Free Motion for Summary Judgment - 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 MOTION FOR PARTIAL SUMMARY JUDGMENT WITH INCORPORATED LEGAL AUTHORITY

Plaintiff Mary Jo Laird, through undersigned counsel, pursuant to Fed.R.Civ.P 56(a), moves for Partial Summary Judgment on her First and Fourth Claims for Relief (Defendants' violation of 42 U.S.C. § 1983, and Willful Breach of Contract/Express Covenant of Good Faith and Fair Dealing, respectively). In addition, Plaintiff also

requests a judgment of the Court that Defendants are not entitled to qualified immunity. As shown below, the evidence adduced to-date establishes that Plaintiff was deprived without due process of a constitutionally-protected property interest in her employment with the County of Gunnison, and that Defendants breached an implied contract with the Plaintiff which was created by, and arose from, the "Personnel Policies" of Gunnison County.

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I. INTRODUCTION Plaintiff, Mary Jo Laird was employed by Gunnison County for over 14 years before she was terminated in September 2002. at the branch library in Crested Butte, Colorado. From 1993 until her termination, Mrs. Laird was the Branch Librarian at the Crested Butte Library. From at least 1996 until 2002, shortly before her termination, her job description contained the wording, under "Desired Minimum Qualifications", that the person in this position could have "any equivalent combination of education and experience", and that a "Masters of Library Science" was "preferred". Ex. 1, Position Description for Branch Librarian. Mrs. Laird did not have a Masters of Library Science degree. Rather, she has a Bachelors Degree in education. Her level of formal

education did not, however, present a problem until Gunnison reclassified her position on May 13, 2002 to that of Library Manager. See Ex. 2, Position Description for Library Manager. The job description of the "reclassified position" did not differ materially from the job description that Mrs. Laird had been performing for at least the past 6 years, except that it expressly required a Masters in Library Science degree, without permitting the equivalent in experience and education. Compare Ex. 1 with Ex. 2. On September 18, 2002, defendants notified Mrs. Laird that her position at the Crested Butte Library was being "eliminated" and that her services would no longer be needed after September 30, 2002. She was the victim of a "reduction in force" of one person ­ herself. See Ex.3, DeVore Depo., p. 15, ll. 1 ­ 3. She was told that she did

not qualify for the newly "reclassified" position because she did not have a Master's Degree in Library Science. It should be noted that Gunnison, before Plaintiff's

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termination, had a number of positions, including that of the County Manager, where equivalent experience could replace a degree. For example, Mr. DeVore, the County Manager, was in a job which preferred a master's degree, but his bachelor's degree together with equivalent experience was sufficient to employ and retain him in that position. Ex. 3, DeVore Depo., p. 5, ll. 7 ­ 17; p. 6, l. 14 ­ p. 7, l. 5. As shown below, Mrs. Laird had an express and implied contract with Gunnison, by virtue of the Personnel Policies, that she would not be dismissed, terminated, or demoted, or suffer an adverse employment action without being provided with the opportunity to appeal such action. These procedures in the Personnel Policies

converted her at-will employment into a Constitutionally-protected property right, which she could not be deprived of without due process as guaranteed by the Fourteenth Amendment to the Constitution of the United States. II. STATEMENT OF UNDISPUTED FACTS The following facts are undisputed: 1. Gunnison County is a county of the State of Colorado and the Board of County Commissioners is its governing body. Defs.' Answer to Third Am. Compl. and Jury Demand, ¶ 5. 2. Plaintiff started employment with Gunnison County in 1988 as assistant librarian at the Crested Butte branch library, and was promoted to Branch Librarian in approximately 1995. Ex. 4, Mary Jo Laird Depo., p. 104, ll. 5 ­ 9. 3. Beginning in 1989, Gunnison County adopted Personnel Policies which it

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gave to all employees, including Plaintiff. Defs.' Mem. Br. in Support of Mot. for Summ. J., § III, ¶ 4, April 26, 2005. 4. The Personnel Policies applied to all Gunnison County employees except as provided therein or by statute. Ex. 5, Personnel Policies, p. 1; Ex. 3, DeVore Depo., p. 64, ll. 15 ­ 18; Ex. 6, Martin Depo., p. 6, ll. 2 ­ 8, 18 ­ 24; Ex. 7, Acknowledgment of Receipt of Personnel Policies. 5. At all times relevant to Plaintiff's Complaint, Defendant John DeVore was Gunnison County's County Manager or Chief Executive Officer. Defs.' Answer to Third Am. Compl. and Jury Demand, ¶ 6. 6. Defendant DeVore was responsible for ensuring that Gunnison County employees complied with the Gunnison County Personnel Policies. Ex. 3, DeVore Depo., p. 20, ll. 16 ­ 24. 7. At all times relevant to Plaintiff's Complaint, Defendant Peggy Martin was the Library Director for the County of Gunnison answered to the Board of Trustees for the Gunnison County Public Library. Defs.' Answer to Third Am. Compl. and Jury Demand, ¶ 7. 8. As the Library Director for the County of Gunnison, Defendant Martin had authority to hire and fire library staff, including Plaintiff. Ex. 3, DeVore Depo., p. 64, ll. 5 ­ 14; Ex. 6, Martin Depo., p. 12, ll. 7 ­ p. 13, l. 15. 9. The Personnel Policies provide that an employee cannot be dismissed as a form of disciplinary action, without cause. Ex. 5, Personnel Policies, pp. 38 ­ 39.

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10.

The Personnel Policies provide that, an employee who receives a written notice of dismissal may request a formal hearing by resorting to the formal appeal procedures. Id. at pp. 44 ­ 45.

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Defendant DeVore had the sole authority to decide whether or not to grant Plaintiff an appeal. Ex. 3, DeVore Depo., p. 64, ll. 1 ­ 4. 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). Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). 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). A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. Celotex Corp. v. Catrett,

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477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir. 1992). Once a properly supported summary judgment motion is made, the opposing party must set forth highly specific facts and data showing there is a substantial genuine material issue of fact, since a summary judgment is a weapon of the Court intended to screen out sham issues. National Life Ins. Co. v. Silverman, 454 F.2d 899, 909 n.8 (D.C. Cir. 1971); United States v. Prince, 348 F.2d 746, 748 (2d Cir. 1965). Assertions, by affidavit or otherwise, that a genuine issue of fact exists for trial, or mere denials, or conclusory denials even if under oath, are insufficient to defeat a summary judgment. Fireman's Ins. Co. v. Gulf P. R. Lines, 349 F. Supp. 952, 964 (D.C. P.R. 1972) (citing Bruce Construction Corporation v. United States, 242 F.2d 873 (5th Cir. 1957)). Furthermore, a party opposing a summary judgment cannot offer evidence that by its nature is so incredible as to be unacceptable by reasonable minds, or that assuming its truth has no legal probative force. Dawn v. Sterling Drug, 319 F. Supp. 358 (D.C. Cal. 1970). A court must disregard evidence too incredible to be believed. Tomatoes v. United States, 211 F.2d 249 (7th Cir. 1954); Dewey v. Clark, 180 F.2d 766 (D.C. Cir. 1950). The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson, 477 U.S. at 250. However, a court may not consider "evidence" that is merely hearsay or general opinions unsupported by fact. Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995). In addition, "the mere existence of a scintilla

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of evidence in support of the nonmovant's position is insufficient to create a dispute of fact that is 'genuine'; an issue of material fact is genuine only if the nonmovant presents facts such that a reasonable jury could find in favor of the nonmovant." Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997); see also Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993). IV. ARGUMENT A. GUNNISON COUNTY'S "PERSONNEL POLICIES" CREATE AN IMPLIED CONTRACT WITH PLAINTIFF WHICH REBUTS HER PRESUMED "AT WILL" EMPLOYMENT Generally, an employee who is hired in Colorado for an indefinite period of time is an "at will employee," whose employment may be terminated by either party without cause and without notice, and whose termination does not give rise to a cause of action. Continental Airlines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987). This presumption of "at will" employment, however, is rebuttable under certain circumstances. Keenan, 731 P.2d at 711. 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

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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 its holding in Keenan that personnel policies or practices can by themselves create 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 preemployment 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 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, attached as Exhibit 5, created an implied contract with Plaintiff because, in promulgating them, Gunnison made an offer to Plaintiff in such

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a way as to manifest its willingness to enter into a bargain whereby it 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. 5, Personnel Policies, pp. 38 and 44; Ex. 7, Acknowledgment of Receipt of Personnel Policies; Ex. 3, DeVore Depo., p. 64, ll. 15 ­ 18; and Ex. 6, Martin Depo., p. 6, ll. 2 ­ 8, 18 ­ 24. Plaintiff's assent, by virtue of signing the 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 Corp., 29 F.3d 1460, 1464 (1994) (quoting Keenan, 731 P.2d at 711); Kroekel v. United States Marshals Serv., 1999 U.S. Dist. LEXIS 23399, 41-44 (D. Colo. 1999); Ex. 5, 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.1 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. 5, Personnel Policies, pp. 38 and 44.

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Though, as discussed below, portions of the Personnel Policies are also am biguous and deficient.

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As will be shown in subsection IV(D) below, Defendants breached the implied contract created by the provisions of the Personnel Policies by failing to provide Plaintiff with an appeal process when she was dismissed from her employment with Gunnison County. B. GUNNISON COUNTY'S "PERSONNEL POLICIES" CONTAIN AN EXPRESS COVENANT OF GOOD FAITH AND FAIR DEALING The Gunnison County Personnel Policies' stated purpose "is to provide a framework for efficient, effective, and fair personnel management for all County operations." Ex. 5, 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, 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 protects 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 10

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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 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 damage her. Ex. 4, Laird Depo., p. 142, ll. 11 ­ 23; Ex. 8, Deborah Moore Depo., p. 35, ll. 8 - 15.2 Defendants never told her that she must earn an MLS degree if she wanted to keep her job (which she did). Ex. 4, Laird Depo., p. 125, l. 23 ­ p. 126, l. 2; p. 171, ll. 1 ­ 10; Ex. 3, DeVore Depo., p. 66, ll. 7 ­ 17. While not mandatory, the 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. 5, Personnel Policies, p. 12; Ex. 6, Martin Depo., p. 48, l. 13 ­ p. 49, l. 11. 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. 23 ­ p. 133, l. 2. Indeed, even Ms. Martin could only think of one other person more senior than Plaintiff in the whole system. Ex.6, Martin Depo., p. 63, l. 16 ­ p. 65, l. 1. Defendants never told Plaintiff that the community was demanding a higher level of

Deborah Moore was Gunnison's Hum an Resource Coordinator at the tim e of Plaintiff's dism issal. Ex. 8, p. 16, ll. 19 ­ 21.

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professionalism at the library so as to permit Plaintiff to, perhaps, attempt to meet these increased demands. Ex. 4, Laird Depo., p. 133, l. 15 ­ p. 136, l. 22. Given the foregoing, Plaintiff respectfully requests the Court enter judgment in her favor as to this claim for relief because Defendants cannot present facts such that a reasonable jury could find in favor of Defendants. Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997). C. PLAINTIFF HAD A PROTECTED PROPERTY INTEREST IN HER CONTINUED EMPLOYMENT WITH GUNNISON WHICH COULD NOT BE TAKEN FROM PLAINTIFF ABSENT DUE PROCESS OF LAW 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 safeguards the interests a person has already acquired in specific benefits. Board of Regents v. Roth, 408 U.S. 564, 576 (1972). These interests ­ property

interests ­ may take many forms. Id.; see also Perry v. Sindermann, 408 U.S. 593, 601 (1972) (property interests subject to procedural due process protection are not limited by a few rigid, technical forms). Property interests are not created by the Constitution. Roth, 408 U.S. at 577. Instead, they are created, and their dimensions are defined, by existing rules or understandings that stem from an independent source such as state law ­ rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Id.; see also Casias v. City of Raton, 738 F.2d 392, 394 (10th Cir. 1984) (sufficiency of public employee's claim of entitlement determined by

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reference to state law). 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. To assess whether an individual was denied procedural due process, "courts must engage in a two-step inquiry: (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); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). A terminated Colorado public employee states a claim 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 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. "The hallmark of property, the Court has emphasized, is an individual entitlement grounded in state law, which cannot be removed except `for cause.'" Logan v.

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Zimmerman Brush Co., 455 U.S. 422, 430 (1982). An essential principle of due process is that a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). "'The root requirement of the Due Process Clause [is] that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.'" Id. (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in original). "Some kind of hearing" is constitutionally required prior

to the discharge of an employee who has a constitutionally protected property interest in his or her employment. Loudermill, 470 U.S. at 542; Roth, 408 U.S. at 569-70;

Sindermann, 408 U.S. at 599. In Loudermill, 470 U.S. at 542, the Court held that terminated employees with a constitutionally protected property interest in continued employment are entitled to "some form of pretermination hearing" based on a "balancing of the competing interests at stake." See Id. at 543 ­ 46 (discussion of required formality and procedural requisites of a constitutionally sufficient hearing). D. PLAINTIFF WAS ENTITLED TO DUE PROCESS VIA THE "PERSONNEL POLICIES' APPEAL PROCESS BECAUSE SHE WAS DISMISSED DUE TO AN INABILITY TO PERFORM HER JOB EFFICIENTLY AND EFFECTIVELY 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 to-date as well as the provisions of the Personnel Policies reveals that the real reason for her termination was her alleged inability to perform her job given the higher levels of service which the community

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demanded. Ex. 3, DeVore Depo., p. 8, l. 12 ­ p. 9, ll. 22; Ex. 6, Martin Depo., p. 47, l. 9 ­ p. 48, l. 1. Under Gunnison's Personnel Policies, an employee could be dismissed if she "fail[ed] to perform assigned duties in an efficient and effective manner,.", Ex. 5, pp. 38 and 44, but such a dismissal entitled the employee to invoke an appeal procedure and the appointment of an independent hearing officer to determine if cause existed for such a dismissal pursuant to the provisions of the "Disciplinary Action" and "Appeal Procedures" sections within the Personnel Policies. Ex. 3, DeVore Depo., p. 22, ll. 15 ­ 20; Ex. 5, Personnel Policies, pp. 38 and 44. Similarly, if Mrs. Laird were merely

demoted to another position she would also have been entitled to an appeal, before an independent hearing officer. Ex. 3, DeVore Depo., p. 51, ll. 5 ­ 7. By contrast, if there was a reduction in force instead of a dismissal, the employee was not entitled to an appeal. Id. at p. 22, ll. 9 ­ 14. In the Policies, 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. 5, 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 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 Gunnison no longer requires her services. Ex. 9, Letter from Martin, September 18, 2002. Defendants' attempt to label her dismissal as a "reduction in force" or as a "layoff" is nothing but a pretext for the unconstitutional deprivation of her constitutionally protected property rights. The effect is the same and she had an absolute right to appeal. 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 a summary judgment motion because it was apparent from defendant's memorandum that some adverse employment action occurred to plaintiff). 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. See Ex. 10, Letter from DeVore, September 30, 2002. However, the Personnel Policies contain no guidelines for determining when an employee is to be laid off as part of a "reduction in force." Ex. 5, Personnel Policies, pp. 12 ­ 13; Ex. 3, DeVore Depo., pp. 51, l. 25 ­ p. 52, l. 10. In addition, there is no definition provided for a "reduction in force." Ex. 5, Personnel Policies p. 59. Moreover, there is no explicit procedure which would provide that employee the right to an appeal in the event that they are "laid off." Id. at pp. 38 ­ 45. 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

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position, either new or existing, which more accurately defines the work the employee is performing." Id. at p. 59. Even a cursory examination of this definition demonstrates that 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 defines the work the employee is 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." Id. at p. 11. The evidence shows that defendants dismissed Plaintiff from her position because she could not perform the increased duties the community required of her . Ex. 3, DeVore Depo., p. 8, l. 12 ­ p. 9, ll. 22; Ex. 6, Martin Depo., p. 47, l. 9 ­ p. 48, l. 1. Plaintiff's inability to meet the community's demands necessitated that she be dismissed and replaced 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. 6, Martin Depo., p. 47, l. 9 ­ p. 48, l. 1. E. DEFENDANTS VIOLATED 42 U.S.C. § 1983 Defendants' knowing and intentional failure to follow the provisions of the "Disciplinary Action" and "Appeal Procedures" sections of 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

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Gunnison without due process of law as guaranteed to her by the Fourteenth Amendment to the Constitution and laws of the United States. Both Defendants DeVore and Martin testified they reclassified plaintiff's position because Plaintiff 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 Depo., p. 8, l. 12 ­ p. 9, ll. 22; Ex. 6, Martin Depo., p. 47, l. 9 ­ p. 48, l. 1. Given that Plaintiff's was actually dismissed due to her inability to perform her job, plaintiff was entitled to appeal that dismissal under the the "Disciplinary Action" and "Appeal Procedures" sections of the Personnel Policies. The Personnel Procedures apply to Defendant Martin as a Gunnison County employee. Ex. 5, Personnel Policies, p. 1; Ex. 6, Martin Depo., p. 6, ll. 2 ­ 8, 18 ­ 24. Defendant DeVore is liable for violating 42 U.S.C. § 1983 because he was responsible for ensuring that Gunnison County employees complied with the Gunnison County Personnel Policies. Ex. 3, DeVore Depo., p. 20, ll. 16 ­ 24. Indeed, he testified that he knew of the applicable remedies available to an employee such as Plaintiff depending upon how her employment was terminated with the County. Id. at p. 22, l. 9 ­ 20. 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).

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To obtain a judgment against Gunnison County, Mrs. Laird must prove that the County 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. 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 government 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.").

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Here, County Manager Defendant DeVore unlawfully denied Plaintiff due process by refusing to allow the appeal procedures which Gunnison County promised to apply. His testimony shows that he is the official with final, unreviewable discretion to make that decision. See Ex. 3, DeVore Depo., p. 4, l. 19 ­ p. 5, l. 3. He approved, ratified, and adopted the basis for the decision that led to Plaintiff being "laid off" due to her lack of having a MLS degree which was required by the "new position" created by the "reclassification" process initiated by Defendant Martin. See generally, Ex. 3, DeVore Depo., p. 8, l. 12 ­ p. 20, l. 24; Ex. 10, Letter from DeVore, September 30, 2002. His denial of Plaintiff's request for a hearing, encapsulated in Exhibit 10, was the proximate cause of the violation of Plaintiff's Constitutional rights. Therefore, Defendant Gunnison County is liable under Plaintiff's first claim for relief. F. DEFENDANTS DEVORE AND MARTIN ARE NOT ENTITLED TO QUALIFIED IMMUNITY Defendants DeVore and Martin are not entitled to qualified immunity from Plaintiff's §§ 1983 claims. Qualified immunity shields government officials performing discretionary functions from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In resolving cases in which a defendant claims qualified immunity, the Court must first consider whether the facts, taken in a light most favorable to the party asserting injury, show the official's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If the Court finds a violation, it must next determine whether that right was clearly established at the time of the alleged violation. A right is considered to be 20

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"clearly established" if Supreme Court or Tenth Circuit case law exists on point, or if clearly established weight of authority from other circuits has found a constitutional violation from similar actions. Murrell v. School Dist. No. 1, 186 F.3d 1238, 1251 (10th Cir. 1999). 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)). Plaintiff had a property interest in her continued employment with Gunnison, as created by the Personnel Policies, which removed her employment from the at-will employment category. 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). As set forth above, the Colorado law in this regard was clearly established in the Keenan case in 1987. In addition, Gunnison, through its County manager, John Devore,

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knew of this law before Mrs. Laird's termination. Ex. 3, DeVore Depo., p. 60, ll. 10 ­ 15.

V. CONCLUSION Gunnison's own policies and the testimony of its own officials show that Plaintiff was entitled to the appeal process set forth in the Personnel Policies when Gunnison terminated plaintiff's employment. Calling her termination a "reduction in force" of one does not change this legal analysis. Mrs. Laird's adverse employment action was in reality a disciplinary proceeding under §11.2(e) of the Personnel Policies (Ex. 5, p. 38) which provide discipline for inadequate performance. The Personnel Policies created an implied contract, and a Constitutionallyprotected right to Plaintiff in a 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, warranting summary judgment in her favor as to this claim as well.

Respectfully submitted this 5th day of May, 2006.

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KENNEDY CHILDS & FOGG, P.C.

/s/ Nathan Davidovich Nathan Davidovich Ronald H. Nemirow Stuart A. Jay 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

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on May 5, 2006, I filed the foregoing PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT WITH INCORPORATED LEGAL AUTHORITY, 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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