. E-mail: [email protected]

s/ Allyson C. Hodges J. Andrew Nathan Allyson C. Hodges Attorneys for Defendant Nathan, Bremer, Dumm & Myers, P.C. 3900 E. Mexico Avenue, Suite 1000 Denver, CO 80210 (303) 691-3737 (303) 757-5106 E-mails: [email protected]; [email protected]

25