Free Response to Motion - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00687-PSF-BNB MARY JO LAIRD, Plaintiff, v. GUNNISON COUNTY, a County of the State of Colorado, acting through THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF GUNNISON, THE BOARD OF TRUSTEES FOR THE GUNNISON COUNTY PUBLIC LIBRARY, and JOHN DEVORE and PEGGY MARTIN, in their individual capacities. Defendants.

PLAINTIFF'S RESPONSE TO DEFENDANTS' BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Plaintiff, by and through her undersigned attorneys, hereby files her Response to Defendants' Brief in Support of Motion for Partial Summary Judgment ("Brief"), and states as follows: I. INTRODUCTION Defendants fail to demonstrate that reasonable jurors could find by a preponderance of the evidence that Defendants are entitled to a verdict on Plaintiff's: (1) 42 U.S.C. §1983; (2) Willful Breach of Contract/Express Covenant of Good Faith and Fair Dealing; and (3) Promissory Estoppel claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Indeed, there is no substantial genuine material issue of fact which would prevent the Court from entering summary judgment in Plaintiff's favor, as to liability, as to the first two of these three claims. Genuine issues of material fact remain

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as to Plaintiff's Promissory Estoppel claim. Plaintiff confesses that summary judgment is properly entered in Defendants' favor as to her 42 U.S.C. §1985 and Article II, Section 25, Colorado Constitution claims. Brief Factual Background Plaintiff, Mary Jo Laird ("Plaintiff" or "Mrs. Laird"), was employed by the County of Gunnison ("Gunnison") for over 14 years prior to her termination in September 2002. She was a librarian in a branch of the Gunnison library system in Crested Butte, Colorado during her entire employment. Mrs. Laird was the "Branch Librarian" at the Crested Butte Library from 1993 until her termination in 2002. From at least 1996 until shortly before her termination in 2002, the job description for the "Branch Librarian" position provided that a "Masters of Library Science" was "preferred", but that a Bachelor's degree in a closely related field and one year's experience in library operations, or "any equivalent combination of education and experience" would suffice to meet the "Desired Minimum Qualifications" for the position.1 Ex. 1, Position

Description for "Branch Librarian". Despite having a Bachelors degree in Education rather than a Masters of Library Science, based on her experience, Mrs. Laird competently and diligently occupied the "Branch Librarian" position until her level of

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It should be noted that prior to Plaintiff's term ination, Gunnison had a num ber of positions, including that of the County Manager, where the "equivalent experience" would suffice to m eet the desired m inim um qualifications of a job. For exam ple, the job description for the Gunnison County Manager position stated that a Master's degree was preferred. However, Defendant DeVore's Bachelor's degree and equivalent experience were sufficient to perm it him to occupy and retain that position. Ex. 3, DeVore Deposition, p. 5, ll. 7-17; p. 6, l. 14 - p. 7, l. 5.

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formal education no longer permitted her to effectively and efficiently perform the job and meet the increasing demands of the community. On or about May 13, 2002, Defendants determined that the community's desire for increased levels of service required that they "reclassify" the "Branch Librarian" position and alter the job description. However, the job description of what was now called the "Library Manager" position did not materially differ from the job description of the old "Branch Librarian" position with the exception that it required a Masters in Library Science. Compare Ex. 1 with Ex. 2, Position Description for "Library Manager". On September 18, 2002, Mrs. Laird was notified that her position at the Crested Butte Library was being "eliminated" and her services would no longer be needed after September 30, 2002. She was told that she was "laid off"; the victim of a "reduction in force" of one person (herself!) due to budget constraints. However, Plaintiff was not "laid off" because of a lack of work, or a decreased demand for the services she provided as the "Branch Librarian". Nor was she laid off because her position was "abolished". In reality, her position was renamed ­ "reclassified" ­ and re-occupied almost immediately by another Gunnison employee who possessed the new requisite minimum formal education and who could therefore, according to Defendants, meet the increasing demands of the community in a way Plaintiff could no longer efficiently and effectively provide. Brief Statement of Mrs. Laird's Case The Gunnison Personnel Policies that governed Mrs. Laird's employment created an implied contract by providing that she would not be dismissed, terminated, demoted,

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or suffer an adverse employment action without being provided with the opportunity to appeal such action. The Personnel Policies also created an express covenant that Defendants would treat Mrs. Laird in a fair manner. The existence of both the implied contract and express covenant converted Mrs. Laird's presumed at-will employment with Gunnison into a contractually-based and Constitutionally-protected property right, of which she could not be deprived without due process as guaranteed by the Fourteenth Amendment to the Constitution of the United States. Brief Statement on Defendants' Introductory Comments in Their Brief As to Defendants' introductory comments in their Brief, Plaintiff notes that Defendants mis-characterize the allegations in Paragraphs 8 and 15 of Plaintiff's Third Amended Complaint ("Complaint") to argue an inadequacy in Plaintiff's allegation of a violation of her due process guarantees. Contrary to Defendants' argument, Paragraph 15 alleges that Plaintiff's dismissal was due to her inability to continue to adequately perform the job of Branch Librarian at the Crested Butte Library and, further, that Defendants' actions in "reclassifying" her job and creating a "reduction in force" were pretextual and taken to avoid what they believed they would otherwise have to provide to Plaintiff: a hearing as set forth by the Personnel Policies. Defendants' attempt to show an inconsistency in Mrs. Laird's Complaint when she states in Paragraph 8 that she was "a good, loyal, and dedicated employee" and that "as a result of her competent, efficient, and exemplary work, Plaintiff received merit pay increases, letters of praise and appreciation, and favorable performance appraisals" misses two points. First, Mrs. Laird was indeed, at one time, competent and efficient in her work in conducting the

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daily operations of the Crested Butte Branch Library. Despite this, Defendants allegedly felt that she could no longer perform her job as effectively and efficiently as required by the increased levels of service requested by the community. As a result of their feelings regarding the increased demands, Defendants dismissed Plaintiff from her employment. In addition, the fact that Plaintiff was, until a short time before her termination, perceived to be a good employee provided Defendants with the pretextual motive to deny her the right to a hearing; a hearing Plaintiff believes she would have won had it properly occurred. Brief Statement on Defendants' "Undisputed Facts" Plaintiff finds numerous mis-characterizations of the evidence cited by Defendants in over two-thirds of their "Undisputed Facts". With the exception of item nos. 1, 4 ­ 5, 20 ­ 23, 32 ­ 33, and 35 ­ 36, which Plaintiff will stipulate to as phrased, the remainder of the "facts" depart from the evidence of record in various degrees. Because Defendants regularly cite to many of these items in their Brief to show that something is conceded or undisputed, when in fact neither may be accurate, Plaintiff specifically addresses each of the disputed items in turn below, keeping their original numbered designations for the sake of clarity and setting forth below verbatim each of the "facts" Defendants rely upon in their Motion. Plaintiff's comments immediately follow those "facts" which Plaintiff disputes.

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II. PLAINTIFF'S RESPONSE TO DEFENDANTS' "UNDISPUTED FACTS" .... 2. At all times during her employment with the County, Plaintiff was an at-will

employee under Colorado law. [Exhibit A at ¶ 3]. Plaintiff's Response: Plaintiff denies that Plaintiff was an at-will employee. The Gunnison Personnel Policies that governed Mrs. Laird's employment created an implied contract by providing that she would not be dismissed, terminated, demoted, or suffer an adverse employment action without being provided with the opportunity to appeal such action. The Personnel Policies also created an express covenant that Defendants would treat Mrs. Laird is a fair manner. The existence of both the implied contract and express covenant converted Mrs. Laird's presumed at-will employment with Gunnison into a contractually-based and Constitutionally-protected property right, of which she could not be deprived without due process as guaranteed by the Fourteenth Amendment to the Constitution of the United States. 3. At no time during her employment with the County did Plaintiff have a

contract of employment. [Exhibit A at ¶ 4; deposition of Mary Jo Laird appended hereto as Exhibit B at p. 60, lines 20 ­ 23]. Plaintiff's Response: Defendants mis-characterize Plaintiff's deposition testimony. Plaintiff's counsel notes that he objected to this line of questioning by Defendants' counsel as calling for a legal conclusion. As can be seen from the testimony

Defendants cite, Mrs. Laird testified that while she never signed a document entitled "Employment Contract" during her employment with Gunnison, she indicated that the

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Personnel Policies constituted an employment contract in her mind. Deposition, p. 60, ll. 20 ­ 23. .... 6.

Ex. 4, Laird

Ms. Laird has no recollection of being told when she was hired that her

employment could only be terminated for disciplinary reasons. [Exhibit B at p. 65, lines 13 ­ 15]. Plaintiff's Response: While Plaintiff cannot recall being told when she was hired that her employment could only be terminated for disciplinary reasons, she also thought that as long as she did her job and performed her "duties", she would not be terminated. Ex. 4, Laird Deposition, p. 65, ll. 6 ­ 12; p. 68, l. 22 - p. 69, l. 21; p. 71, l. 21 ­ p. 72, l. 2; p. 76, ll. 2 ­ 24; p. 77, ll. 17 ­ 24. Based upon the Personnel Policies, she understood that she could only be terminated for cause. Id. at p. 80, ll. 10 ­ 14; p. 90, ll. 1 ­ 5; p. 92, ll. 4 ­ 14. 7. At that time, Ms. Laird has no recollection of being told that a particular

procedure would have to be followed if she was terminated. [Exhibit B at p. 68, lines 6 ­ 10]. Plaintiff's Response: While Plaintiff did not recall being told that a particular procedure would have to be followed if she was terminated, the Personnel Policies themselves provide as much. 8. When she actually received the Personnel Policies in June of 1989, Ms.

Laird has no recollection of any County employee telling her that the County was required to follow the policies. [Exhibit B at p. 70, line 5 ­ p. 71, line 3].

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Plaintiff's Response: While she cannot recall being told that the County was required to follow the policies, Plaintiff did, however, testify that she believed that the County was required to follow the policies "[b]ecause they wrote the policies manual." Ex. 4, Laird Deposition, p. 70, ll. 18 ­ 23. In addition, Defendant Martin also testified that compliance with the Personnel Policies was mandatory for all Gunnison employees. Ex. 5, Martin Deposition, p. 6, ll. 2 ­ 8, 18 ­ 24. Defendant DeVore also testified that the provisions of the Personnel Policies were mandatory for all Gunnison employees. Ex. 3, DeVore Deposition, p. 64, ll. 15 ­ 18. 9. When she received the Personnel Policies in June of 1989, no one from

the County told Ms. Laird that the policies served as a form of contract between her and the County. [Exhibit B at p. 72, lines 3 ­ 7]. Plaintiff's Response: Please see Plaintiff's Response to item numbers 2, 3, 6 ­ 8, supra. 10. Ms. Laird cannot recall any language she relied upon in the Personnel

Policies that informed her that if she continued to do a good job, she could keep her job. [Exhibit B at p. 73, line 24 ­ p. 74, line 2]. Plaintiff's Response: While Plaintiff cannot recall any language she relied upon in the Personnel Policies that informed her that if she continued to do a good job, she could keep her job, she also understood that the Personnel Policies created an implied contract, rather than a contract which might provide express language in this regard. See also Plaintiff's Response to item numbers 2, 3, 6 ­ 9, supra.

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11.

Ms. Laird cannot recall any language within the Personnel Policies

indicating that she could only be terminated for cause, nor did she recall ever hearing that during her entire term of employment with the County. [Exhibit B at p. 74, line 24 ­ p. 75, line 8]. Plaintiff's Response: While Plaintiff cannot recall any language within the Personnel Policies indicating that she could only be terminated for cause, nor did she recall ever hearing that during her entire term of employment with the County, she clearly believed that she could only be terminated for cause based upon the implied contract which arose out of the Personnel Policies. Ex. 4, Laird Deposition, p. 65, ll. 6 ­ 12; p. 68, l. 22 - p. 69, l. 21; p. 71, l. 21 ­ p. 72, l. 2; p. 76, ll. 2 ­ 24; p. 77, ll. 17 ­ 24. Based upon the Personnel Policies, she understood that she could only be terminated for cause. Id. at p. 80, ll. 10 ­ 14; p. 90, ll. 1 ­ 5; p. 92, ll. 4 ­ 14. 12. At no time during her employment with the County did Ms. Laird decide

against seeking alternative employment because of her reliance upon specific provisions within the Personnel Policies, including the grievance and appeal procedures. [Exhibit B at p. 77, line 9 ­ p. 78, line 18]. Plaintiff's Response: While this may be true as phrased, Mrs. Laird also testified that she had decided to work until she was age 65 or so, and that she thought she had a job if she did her job well. Ex. 4, Laird Deposition, p. 68, l. 22 ­ p. 69, l. 2. She further testified that she relied on her employment record, and that if a problem arose, she knew that she was "entitled to an appeal procedure." Ex. 4, Laird Deposition, p. 77, ll. 22 ­ 24.

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13.

During her employment with the County, when Ms. Laird received

amended Personnel Policies, she was never told that the amendments served as a contractual offer by the County. [Exhibit B at p. 79, lines 19 ­ 23]. Plaintiff's Response: Please see Plaintiff's Response to item numbers 2, 3, 6 ­ 11, supra. 14. At no time during the course of Plaintiff's employment did the County

intend for the Personnel Policies to operate as a contractual offer to Plaintiff. [Exhibit A at ¶ 6]. Plaintiff's Response: Plaintiff objects on foundational grounds to Defendants' utilization of Mr. DeVore's affidavit or any other testimony to form the basis of any argument in their Motion as to events which preceded Mr. DeVore's employment with Gunnison. Mr. DeVore was first employed by Gunnison in 1996. Ex. 3, DeVore

Deposition, p. 6, ll. 12 ­ 18. Mrs. Laird began her employment with Gunnison in 1988. Ex. 4, Laird Deposition, p. 16, ll. 1 ­ 8. 15. Ms. Laird is unaware of any language within the Personnel Policies which

indicates that she could only be terminated for cause. [Exhibit B at p. 80, line 10 ­ p. 81, line 25; p. 83, lines 1 ­ 6]. Plaintiff's Response: Please see Plaintiff's Response to item numbers 2, 3, 6 ­ 14, supra. 16. Ms. Laird's only discipline during her entire term of employment with the

County was on two occasions in 1993 ­ an oral reprimand for a complaint that she was

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not polite to a customer and another oral reprimand for not giving a child a library card. [Exhibit B at p. 115, line 11 ­ p. 119, line 1]. Plaintiff's Response: This statement is partially correct. Plaintiff was also

disciplined when she was dismissed from her employment due to her inability to efficiently and effectively perform her job given the increased and/or higher levels of service demanded by the community. Ex. 3 DeVore Deposition p. 8, l. 12 ­ p. 9, l. 22; p. 27, l. 11 - p. 29, l. 3; Ex. 5, Martin Deposition, p. 47, l. 9 ­ p. 48, l. 1. 17. As late as June of 2002, Ms. Laird received a favorable performance

evaluation. [Exhibit B at p. 126, line 15 ­ p. 129, line 16]. Plaintiff's Response: True, but Plaintiff was also disciplined when she was dismissed from her employment due to her inability to efficiently and effectively perform her job given the increased and/or higher levels of service demanded by the community. Ex. 3, DeVore Deposition p. 8, l. 12 ­ p. 9, l. 22; p. 27, l. 11 - p. 29, l. 3; Ex. 5, Martin Deposition, p. 47, l. 9 ­ p. 48, l. 1. 18. During her entire employment with the County, no County employee ever

came to Ms. Laird with concerns or criticisms about her work, to include Martin, Moore, and DeVore. [Exhibit B at p. 131, line 17 ­ p. 132, line 15]. Plaintiff's Response: This is true, and this fact goes to Plaintiff's claim of breach of express covenant of good faith and fair dealing. Despite the veracity of this

statement, Plaintiff's job performance was clearly the catalyst that initiated the "reclassification" process which ultimately led to Plaintiff being dismissed from her employment due to her inability to efficiently and effectively perform her job given the

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increased and/or higher levels of service demanded by the community. Ex. 3, DeVore Deposition p. 8, l. 12 ­ p. 9, l. 22; p. 27, l. 11 - p. 29, l. 3; Ex. 5, Martin Deposition, p. 47, l. 9 ­ p. 48, l. 1. 19. As of September 1, 2002, Ms. Laird had received a merit-based raise

every year. [Exhibit B at p. 133, lines 3 ­ 14]. Plaintiff's Response: True, but Plaintiff was also disciplined when she was dismissed from her employment due to her inability to efficiently and effectively perform her job given the increased and/or higher levels of service demanded by the community. Ex. 3, DeVore Deposition p. 8, l. 12 ­ p. 9, l. 22; p. 27, l. 11 - p. 29, l. 3; Ex. 5, Martin Deposition, p. 47, l. 9 ­ p. 48, l. 1. .... 24. During her meeting with Martin on September 10, 2002, Martin told Ms.

Laird that her being laid off was no reflection on her job performance and that her position was being eliminated due to budgetary constraints. [Exhibit B at p. 136, line 23 ­ p. 137, line 5]. Plaintiff's Response: True, but Plaintiff was also told by Ms. Martin that the position required a higher level of professionalism than Plaintiff could provide. Ex. 4, Laird Deposition, p. 136, ll. 7 ­ 10. 25. On September 30, 2002, Plaintiff was not dismissed for cause as a result

of any disciplinary action, but was instead laid off. [Exhibit A at ¶ 9]. Plaintiff's Response: This is a contested issue of fact, and is a subject of Plaintiff's Response and separate Motion for Partial Summary Judgment with supporting

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brief. It is Plaintiff's position that Defendants' maneuvers amounted to a dismissal of Plaintiff because she could not perform her assigned duties in an efficient and effective manner as required of her by the increased, or higher, levels of service requested by the community. Ex. 3, DeVore Deposition, p. 8, l. 12 ­ p. 9, l. 22; p. 27, l. 11 - p. 29, l. 3; Ex. 5, Martin Deposition, p. 47, l. 9 ­ p. 48, l. 1. 26. While Ms. Laird received notice that her position had been eliminated,

such did not constitute written notice of "dismissal" as defined by the Personnel Policies since "dismissal" was defined as "an involuntary separation for cause from County employment." [Exhibit C at p. 58]. Plaintiff's Response: This too is a contested issue of fact that is addressed in Plaintiff's Response and separate Motion for Partial Summary Judgment with supporting brief. See Plaintiff's Response to item number 25, supra. 27. With regard to her layoff, cause need not have existed and the appeal

procedures within the Personnel Policies were not applicable to the layoff. [Exhibit A at ¶ 10; Exhibit C at pp. 44 - 45]. Plaintiff's Response: This too is a contested issue of fact that is addressed in Plaintiff's Response and separate Motion for Partial Summary Judgment with supporting brief. See Plaintiff's Response to item numbers 25 ­ 26, supra. 28. Ms. Laird agrees that the grievance and appeal procedures do not apply

to a situation where a person was laid off as a result of a reduction in force. [Exhibit B at p. 84, lines 5 ­ 12].

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Plaintiff's Response:

It is Plaintiff's position that Defendants' maneuvers

amounted to a dismissal of Plaintiff because she could not perform her assigned duties in an efficient and effective manner as required of her by the increased, or higher, levels of service requested by the community. Ex.3, DeVore Deposition, p. 8, l. 12 ­ p. 9, l. 22; p. 27, l. 11 - p. 29, l. 3; Ex. 5, Martin Deposition, p. 47, l. 9 ­ p. 48, l. 1. 29. Ms. Laird recognizes that the grievance and appeal procedures probably

cannot be used on any other grounds other than following disciplinary actions. [Exhibit B at p. 92, lines 4 ­ 17]. Plaintiff's Response: It is Plaintiff's position that Defendants' maneuvers

amounted to a dismissal of Plaintiff because she could not perform her assigned duties in an efficient and effective manner as required of her by the increased, or higher, levels of service requested by the community. Ex. 3, DeVore Deposition, p. 8, l. 12 ­ p. 9, l. 22; p. 27, l. 11 - p. 29, l. 3; Ex. 5, Martin Deposition, p. 47, l. 9 ­ p. 48, l. 1. If Mrs. Laird "fail[ed] to perform [her] assigned duties in an efficient and effective manner", she could be "dismissed" and such a dismissal entitled her to invoke an appeal procedure and the appointment of an independent hearing officer pursuant to the provisions of the "Disciplinary Action" and "Appeal Procedures" sections within the Personnel Policies. Ex. 3, DeVore Deposition p. 22, ll. 15 ­ 20; Ex. 6, Personnel Policies, pp. 38 and 44. A disciplinary action "refers to action taken by a Supervisor, Department Head, Elected Official or Board against an employee for cause including, but not limited to, counseling, warning, reprimand, suspension, review status, demotion, reassignment or dismissal." Ex. 6, Personnel Policies, p. 38. "Cause for disciplinary action shall include acts

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involving unsatisfactory work performance by an employee... including, but not limited to... (e) [a f]ailure to perform assigned duties in an efficient and effective manner;" Id. 30. No one from the County ever told Ms. Laird that if she was laid off as a

result of a reduction in force that she could appeal that decision. [Exhibit B at p. 95, lines 5 ­ 11]. Plaintiff's Response: It is Plaintiff's position that Defendants' maneuvers

amounted to a dismissal of Plaintiff because she could not perform her assigned duties in an efficient and effective manner as required of her by the increased, or higher, levels of service requested by the community. Ex. 3, DeVore Deposition, p. 8, l. 12 ­ p. 9, l. 22; p. 27, l. 11 - p. 29, l. 3; Ex. 5, Martin Deposition, p. 47, l. 9 ­ p. 48, l. 1. 31. Even after receiving the letter from DeVore that she would not be afforded

a hearing, Ms. Laird did not have any reason to think that DeVore had it out for her. [Exhibit B at p. 174, line 10 ­ p. 175, line 15]. Plaintiff's Response: True, but Plaintiff testified that nevertheless believed that she had been treated unfairly. Ex. 4, Laird Deposition, p. 174, ll. 16 ­ 17. .... 34. Ms. Laird is unaware of any meeting between Martin, Moore, and DeVore

when the three agreed to the alleged conspiracy. [Exhibit B at p. 186, line 18 ­ p. 187, line 3]. Plaintiff's Response: True, but Plaintiff also testified that she believed their respective positions at Gunnison would have permitted such a meeting. Ex. 4, Laird Deposition, p. 184, ll. 3 ­ 15.

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.... 37. Plaintiff acknowledges that maybe the elimination of her position was due

to budgetary reasons. [Exhibit B at p. 191, lines 1 ­ 9]. Plaintiff's Response: Plaintiff testified that "maybe" the elimination of her position was due to budgetary reasons. The deposition testimony that Defendants cite to

requested Plaintiff to recall deposition testimony provided by Defendant Martin. Plaintiff is only acknowledging Defendant Martin's testimony in her testimony. III. STANDARD OF REVIEW The purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). In ruling on a motion for summary judgment, the facts must be viewed in the light most favorable to the party opposing the motion and that party must be afforded the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). IV. RESPONSE A. Defendants DeVore and Martin are Not Entitled to Qualified Immunity on Plaintiff's Section 1983 Claim Because They Knowingly Deprived Plaintiff of Her Property Rights Derived From the Implied Contract and Express Covenant Created by the Gunnison Personnel Policies Without Due Process of Law The evidence of record clearly shows that Defendants DeVore and Martin are not entitled to the qualified immunity they plead because they unconstitutionally deprived Plaintiff of her property right in her continued employment, which was derived from the

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implied contract as well as the express covenant created by Personnel Policies of Gunnison. 1. The Gunnison Personnel Policies Created an Implied Contract Though in Colorado an employment relationship is presumed to be at-will, this presumption is rebuttable under certain circumstances. Continental Airlines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987). An employee originally hired under a contract terminable at will may be able to enforce the termination procedures in an employee manual under ordinary contract principles if the employee can demonstrate that: (1) in promulgating the termination procedures the employer was making an offer to the employee ­ that is, the employer manifested his willingness to enter into a bargain in such a way as to justify the employee in understanding that his assent to the bargain was invited by the employer and that the employee's assent would conclude the bargain; and (2) her initial or continued employment constituted acceptance of and consideration for those procedures. Id. In such a situation, the termination procedures in such an employee manual may be construed as an offer of a unilateral contract. Id. at 711 n.1. In Churchey v. Adolph Coors Co., 759 P.2d 1336, 1348-49 (Colo. 1988), the Colorado Supreme Court provided more detailed explanation for the basis of its holding in Keenan in support of the idea that personnel policies or practices can form the basis of an enforceable contract between employer and employee: While an employer need not establish personnel policies or practices, where an employer chooses to establish such policies and practices and makes them known to its employees, the employment relationship is presumably enhanced. The employer secures an orderly, cooperative and loyal work force, and the employee the peace of mind associated with job security and the conviction that he will be treated fairly. No 17

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pre-employment negotiations need take place and the parties' minds need not meet on the subject; nor does it matter that the employee knows nothing of the particulars of the employer's policies and practices or that the employer may change them unilaterally. It is enough that the employer chooses, presumably in its own interest, to create an environment in which the employee believes that, whatever the personnel policies and practices, they are established and official at any given time, purport to be fair, and are applied consistently and uniformly to each employee. The employer has then created a situation 'instinct with an obligation.'

[emphasis supplied]. When a local government acts within its statutory authority to limit its power to discharge personnel by promulgating and issuing a personnel handbook, the principles outlined in Keenan and Churchey apply, and a discharged employee may rely on the provisions in the handbook to state a claim for relief for breach of implied contract. Adams County Sch. Dist. No. 50 v. Dickey, 791 P.2d 688, 694 (Colo. 1990). Here, the Personnel Policies created an implied contract with Plaintiff because Gunnison promised an appeal process to Plaintiff in the event she was dismissed or suffered an adverse employment action. See Keenan, 731 P.2d at 711 n.1; Ex. 6, Personnel Policies, pp. 38 and 44; Ex. 7, Acknowledgment of Receipt of Personnel Policies; Ex. 3, DeVore Deposition, p. 64, ll. 15 ­ 18; and 5, Martin Deposition p. 6, ll. 2 ­ 8, 18 ­ 24. Plaintiff's assent, by virtue of signing an acknowledgment and agreement to follow the policies, as well as her continued employment with Gunnison, concluded the bargain. See Keenan, 731 P.2d at 711 n.1; Churchey, 759 P.2d at 1348; Ex. 7, Acknowledgment of Receipt of Personnel Policies. In addition, there were no

disclaimers in the Personnel Policies that notified Plaintiff that her employment was at will, which would defeat her claim of breach of contract. See Vasey v. Martin Marietta

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Corp., 29 F.3d 1460, 1464 (1994) (quoting Keenan, 731 P.2d at 711); Ex. 6, Personnel Policies. Moreover, the Personnel Policies are sufficiently specific to permit the Court to understand the obligation assumed and enforce the procedure for an appeal. See Soderlun v. Public Serv. Co. of Colo., 944 P.2d 616, 620 (Colo. App. 1997), cert. denied, (1997) (where alleged promise is claimed to be part of an [implied] contract it must be sufficiently specific so that judiciary can understand obligation assumed and enforce promise according to its terms); Ex. 6, Personnel Policies, pp. 38 and 44. Here, it is clear that if Mrs. Laird "fail[ed] to perform [her] assigned duties in an efficient and effective manner", she could be "dismissed" and such a dismissal entitled her to invoke an appeal procedure and the appointment of an independent hearing officer pursuant to the provisions of the "Disciplinary Action" and "Appeal Procedures" sections within the Personnel Policies. Ex. 3, DeVore Deposition p. 22, ll. 15 ­ 20; Ex. 6, Personnel Policies, pp. 38 and 44. A disciplinary action "refers to action taken by a Supervisor, Department Head, Elected Official or Board against an employee for cause including, but not limited to, counseling, warning, reprimand, suspension, review status, demotion, reassignment or dismissal." Ex. 6, Personnel Policies, p. 38. "Cause for disciplinary action shall include acts involving unsatisfactory work performance by an employee... including, but not limited to... (e) [a f]ailure to perform assigned duties in an efficient and effective manner;" Id. An employee may "request a formal hearing by resorting to the formal appeal procedure only after... receiving [a] written notice of dismissal." Id. at p. 44.

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While Mrs. Martin's termination letter from Gunnison does not use the word "dismiss," it clearly tells her that a major term of her employment has been affected and that her services will no longer be required by Gunnison. Ex. 8, Letter from Martin, September 18, 2002. The effect is the same and she had an absolute right to appeal. Defendants' attempt to label her dismissal as a "reduction in force" or as a "lay-off" is nothing but a pretext for the unconstitutional deprivation of her constitutionally protected property rights. See Gansert v. Colorado, 348 F.Supp.2d 1215, 1225 n.3 (D. Colo. 2004) (whether plaintiff was "terminated" as she alleged, or she "chose to retire" as defendants asserted, was immaterial for purposes of motion for summary judgment at issue because it was apparent from the memorandum written by one of the defendants that some adverse employment action occurred to plaintiff). A critical inspection of the evidence to-date as well as the provisions of the Personnel Policies reveals that Mrs. Laird was in fact dismissed from her job. Defendants admit that Plaintiff was separated from her employment with Gunnison because she had an inability to efficiently and effectively perform her job given the increased and/or higher levels of service demanded by the community. Ex. 3 DeVore Deposition p. 8, l. 12 ­ p. 9, l. 22; p. 27, l. 11 - p. 29, l. 3; Ex. 5, Martin Deposition, p. 47, l. 9 ­ p. 48, l. 1. According to Defendants, Plaintiff's inability to efficiently and effectively meet the demands of the community necessitated her dismissal from the job and replacement by someone who could adequately and independently provide those services without the need for Defendant Martin's assistance, which she could no longer provide to Plaintiff given the increased demands on her own time. Ex. 5, Martin

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Deposition, p. 47, l. 9 ­ p. 48, l. 1. Consistent with this reasoning, it was thought that a person with a Master's of Library Science degree would be better able to meet these increased demands and work more independently from Ms. Martin. See Ex. 5, Martin Deposition, p. 43, l. 25 ­ p. 48, l. 1. Though Defendants maintain that the reason that Plaintiff was "laid off" from her job was due to a "reduction in force" stemming from budget constraints and the "reclassification" of Plaintiff's job, the evidence reveals this explanation to be implausible for a number of reasons. First, the evidence demonstrates that Defendants failed to follow the Personnel Policies' reclassification procedure. A job "reclassification" occurs "[w]hen the position in which an employee is classified is determined to be inappropriate and the employee is placed (classified) in a position, either new or existing, which more accurately defines the work the employee is performing." Ex. 6, Personnel Policies, p. 59. Plaintiff should not have been terminated from her employment with Gunnison. Instead, she should have been "placed (classified) in a position, either new or existing, which more accurately define[d] the work the employee [wa]s performing." Id. This definition is congruent with the express prohibition that "[n]o reclassification shall be proposed solely for the purposes of effecting a pay grade change or promoting or demoting an employee." Ex. 6, Personnel Policies, p. 11. Defendants' explanation is also implausible because a "layoff" is defined as the "non-disciplinary separation of an employee from the County because of lack of work, non-availability of funds, abolishment of a position or a reduction in service levels". Ex. 6, Personnel Policies, p. 59. However, the evidence is that there was certainly more

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than enough work to go around and a need for increased service levels: it is undisputed that Defendants' actions originated as a reaction to the higher levels of service demanded by the community. Ex. 3, DeVore Deposition p. 8, l. 12 ­ p. 9, l. 22; p. 27, l. 11 - p. 29, l. 3; Ex. 5, Martin Deposition, p. 47, l. 9 ­ p. 48, l. 1; p. 70, l. 15 - p. 71, l. 23. Moreover, Plaintiff's position was not abolished in the sense that the position that Plaintiff occupied was eliminated; it merely matriculated into a position for which Plaintiff could not qualify because she lacked the requisite formal education. Compare Ex. 1 with Ex. 2. Though it may be true that the Gunnison budget mandated a "reduction in force", Defendants admit (Ex. 5, Martin Deposition, p. 70, l. 15 - p. 71, l. 23) that such reduction "ultimately happened" because of the reclassification of the position that Plaintiff held; a reclassification which occurred because Plaintiff allegedly could no longer keep up with the needs of the community. Defendants, by sleight of hand, simply recreated and renamed the position Plaintiff had occupied thereby ostensibly avoiding the need to provide her with an appeals hearing as set forth by the Personnel Policies. They thus avoided the need to retain an employee they could suddenly no longer afford. The evidence to-date clearly shows Defendants' maneuvers amounted to a dismissal of Plaintiff because she could not perform her assigned duties in an efficient and effective manner as required of her by the increased, or higher, levels of service requested by the community. Ex. 3, DeVore Deposition, p. 8, l. 12 ­ p. 9, l. 22; p. 27, l. 11 - p. 29, l. 3; Ex. 5, Martin Deposition, p. 47, l. 9 ­ p. 48, l. 1. Defendants' arguments throughout various portions of their Brief to the effect that Plaintiff testified that she cannot recall specific provisions of the Personnel Policies or

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that she cannot recall specific promises made by Defendants or the policies is of no avail for two reasons. Most importantly, the Colorado Supreme Court has made it clear that an enforceable contract can arise from personnel policies and "[n]o

pre-employment negotiations need take place and the parties' minds need not meet on the subject; nor does it matter that the employee knows nothing of the particulars of the employer's policies and practices or that the employer may change them unilaterally." Churchey, 759 P.2d at 1348-49. Moreover, it must be kept in mind that Defendants' Brief sometimes cites to portions of Plaintiff's deposition testimony where she is asked to recall events which happened as long as some eighteen (18) years ago. It is

misleading to equate Plaintiff's inability to recall some events with an inability to dispute Defendants' arguments. Defendants' request for summary judgment on this issue fails and the evidence, even when viewed in the light most favorable to Defendants, supports an entry of summary judgment in favor of Plaintiff as to her breach of implied contract claim. 2. The Gunnison Personnel Policies Also Created an Express Covenant of Good Faith and Fair Dealing The stated purpose of the Gunnison County Personnel Policies "is to provide a framework for efficient, effective, and fair personnel management for all County operations." Ex. 6, Personnel Policies, p. 1 [emphasis supplied]. Parties to a contract may, as a part of their agreement, enter into an express covenant of good faith and fair dealing. Decker v. Browning-Ferris Industries of Colorado, Inc., 931 P.2d 436, 443 (Colo. 1997). Such a covenant is designed to ensure the enforcement of other

obligations assumed by the parties. Id. (citing Amoco Oil Co. v. Ervin, 908 P.2d 493, 23

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498 (Colo. 1995); Foley v. Interactive Data Corp., 47 Cal. 3d 654, 765 P.2d 373, 389, 254 Cal. Rptr. 211 (Cal. 1988)). Such a covenant in effect becomes a term of the employment agreement. Id. (citing Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1038 (Ariz. 1985); Foley, 765 P.2d at 389; Metcalf v. Intermountain Gas Co., 778 P.2d 744, 749 (Idaho 1989)). The covenant of good faith and fair dealing in employment matters thus serves to protect the integrity of all of the promises made by the parties to the agreement setting forth the terms and conditions of employment. Id. (citing Metcalf, 778 P.2d at 749). A breach of such a covenant therefore constitutes a breach of an obligation created by the contract. Id. (citing Foley, 765 P.2d at 394; Metcalf, 778 P.2d at 749). Thus, if an employer makes an express promise to deal with an employee in a fair manner, and the employer breaks its promise, the employee has a cause of action for breach of an express promise of fair and equitable treatment. Id. at 447 ­ 48. Here, the overwhelming evidence militates against a finding for Defendants, and instead, supports an entry of judgment in favor of Plaintiff on this claim for relief. Despite their promise to conduct their personnel management in a fair manner, Defendants deliberately and quietly maneuvered Plaintiff out of a job she had diligently occupied for over 14 years. Defendants never told Plaintiff about their "reclassification" scheme, though they knew it would have a detrimental effect on her (Ex. 4, Mary Jo Laird Depo., p. 142, ll. 11 ­ 23; Ex. 9, Deborah Moore Depo., p. 35, ll. 8 - 152) and though they were required to reclassify Plaintiff "in a position, either new or existing

Deborah Moore was Gunnison's Hum an Resource Coordinator at the tim e of Plaintiff's dism issal. Ex. 9, Moore Deposition, p. 16, ll. 19 ­ 21.

2

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which more accurately define[d] the work the employee [wa]s performing."

Ex. 6,

Personnel Policies, p. 59. Defendants never told Plaintiff that she should obtain a Master's of Library Science degree if she desired to continue her employment (which she did). Ex. 4, Laird Deposition, p. 125, l. 23 ­ p. 126, l. 2; p. 171, ll. 1 ­ 10; Ex. 3, DeVore Deposition, p. 66, ll. 7 ­ 17. While not mandatory, Plaintiff's length of service was a factor that Defendants could have considered in making the reduction in force decision, but they chose not to do so. Ex. 6, Personnel Policies, p. 12; Ex. 5, Martin Depo., p. 48, l. 13 ­ p. 49, l. 11. In fact, they were specifically advised by Cynthia Barnes, an employment law attorney with Gunnison's Risk Management Department, that it "would be better to eliminate a less senior person". Ex. 10, Email from Cynthia Barnes, July 25, 2002; Ex. 9, Moore Deposition, p. 98, ll. 9 ­ 14; and Ex. 3, DeVore Deposition, p. 29, l. 22 ­ p. 30, l. 5. No one at the Crested Butte library had more seniority than Plaintiff. Ex. 4, Laird Depo., p. 132, ll. 19 ­ 22. Plaintiff could only think of one person more senior than her in the whole library system at the time of her dismissal. Id. at p. 132, l. 16 ­ p. 133, l. 2. Indeed, even Ms. Martin could only think of one other person more senior than Plaintiff in the whole system. Ex. 5, Martin

Deposition, p. 63, l. 16 ­ p. 65, l. 1. Defendants never told Plaintiff that the community was demanding a higher level of professionalism at the library so as to permit Plaintiff to, perhaps, attempt to meet these increased demands. Ex. 4, Laird Deposition, p. 133, l. 15 ­ p. 136, l. 22.

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Any reasonable inference from this evidence precludes summary judgment in Defendants' favor. Indeed, the only reasonable inference is that Defendants in fact broke their promise and treated Plaintiff unfairly. 3. Both the Implied Contract and the Express Covenant in the Gunnison Personnel Policies Created a Constitutionally Protected Property Interest The Due Process Clause of the Fourteenth Amendment provides that a state may not "deprive any person of life, liberty, or property without due process of law. . . ." U.S. Const. Amend. XIV. The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. Board of Regents v. Roth, 408 U.S. 564, 576 (1972). Property

interests may be created by ordinance or implied contract. Bishop v. Wood, 426 U.S. 341, 344 (1976); Dickey, 791 P.2d at 694. A property interest under the United States Constitution exists when an employee has a legitimate claim of entitlement to continued employment under state law. Roth, 408 U.S. at 576 (1972). A procedural due process claim requires a two-step analysis: "(1) did the individual possess a protected interest such that the due process protections were applicable; and if so, then (2) was the individual afforded an appropriate level of process." Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)). In Colorado, a terminated public employee may state a claim for relief for deprivation of property without due process of law if rules or mutually explicit understandings, which the public employer was authorized to enact or make the basis

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of a binding agreement, create a sufficient expectancy of continued employment to give the employee a legitimate claim of entitlement. Dickey, 791 P.2d at 795. Under

Colorado law, an employee personnel handbook may grant to an employee a property interest in continued employment which entitles the employee to the protections of the procedural due process guarantee of the Fourteenth Amendment to the United States Constitution. Id. at 794. Courts addressing this issue have generally held that when state law recognizes that employee handbooks may form the basis of a contract action, the personnel policies and regulations in question determine whether the employee possessed a legitimate claim of entitlement under the due process clause. Id. at 795. Here, it is apparent that the Personnel Policies created an implied contract and an express covenant which created a recognized property interest to which the due process protections apply. It is also apparent from the foregoing discussion in sections III(A)(1) and (2) of this Response that Plaintiff was not afforded the appropriate level of process as it neither comported with the Personnel Policies or any reasonable interpretation of "fairness". 4. Defendants DeVore and Martin are Not Entitled to Qualified Immunity The qualified immunity doctrine shields governmental officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) [emphasis supplied]. "Once the defendant pleads qualified immunity, the burden shifts to the plaintiff to demonstrate (1) the defendant's conduct violated the law, and (2)

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the relevant law was clearly established when the alleged violation occurred." Migneault v. Peck, 158 F.3d 1131, 1139 (10th Cir. 1998) (citation omitted). In order to overcome the defense of qualified immunity, Plaintiff must make a particularized showing that the law is sufficiently clear that the particular Defendant would have known that his or her conduct was unconstitutional. See Patrick v. Miller, 953 F.2d 1240 (10th Cir. 1992). In order for the law to be sufficiently clear, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). As recently stated by the Tenth Circuit in Peterson v. Jensen, 371 F.3d 1199, 1202 (10th Cir. 2004), in describing the parameters of a "clearly established" precedent: "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful. . . ." The threshold test is simply whether "in light of pre-existing law the unlawfulness [is] apparent." Id. (citing Anderson v. Creighton, 483 U.S. 635, 639-40, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987)). The unlawfulness of terminating a public employee who has an expectation of continued employment based upon the provisions of a personnel manual, without due process, was apparent in September 2002 from the well-established Colorado law. At least 15 years prior to that time it had been established that an employee may be entitled to relief under ordinary contract principles. See Continental Airlines, Inc. v. Keenan, 731 P.2d 708 (Colo. 1987) and Churchey v. Adolph Coors Co., 759 P.2d at 1336 (Colo. 1988). Even before then, the United States Supreme Court clearly

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articulated that property interests may be created by ordinance, implied contract or when an employee has a legitimate claim of entitlement to continued employment under state law. Roth, Wood, supra. Gunnison, through its County manager, Defendant Ex. 3, DeVore

DeVore, knew of the Colorado law before Mrs. Laird's termination.

Deposition, p. 60, ll. 10 ­ 15. Defendants' knowing and intentional failure to follow the provisions of the "Disciplinary Action" and "Appeal Procedures" sections within the Personnel Policies, while acting under color of state law, not only constituted a breach of contract, but also deprived Plaintiff of her legitimate property claim of continued employment with Gunnison without due process of law as guaranteed to her by the Fourteenth Amendment to the Constitution and laws of the United States. Defendant Gunnison County is liable by virtue of the acts of Defendant DeVore, whose acts represented the official policy of Gunnison County in this instance. It is the law that a government entity may not be held liable under 42 U.S.C. § 1983 by way of the respondeat superior doctrine alone. Monell v. Dep't of Social Servs. of City of N.Y., 436 U.S. 658, 691 (1978); City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). In order to obtain a judgment against Gunnison, Mrs. Laird must prove that Gunnison itself supported the violation of rights alleged. Monell, 435 U.S. at 692-95; Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). Section 1983 liability attaches to a municipality only when "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury . . . ." Monell, 435 U.S. at 694.

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The question of who is a "policymaker" is a question of state law. Praprotnik, 485 U.S. at 124. In looking to state law, a court must determine which official has final, unreviewable discretion to make a decision or take an action. Id. at 127. To determine the identity of the final policymaker, the court considers whether: (1) the official is meaningfully constrained by policies made by another; (2) the official's decisions are subject to meaningful review; and (3) the decisions are within the realm of the official's authority. Randle v. City of Aurora, 69 F.3d 441, 448 (10th Cir. 1995). Liability will be imposed on a governmental entity for the actions of an official who is subject to review by other policymakers or who is limited by the policy and decisions of others only if the final policymaker ratifies the decision of the subordinate. Praprotnik, 485 U.S. at 127. The final policymaker must not only approve the decision, but also adopt the basis for the decision, and the ratification must be the moving force, or cause, of the alleged constitutional violation. Praprotnik, 485 U.S. at 127; see also David v. City & County of Denver, 101 F.3d 1344, 1358 (10th Cir. 1996) ("If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final."). Here, Defendant John DeVore, unlawfully denied Plaintiff due process of law by refusing to allow the appeal procedures contracted for by Gunnison. His testimony indicates that he, in fact, is the official with final, unreviewable discretion to make a decision. See Ex. 3, DeVore Deposition, p. 4, l. 19 ­ p. 5, l. 3. He approved, ratified, and adopted the basis for the decision that led to Plaintiff being, in essence, terminated due to her lack of having a Master's in Library Science degree which was required by

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the "new position" created by the "reclassification" process initiated by Defendant Martin. See generally, Ex. 3, DeVore Deposition, p. 8, l. 12 ­ p. 20, l. 24; Ex. 11, Letter from DeVore, September 30, 2002. His denial of Plaintiff's request for a hearing,

encapsulated in Exhibit 11, was the proximate cause of the violation of Plaintiff's Constitutional rights. Likewise, Martin had no Gunnison County employees supervising her operation of the Gunnison Library system. Ex. 3, DeVore Depo., p. 12, l. 20 ­ p. 13, l. 3. Therefore, it is apparent that Defendants DeVore and Martin are not entitled to qualified immunity and that Gunnison is liable by virtue of the acts of Defendant DeVore. B. Questions of Fact Preclude Entry of Summary Judgment as to Plaintiff's Promissory Estoppel Claim In order to prove a claim for promissory estoppel, a plaintiff must establish that: (1) the promisor made a promise to the promisee; (2) the promisor should have reasonably have expected that the promise would induce action or forbearance by the promisee; (3) the promisee reasonably relied on the promise to the promisee's detriment; and (4) the promise must be enforced to prevent injustice. Lufti v. Brighton Community Hosp. Ass'n, 40 P.3d 51, 59 (Colo. App. 2001) (citation omitted). To establish this claim based upon the provisions of the Personnel Policies, Plaintiff must make a showing "that the employer should reasonably have expected the employee to consider the employee manual as a commitment from the employer to follow the termination procedures, that the employee reasonably relied on the termination procedures to [her] detriment, and the injustice can be avoided only by enforcement of the termination procedures." Keenan, 731 P.2d at 712. In Cleary v. American Airlines, 31

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Inc., 111 Cal. App. 3d 443, 455-56, 168 Cal. Rptr. 722, 729 (1980), an opinion cited favorably by both the Keenan and Churchey courts, the Cleary court found two factors "of paramount importance" to its decision to use a promissory estoppel analysis: (1) a long history of satisfactory service by employee; and (2) existence of termination policy set forth by employer. Here, the Personnel Policies promised an appeal process to Plaintiff in the event she was dismissed or suffered an adverse employment action. See Keenan, 731 P.2d at 711 n.1; Churchey, 759 P.2d at 1349. In addition, the Personnel Policies also

promised that Defendants would act fairly in dealing with Gunnison personnel, including Plaintiff. Ex. 6, Personnel Policies, p. 1. Gunnison should have reasonably expected that the promises in the Personnel Policies would induce action or forbearance by its employees, including Plaintiff. Indeed, Gunnison made it a point to ensure that its employees not only acknowledged that Gunnison's Personnel Policies existed, but also that its employees agreed to be bound by the terms therein. Gunnison required its employees to execute an "Acknowledgment of Receipt" at the time Gunnison originally promulgated its policies, and every time the Personnel Polices were revised or amended. Ex. 7, Acknowledgment of Receipt of Personnel Policies; Ex. 9, Moore

Deposition, p. 124, ll. 1 - 21; Ex. 5, Martin Deposition p. 6, ll. 2 ­ 8, 18 ­ 24. Here Plaintiff reasonably relied on the promises in the Personnel Policies to her detriment. While she testified that the provisions of the Personnel Policies did not cause her to refrain from seeking alternative avenues of employment while she worked for Gunnison, she also testified that she believed she would be able to retain her job as long as she

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performed her work satisfactorily, and if any problems arose, she was nevertheless "entitled to an appeal procedure." Ex. 4, Laird Deposition, p. 65, ll. 6 ­ 12; p. 68, l. 22 p. 69, l. 21; p. 71, l. 21 ­ p. 72, l. 2; p. 76, ll. 2 ­ 24; p. 77, ll. 17 ­ 24. Indeed, not only did Plaintiff attempt to appeal her dismissal by discussing the matter with Defendant Martin, Plaintiff subsequently made a written request to Defendant DeVore that the appeals procedure be implemented. Ex. 12, Letter from Laird, September 25, 2002. The provisions of the Personnel Policies, including its promise to be "fair", must be enforced to prevent injustice in this case. V. CONCLUSION Gunnison's own policies and the testimony of its officials show that Plaintiff was entitled to an appeal process as set forth in the Personnel Policies as a result of her termination from employment. Calling her termination a "reduction in force" of one does not change the legal analysis or the factual circumstances presented here. Mrs. Laird's adverse employment action was in reality the equivalent of a disciplinary proceeding under §11.2(e) of the Personnel Policies (Ex. 6, p. 38) which provide discipline for inadequate performance. The Personnel Policies created an implied contract, and a Constitutionallyprotected right to Plaintiff in continued employment with Gunnison County. The denial of her due process right to the appeal process subjects Gunnison and the individual Defendants to liability under 42 U.S.C. § 1983. Furthermore, Defendants breached the express covenant of good faith and fair dealing found within the Personnel Policies. Defendants fail to demonstrate that reasonable jurors could find by a preponderance of

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the evidence that Defendants are entitled to a verdict on Plaintiff's: (1) 42 U.S.C. §1983; (2) Willful Breach of Contract/Express Covenant of Good Faith and Fair Dealing; and (3) Promissory Estoppel claims.

WHEREFORE, Plaintiff confesses that summary judgment is properly entered in Defendants' favor as to her 42 U.S.C. §1985 and Article II, Section 25, Colorado Constitution claims. Plaintiff respectfully requests that the Court deny Defendants' Motion for Summary Judgment and Brief filed therewith insofar as they are directed at Plaintiff's 42 U.S.C. §1983, Willful Breach of Contract/Express Covenant of Good Faith and Fair Dealing, and Promissory Estoppel claims, and that the Court enter summary judgment in Plaintiff's favor as to these claims, and grant such other and further relief this Court deems just and proper.

Respectfully submitted this 23rd day of May, 2006.

/s/ Nathan Davidovich Nathan Davidovich Ronald H. Nemirow Stuart A. Jay KENNEDY CHILDS & FOGG, P.C. 1050 17th Street, Suite 2500 Denver, CO 80265 Telephone: (303) 825-2700 Facsimile: (303) 825-0434 Email: [email protected] ; [email protected] [email protected] ATTORNEYS FOR PLAINTIFF 34

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CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on May 23rd, 2006, I filed the foregoing PLAINTIFF'S RESPONSE TO DEFENDANTS' BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, with the United States District Court for the District of Colorado via the CM/ECF System which will send notification to following individuals: Eric M. Ziporin, Esq. Senter Goldfarb & Rice 1700 Broadway, Suite 1700 Denver, Colorado 80290

/s/ Jennifer Shelby Jennifer Shelby

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