Free Brief in Support of Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-0687-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, JOHN DeVORE, and PEGGY MARTIN, in their individual capacities, Defendants. ______________________________________________________________________________ DEFENDANTS' MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendants, 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, JOHN DeVORE, and PEGGY MARTIN, by their attorney, ERIC M. ZIPORIN, ESQ. and pursuant to Fed.R.Civ.P. 56, hereby submit their Memorandum Brief in Support of Motion for Summary Judgment as follows: I. INTRODUCTION

This case arises out of Plaintiff being laid off from her employment as a Branch Librarian with the County of Gunnison, Colorado, in September of 2002. As Defendants, Plaintiff has named Gunnison County, acting through the Board of County Commissioners of the County of

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Gunnison (hereinafter "the County"), the Board of Trustees for the Gunnison County Public Library (hereinafter "the Board"), Chief Executive Officer for Gunnison County, John DeVore (hereinafter "DeVore"), and the Library Director for Gunnison County, Peggy Martin (hereinafter "Martin"). Plaintiff has alleged the following five claims for relief against all Defendants in her Third Amended Complaint: · First Claim for Relief ­ violation of Plaintiff's due process rights under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983; · Second Claim for Relief ­ violation of Plaintiff's due process rights under the Fourteenth Amendment pursuant to 42 U.S.C. § 1985; · Third Claim for Relief ­ violation of Plaintiff's due process rights under Article II, Section 25, of the Colorado Constitution; · Fourth Claim for Relief ­ willful breach of contract/express covenant of good faith and fair dealing; and · Fifth Claim for Relief ­ promissory estoppel.

On April 7, 2004, Plaintiff filed her original Complaint in this case. Therein, Plaintiff alleged that her due process rights had been violated since she was not afforded any pretermination or post-termination procedure as required by the Gunnison County Personnel Policies (hereinafter "Personnel Policies"). [Complaint (Docket No. 1)]. Plaintiff made it clear in her original Complaint that she had received favorable reviews and consistent raises during her fourteen years with Gunnison County. [Complaint (Docket No. 1) at ¶ 4]. In response, Defendants filed their Motion for Summary Judgment and supporting memorandum brief on May 24, 2004.

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On February 11, 2005, roughly nine months after it was filed, Defendants' Motion for Summary Judgment was referred to United States Magistrate Judge Boyd N. Boland. A month or so later, on March 21, 2005, Plaintiff filed her Motion for Leave to File Amended Complaint, and contemporaneously filed her Verified Second Amended Complaint. Magistrate Judge

Boland granted Plaintiff's Motion for Leave to File Amended Complaint on April 13, 2005, accepted the Verified Second Amended Complaint, and further ordered that Defendants' Motion for Summary Judgment was deemed withdrawn as moot in light of the filing of Plaintiff's Verified Second Amended Complaint. Within that pleading, Plaintiff alleged that she was not an "at-will" employee and, much like her original Complaint, alleged that her due process rights had been violated since she was not provided an appeal as required by the Personnel Policies. Again, Plaintiff emphasized that she was a good employee and had received favorable reviews and consistent raises during her fourteen years with the County. Complaint (Docket No. 15) at ¶ 4]. Defendants filed another Motion for Summary Judgment and supporting memorandum brief on April 26, 2005. Plaintiff filed her response to Defendants' Motion for Summary Judgment or, in the alternative, a motion seeking discovery in order to respond to the motion. On June 14, 2005, Magistrate Judge Boland granted Plaintiff's request for discovery and gave her up to and including October 14, 2005 (or four months) to respond to the motion. In September of 2005, upon Plaintiff being represented by counsel, the parties conducted the following depositions: (1) Plaintiff; (2) DeVore; (3) Martin; and (4) Debbie Moore [Verified Second Amended

(hereinafter "Moore"), Personnel Director for the County. On October 13, 2005, the eve of her deadline to respond to Defendants' Motion for Summary Judgment, Plaintiff again filed a motion

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seeking to amend her Verified Second Amended Complaint and to file a Proposed Third Amended Complaint. The Proposed Third Amended Complaint (which is currently the operative Complaint in this case) again alleges that the County violated her rights by failing to grant her request for an appeal. However, it is now alleged, for the first time and some eighteen (18) months since the original Complaint was filed, that the County had made the determination that Plaintiff could not adequately perform her job, and that while she should have been terminated for cause (and thus entitled to an appeal under the Personnel Policies), the County and its employees conspired to characterize it as a layoff in order to avoid the cost and hassle of an appeal. [Proposed Third Amended Complaint and Jury Demand (hereinafter

"Complaint")(Docket No. 51) at ¶ 15). Ironically, within that same pleading, Plaintiff again emphasizes that she was "a good, loyal, and dedicated employee" who "received merit pay raises, letters of praise and appreciation, and favorable performance appraisals" before being laid off. [Complaint at ¶ 8]. Such an abrupt change in strategy is obviously telling of the inadequacy of Plaintiff's allegation that her due process rights were violated since she was not provided an appeal following the layoff. Applying the undisputed material facts set forth herein to the claims within the operative Complaint, Defendants' Motion for Summary Judgment and supporting memorandum brief seeks the dismissal of each and every one of Plaintiff's claims for relief as a matter of law. II. STATEMENT OF FACTS

Plaintiff began her employment with the County in 1988 as a Branch Librarian at the Crested Butte Library. In around 1999, Martin, the Library Director for Gunnison County, began receiving requests from the community that the library in Crested Butte needed to mature with

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the community and that a "professional" Librarian was needed. A specific request was later made from the Crested Butte Friends of Library Board, who donated $2,500 to the Library, that the donation be used for the purchasing of books selected by someone with a "library science" degree. While Plaintiff primarily handled the daily operations of the Crested Butte Library, it became clear to Martin that the need for an individual with a Masters in Library Science ("MLS") degree was required at the library as the time she had to assist Plaintiff in the day-today operations of the facility was becoming more limited. Since the Crested Butte Library had grown and her own time was becoming more limited, Martin decided that the library needed a more independent, autonomous, and professional position to run the facility. Martin thereafter sought to classify a new position of Branch Manager which included the requirement of an MLS degree. Martin's intent all along was simply to add the new position and she had no reason to believe that it would have an impact on the remaining positions at the library. The County Manager (position subsequently changed to Chief Executive Officer), DeVore, approved the new position, and then the matter was sent to the Classification Committee to determine its pay grade. The position was classified in May of 2002, and it was left to Martin's discretion as to when the new position would be filled. It was not until after the new position was classified that Martin investigated the potential funding for the position, and while doing so, she was informed that there was funding only for one "managerial-type" position at the Crested Butte Library. Martin looked into several alternatives besides eliminating any positions at the library. However, after waiting a period of time to consider these alternatives, as well as waiting for some personal issues in Plaintiff's life to resolve, Martin made the decision

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that the position held by Plaintiff would need to be eliminated in order to fit the salary for the new position within the library budget. On September 10, 2002, Martin met with Plaintiff and informed her of the new position as well as her layoff from the Crested Butte Library. Martin explained to Plaintiff the reasons behind the elimination of her position, and that if someone internally accepted the new position, there might be an opening for which Plaintiff could apply for at the Gunnison Library. It was explained to Plaintiff that she was laid off as her position had been eliminated due to a lack of funding. Martin sent a certified letter to Plaintiff on September 18, 2002 which informed Plaintiff of the layoff as of September 30, 2002, and invited Plaintiff to apply for any vacant position at the Gunnison Library. On September 25, 2002, Plaintiff sent a letter to DeVore requesting a hearing to appeal her termination. DeVore responded on September 30, 2002 and detailed the reasons for her being laid off as well as to explain that all County policies had been followed. Applications for the vacant position at the Gunnison Library were accepted, and Plaintiff submitted an application. Plaintiff was later interviewed, the position was offered to her, but she declined. III. STATEMENT OF UNDISPUTED FACTS

The following facts are established by the pleadings filed in this case, the discovery conducted to date, and the affidavits submitted herewith. Although there are, of course, some factual disputes between the parties, the following material, dispositive facts are undisputed: 1. Plaintiff began her employment with the County in 1988 as a Branch Librarian in

Crested Butte, Colorado. [Affidavit of John DeVore appended hereto as Exhibit A at ¶ 2].

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2.

At all times during her employment with the County, Plaintiff was an at-will

employee under Colorado law. [Exhibit A at ¶ 3]. 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]. 4. Upon being hired in 1988, Ms. Laird did not receive any Personnel Policies from

the County as the Personnel Policies were not adopted until February of 1989. [Exhibit B at p. 58, line 19 ­ p. 59, line 20]. 5. As such, upon being hired, there were no procedures within any personnel policy

that Ms. Laird relied upon as a condition of accepting her employment. [Exhibit B at p. 61, line 25 ­ p. 62, line 4]. 6. 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]. 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]. 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]. 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].

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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]. 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]. 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]. 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]. 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]. 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]. 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 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].

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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]. 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]. 19. As of September 1, 2002, Ms. Laird had received a merit-based raise every year.

[Exhibit B at p. 133, lines 3 ­ 14]. 20. Within the Personnel Policies, if an employee is dismissed as a form of

disciplinary action, there must be cause for the termination. [Exhibit A at ¶ 7; Affidavit of Deborah Moore and Gunnison County, Colorado Personnel Policies (Amended November 7, 2000; Revised 06/01 & 05/02) appended hereto as Exhibit C at p. 38, section 11-1]. 21. If an employee is dismissed for cause resulting from disciplinary action, the

Personnel Policies set forth appeal procedures which are to be adhered to if the employee receives written notice of dismissal. [Exhibit A at ¶ 8; Exhibit C at p. 44, section 13-1]. 22. "Dismissal" is defined within the Personnel Policies as "an involuntary separation

for cause from County employment." [Exhibit C at p. 58]. 23. Plaintiff is unaware of any facts to support the contention that Martin knew at the

time of the creation of the new position of Branch Manager that it would result in the elimination of her position. [Exhibit B at p. 192, lines 12 ­ 20]. 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].

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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]. 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]. 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]. 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]. 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]. 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]. 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]. 32. Ms. Laird believes that Martin, Moore, and DeVore conspired to terminate her

because since they all worked together, they had to know it. [Exhibit B at p. 182, lines 6 ­ 12].

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33.

Ms. Laird also believes that the three conspired against her because she was never

told about the new position that was being created, and because she was not surprised about the person who was chosen to fill the new position. [Exhibit B at p. 182, line 13 ­ p. 183, line 20]. 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]. 35. Ms. Laird believes that the agreement the three had to conspire against her was a

process and occurred throughout the whole year, and again was based on the fact that everything was done behind her back. [Exhibit B at p. 187, line 10 ­ p. 188, line 3]. 36. Ms. Laird is not claiming that she was terminated due to her age. [Exhibit B at p.

137, lines 9 ­ 12]. 37. Plaintiff acknowledges that maybe the elimination of her position was due to

budgetary reasons. [Exhibit B at p. 191, lines 1 ­ 9]. IV. STANDARD OF REVIEW

Summary judgment should be granted where, taking the facts in the light most favorable to the non-moving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Deepwater Investments, Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110-11 (10th Cir. 1991). Upon a motion for summary judgment, the moving party bears the burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d. 265 (1986). The burden then shifts to the non-moving party to produce evidence creating a genuine issue of material fact to be resolved at trial. Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993).

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To avoid summary judgment, the non-moving party must present more than "a mere scintilla of evidence." Id. There must be enough evidence to allow a reasonable jury to find for the non-moving party. Id. The non-movant "may not rest upon mere allegations or denials" of the pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d. 202 (1986), but must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc., v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). V. A. ARGUMENT

PLAINTIFF'S § 1983 AND § 1985 DUE PROCESS CLAIMS SHOULD BE DISMISSED AS DEVORE AND MARTIN ARE ENTITLED TO QUALIFIED IMMUNITY. 1. Standard and Burden of Proof.

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, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Medina v. Cram, 252 F.3d 1124, 1127 (10th Cir. 2001) (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Qualified immunity "not only shields a defendant from liability, but is also intended to protect the defendant from the burdens associated with trial." Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir. 1988). "These burdens include distraction of officials from their governmental responsibilities, the inhibition of discretionary decision making, the

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deterrence of able people from public service, and the disruptive effects of discovery on governmental operations." Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir. 1990). "Once the defendant pleads qualified immunity, the burden shifts to the plaintiff to demonstrate (1) the defendant's conduct violated the law, and (2) the relevant law was clearly established when the alleged violation occurred." Migneault v. Peck, 158 F.3d 1131, 1139 (10th Cir. 1998) (citing Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997)). "If the plaintiff fails to carry either part of [her] two-part burden, the defendant is entitled to qualified immunity." Migneault, 158 F.3d at 1140 (citing Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995)). 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). Although the standard does not require an exact or precise factual correlation between existing law and the circumstances of the case at bar, it does require that the law be reasonably well-developed to inform the state official that his conduct would violate the law. Hilliard v. City and County of Denver, 930 F.2d 1516, 1518 (10th Cir. 1991); see also Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 599 (2004). 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). In the face of a summary judgment motion, a plaintiff must produce evidence that would allow a trier of fact to find that no reasonable person in the defendant's position would have

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thought the facts justified the defendant's acts. Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993). For the reasons set forth below, Plaintiff cannot meet either part of her two-part burden and, as such, Martin and DeVore are entitled to qualified immunity. 2. Plaintiff Cannot Establish a § 1983 Constitutional Violation.

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, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985)). A property interest under the United States Constitution exists only when an employee has a legitimate claim of entitlement to continued employment under state law. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In Colorado, an

employment relationship is presumed to be at-will. Clark v. Town of Kersey, 973 F.Supp. 1217, 1220 (D. Colo. 1997). While employees with employment contracts for definite terms are entitled to continued employment, at-will employees are not and accordingly have no property interest in their employment. Custodio v. United States, 866 F.Supp. 479, 482 (D. Colo.

1994)(citing Sullivan v. Stark, 808 F.2d 737, 740 (10th Cir. 1987)). This District and Circuit have consistently held that at-will employees are not entitled to continued employment and therefore do not have a federally protected property interest. See, e.g. Parker v. Board of County Commissioners, 78 F.Supp.2d 1168, 1171 (D. Colo. 2000); Jackson v. Johns, 714 F.Supp. 1126, 1130 (D. Colo. 1989); Walker v. City of Fort Morgan, No. 97-1272, 1998 U.S. App. LEXIS 7460, at * 4 (10th Cir. April 13, 1998).

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Here, it is undisputed that Plaintiff was an at-will employee and that at no time did she have an employment contract with the County. [Section III of this brief at ¶¶ 2 ­ 3].

Consequently, as an at-will employee, Plaintiff did not have a constitutionally protected right to continued employment and thus no right to any post-termination appeal. Apparently recognizing this fatal flaw to her due process claim, Plaintiff alleges that the County Personnel Policies created an implied contract and a legitimate claim of entitlement to certain procedures therein, namely the appeal procedures following notice of separation of employment. When state law recognizes that an employee handbook may form the basis of a breach of contract claim, the personnel policies and regulations in question determine whether the subject employee possessed a legitimate claim of entitlement under the due process clause. Adams County School Dist. No. 50 v. Dickey, 791 P.2d 688, 695 (Colo. 1990). Those courts which have held that a property interest exists have relied upon express language within an employee handbook that states that an employee could only be terminated for cause which created a property right, and in turn, a requirement for some form of a post-termination hearing. See, Adams County School Dist. No. 50, 791 P.2d at 695 (referring to Thomas v. Ward, 529 F.2d 916, 919 (4th Cir. 1975)(a school board's employee handbook granted a property interest to nonprobationary employees by fostering an understanding that they would be subject to dismissal only for cause); Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1262-64 (7th Cir. 1985)(a county personnel manual, which provided that employees could only be dismissed for cause, created a property interest in continued employment); Bailey v. Kirk, 777 F.2d 567, 574-75 (10th Cir. 1985)(the city's personnel manual, which provided that classified employees could only be dismissed for cause, gave a discharged police chief a property interest in continued

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employment); Nicholson v. Gant, 816 F.2d 591, 597 (11th Cir. 1987)(a handbook of employee personnel policies adopted by a county commission gave "regular employees" a property interest in continued employment by specifying they were entitled to adequate notice prior to termination, and that they could only be terminated "for cause"). As shown below, Plaintiff cannot cite to any similar language within the subject Personnel Policies which even arguably granted her a right to continued employment. a. Personnel Policies did not create a property right which entitled Plaintiff to an appeal.

Contrary to the cases noted above, there is no language within the Personnel Policies which gave Plaintiff a legitimate claim of entitlement to continued employment, nor is there any language within the Personnel Policies which guaranteed Plaintiff a right to an appeal upon being laid off. Upon being hired, Plaintiff has no recollection of being told that her employment could only be terminated for disciplinary reasons, nor was she told that a particular procedure would have to be followed if she was terminated. [Section III of this brief at ¶¶ 6 ­ 7]. Plaintiff cannot recall any language that she relied upon in the Personnel Policies that informed her that if she continued to do a good job, she could keep her job. [Section III of this brief at ¶ 10]. Most significantly, Plaintiff cannot recall any language within the Personnel Policies indicating that she could only be terminated for cause, nor did she recall ever hear that during her entire term of employment with the County. [Section III of this brief at ¶¶ 11 and 15]. Accordingly, it is undisputed that the Personnel Policies did not contain any language indicating that Plaintiff could only be terminated for cause which could be construed as creating a property right in her continued employment

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In addition, it is undisputed that the Personnel Policies did not provide Plaintiff with a right to an appeal. Within the Personnel Policies, if an employee is dismissed as a form of disciplinary action, there must be cause for the termination. [Section III of this brief at ¶ 20]. If an employee is dismissed for cause resulting from disciplinary action, the Personnel Policies set forth appeal procedures which are to be adhered to if the employee receives written notice of dismissal. [Section III of this brief at ¶ 21]. The Personnel Policies specifically define

"Dismissal" as "an involuntary separation for cause from County employment." [Section III of this brief at ¶ 22]. Plaintiff was not dismissed for cause, but was laid off due to budgetary constraints. [Section III of this brief at ¶¶ 24 ­ 25]. While Plaintiff did receive notice that her position had been eliminated, such did not constitute written notice of "dismissal" as defined by the Personnel Policies as she was not separated for cause, but was in fact laid off. [Section III of this brief at ¶ 26]. Since she was laid off, cause need not have existed and the appeal procedures within the Personnel Policies were inapplicable. [Section III of this brief at ¶ 27]. At no time did anyone from the County tell Plaintiff that if she was laid off as a result of a reduction in force, she could appeal that decision. [Section III of this brief at ¶ 30]. Even Plaintiff acknowledges that maybe the elimination of her position was due to budgetary reasons. [Section III of this brief at ¶ 37]. And most significantly, not only does Plaintiff agree that the grievance and appeal procedures probably cannot be used on any other grounds other than following disciplinary actions, but she concedes that the grievance and appeal procedures do not apply to a situation where an employee has been laid off. [Section III of this brief at ¶¶ 28 ­ 29]. Based upon this concession, as well as the concession that the Personnel Policies do not contain any language that Plaintiff could only be terminated for cause, it is clear that the Personnel

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Policies neither created a property right in continued employment nor an entitlement to an appeal upon being laid off. Plaintiff's § 1983 due process claim should therefore be dismissed as a matter of law. b. The record is devoid of any evidence that Plaintiff was actually terminated for cause thus entitling her to an appeal.

Conceding that she was not entitled to an appeal upon being laid off, Plaintiff's strategy has abruptly shifted and she now claims that she was actually terminated for cause since she could not adequately perform the job, and that the County merely characterized it as a layoff in order to avoid the cost and hassle of an appeal. While Defendants appreciate the creativity of this novel allegation which only emerged in the current Complaint, the record is nonetheless devoid of any evidence in support thereof. It should again be noted that upon being hired, Plaintiff has no recollection of being told that her employment could only be terminated for disciplinary reasons. [Section III of this brief at ¶ 6]. Plaintiff also cannot recall any language within the Personnel Policies which informed her that she could only be terminated for cause, nor does she recall ever hearing that from any employee during her entire term of employment with the County. [Section III of this brief at ¶¶ 11 and 15]. With that background in mind, the record is devoid of any evidence that Plaintiff was actually terminated for cause because she was not performing adequately and that the County characterized it as a layoff in order to avoid an appeal. Plaintiff's only discipline during her entire term of employment with the County was on two occasions in 1993 ­ one being an oral reprimand for a complaint that she was not polite to a customer and another oral reprimand for not giving a child a library card. [Section III of this brief at ¶ 16]. This discipline occurred some nine years prior to her layoff. As late as June of 2002, only three months prior to being

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informed of the layoff, Plaintiff received a favorable performance evaluation. [Section III of this brief at ¶ 17]. During her entire fourteen year employment with the County, no County

employee ever came to Plaintiff with concerns or criticisms about her work, to include Martin, Moore, and DeVore. [Section III of this brief at ¶ 18]. As of September 1, 2002, Plaintiff had received a merit-based raise every year. [Section III of this brief at ¶ 19]. Finally, during her meeting with Martin on September 10, 2002, Martin told Plaintiff that her being laid off was no reflection on her job performance and that her position was being eliminated due to budgetary constraints. [Section III of this brief at ¶ 24]. These undisputed facts establish not only that Plaintiff was adequately performing her job as Branch Librarian, but that Plaintiff's job performance was clearly not a factor in the decision to lay her off. More importantly, the record is devoid of any evidence supporting the conspiracy theory that the termination was characterized as a layoff simply to avoid the expense and hassle of an appeal. 3. Plaintiff Cannot Establish a § 1985 Constitutional Violation.

It should first be noted that Plaintiff has failed to identify which section of 42 U.S.C. § 1985 she brings her claim. According to 42 U.S.C. § 1985, entitled "Conspiracy to interfere with civil rights," civil liability can rest under three distinct sections: (1) Preventing officer from performing duties; (2) Obstructing justice; intimidating party, witness, or juror; and (3) Depriving persons of rights or privileges. Defendants presume that Plaintiff's Second Claim for Relief is premised upon 42 U.S.C. § 1985(3). To prove such a claim, in addition to proving the existence of a conspiracy, Plaintiff must show (1) that "'some racial, or perhaps otherwise class-based, invidiously discriminatory animus

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[lay] behind the conspirators' action ... and (2) that the conspiracy `aimed at interfering with rights' that are `protected against private, as well as official, encroachment ...'" Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268 (1993)(citing Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971); Carpenters v. Scott, 463 U.S. 825, 833, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983)). Plaintiff cannot establish the threshold element of a conspiracy. A civil conspiracy requires a meeting of the minds or agreement among the defendants and concerted action. Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 ­ 31 (10th Cir. 1990). The record is completely devoid of any evidence that Martin and Devore (along with Moore) had an agreement to terminate Plaintiff's employment for cause, characterize it as a layoff, and that they acted in concert to fulfill that agreement. In fact, Plaintiff it not aware of any facts to support the contention that Martin knew at the time of the creation of the new position of Branch Manager that it would result in the elimination of her position. [Section III of this brief at ¶ 23]. Even after receiving the letter from DeVore that she would not be afforded a hearing, Plaintiff did not have any reason to think that DeVore had it out for her. [Section III of this brief at ¶ 31]. Plaintiff's basis for a conspiracy is merely based upon the fact that since Martin, Moore, and DeVore all worked together, they had to be aware of the conspiracy to terminate her for cause and to characterize it as a layoff. [Section III of this brief at ¶ 32]. Plaintiff also believes that the three conspired against her because she was never told about the new position that was being created and she was not surprised about the person who was chosen to fill the new position. [Section III of this brief at ¶¶ 33 and 35]. However, Plaintiff is unaware of any meeting between Martin, Moore, and DeVore when the three agreed to the alleged conspiracy. [Section III of this

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brief at ¶ 34]. Such tenuous and conclusory allegations are insufficient to establish a meeting of the minds and concerted action on the part of DeVore and Martin in furtherance of the alleged conspiracy. Most damaging to Plaintiff's § 1985(3) claim is her inability to establish any racial or otherwise class-based discriminatory animus. While the original Complaint filed in this case mentioned Plaintiff's age as a factor in her layoff, Plaintiff is no longer claiming that she was terminated due to her age. [Section III of this brief at ¶ 36]. In fact, Plaintiff acknowledges that maybe the elimination of her position was due to budgetary reasons. [Section III of this brief at ¶ 37]. Given these undisputed facts, Plaintiff's § 1985(3) claim should be dismissed as a matter of law. 4. Plaintiff cannot make a showing that the law was clearly established.

Plaintiff also cannot satisfy the second part of the qualified immunity analysis as she cannot make a showing that the law was clearly established such that Martin or DeVore should have known that they were violating her due process rights under either § 1983 or § 1985. To the contrary, the clearly established law referenced above makes it clear not only that Martin and DeVore could not have known that they were violating Plaintiff's civil rights, but that at no time did Martin, DeVore, or any other employee of the County violate Plaintiff's constitutional rights as she did not have a procedural due process right to an appeal. B. PLAINTIFF'S § 1983 AND § 1985 CLAIMS AGAINST THE COUNTY AND BOARD SHOULD BE DISMISSED.

A public entity may not be held liable pursuant to 42 U.S.C. § 1983 when there has been no underlying constitutional violation by one of its employees. See, Williams v. City and County of Denver, 99 F.3d 1009, 1018 (10th Cir. 1996) (referring to Hinton v. City of Elwood, 997 F.2d

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774, 782-83 (10th Cir.1993)). "If a person has suffered no constitutional injury at the hands of the individual [employee], the fact that the departmental regulations might have authorized [the violation] is quite beside the point." Hinton, 997 F.2d at 882. As set forth above, Plaintiff cannot establish that Martin (or any other employee of the County or Board) violated her due process rights. Plaintiff's § 1983 and § 1985 claims against the County and Board should

therefore be dismissed as a matter of law. C. PLAINTIFF'S DISMISSED. STATE DUE PROCESS CLAIMS SHOULD BE

Plaintiff's Third Claim for Relief alleges that the Defendants violated her rights under the Colorado Constitution, specifically her rights under "Article II, Section 25." As there does not exist an implied right of action for an alleged violation of the Colorado Constitution, unlike 42 U.S.C. § 1983 which provides a right of action to address alleged violations of the United States Constitution, these claims should be dismissed. In Board of County Commissioners of Douglas County v. Sundheim, 926 P.2d 545 (Colo. 1996), the Colorado Supreme Court granted certiorari to determine if authority existed to recognize an implied damages action in cases where a party alleges that the government has violated his or her rights under the Colorado Constitution. The Court stated that "[w]hile it may be appropriate to recognize an implied state constitutional cause of action when there is no other adequate remedy, we agree with the approach taken by the court in Kelley that where other adequate remedies exist, no implied remedy is necessary." Sundheim, 926 P.2d at 553 (citing Kelley Property Development, Inc. v. Town of Lebanon, 627 A.2d 909 (Conn. 1993)). Under the facts of the case, the Sundheim court held that the proper method for challenging a zoning

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determination was pursuant to C.R.C.P. 106(a)(4), rather than under the Colorado Constitution. Id. This District has reached the same conclusion. In Vanderhurst v. Colorado Mt. College Dist., 16 F.Supp.2d 1297, 1304 (D. Colo. 1998), the court held that "[n]o statutory equivalent [to 42 U.S.C. § 1983] exists under Colorado state law to enforce the state constitution." The Vanderhurst court relied upon Sundheim and determined that "[the plaintiff] has adequate remedies available pursuant to § 1983 for violations of the United States Constitution and for breach of contract, including damages." Vanderhurst, 16 F.Supp.2d at 1304. In BrammlerHoelter v. Twin Peaks Charter Academy, 81 F.Supp.2d 1090 (D.Colo. 2000), the court dismissed a plaintiff's state constitutional claims pursuant to Fed.R.Civ.P. 12(b)(6) as it found that there were other adequate remedies available. Similarly, in the present case, Plaintiff has adequate remedies pursuant to § 1983 to pursue allegations that her federal civil rights were violated, claims which she has, in fact, alleged in this lawsuit. As there is no implied constitutional cause of action for her claims asserted under the Colorado Constitution, these claims should be dismissed as a matter of law. D. PLAINTIFF'S WILLFUL BREACH OF CONTRACT/EXPRESS COVENANT OF GOOD FAITH AND FAIR DEALING CLAIM SHOULD BE DISMISSED.

Plaintiff's Fourth Claim for Relief is for willful breach of contract/express covenant of good faith and fair dealing. While the claim itself appears to allege a breach of an express contract (and an express covenant of good faith and fair dealing), Plaintiff also alleges a breach of an implied contract created by the Personnel Policies. [Complaint at ¶¶ 28 ­ 29]. Under either theory, Plaintiff's breach of contract claim must fail.

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To adequately plead and eventually prove the claim of breach of contract, Plaintiff must establish the following elements: "(1) the existence of a contract ... ; (2) performance by the plaintiff or some justification for nonperformance ... ; (3) failure to perform the contract by the defendant ... ; and (4) resulting damages to the plaintiff ..." Western Distributing Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992)(citations omitted). It cannot be disputed that during the entirety of her employment with the County, Plaintiff was an at-will employee and that she at no time had an express contract of employment. [Section III of this brief at ¶¶ 2 ­ 3]. As a result, Plaintiff has not pled the existence of a contract between herself and the County which could have been breached, and thus cannot prove this essential element as a matter of law. Given these undisputed facts, Plaintiff's willful breach of contract claim should be dismissed. In addition, since the existence of a contract is a necessary predicate to a claim for breach of the implied duty of good faith and fair dealing, Plaintiff's claim that Defendants breached that covenant should be dismissed as well. Beal Corp. Liquidating Trust v. Valleylab, Inc., 927 F.Supp. 1350 (D. Colo. 1996); see also CJI-Civ 30:1B. Clearly recognizing the nonexistence of an express employment contract, Plaintiff claims that the language within the Personnel Policies created an implied contract. Despite the fact that Plaintiff was an at-will employee and at no time had a contract of employment, "[a]n employer may be held liable for the discharge of an otherwise at-will employee ... where an implied contract arises out of company policy or employment manuals, or where an employee relies on the policies and manuals to [her] detriment." Clark v. Town of Kersey, 973 F.Supp. 1217, 1220 (D. Colo. 1997)(citing Orback v. Hewlett-Packard Co., 909 F.Supp. 804, 808 (D.Colo. 1995)) (internal citations omitted), aff'd, 97 F.3d 429 (10th Cir. 1996)). "To succeed on an implied

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contract theory under Colorado law, a discharged employee must first show that in promulgating the manual or policy at issue, the employer intended to make 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.'" Orback, 909 F. Supp. at 808 (quoting Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1464 (10th Cir. 1994)). "An offer in the form of an employment manual must be communicated to the employee to be effective ... and must be `sufficiently definite to enable the court to determine whether the contract has been performed.'" Vasey, 29 F.3d at 1464 (quoting Stice v. Peterson, 355 P.2d 948, 952 (Colo. 1960))(internal citations omitted). The employee must first establish the employer's intent to be bound by the manual's procedures, and then must go on to show that her continued employment constituted acceptance of and consideration for those procedures. See, id. (citing Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987)). "While the existence of an implied contract is normally a factual inquiry for the jury ... the issue may be decided as a matter of law if (1) there is a valid disclaimer stating the policies are not intended to create a contract ... (2) the alleged promises are nothing more than `vague assurances' ... or (3) if the undisputed facts otherwise `indicate that the employer did not intend the manual to operate as a contractual offer to the employee.'" Vasey, 29 F.3d at 1464 ­ 65. Based upon the latter two exceptions, Plaintiff cannot establish that the Personnel Policies created an implied contract of employment which afforded her the right to an appeal. In her Complaint, it is alleged that the Personnel Policies made certain "promises" which were accepted by Plaintiff for which she gave consideration through her continuous work for the

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County since her date of hire. However, it should be first be noted that since Plaintiff began her employment in 1988, and the Personnel Policies were not promulgated until 1989, it is undisputed that there were no procedures within any personnel manual that Plaintiff relied upon as a condition of accepting her employment. [Section III of this brief at ¶¶ 1 and 4 ­ 5]. Once promulgated by the County, Defendants at no time manifested a willingness to enter into a bargain with Plaintiff and, in addition, Plaintiff cannot make a showing that her continued employment constituted acceptance of and consideration for any procedure within the Personnel Policies. Upon receiving the Personnel Policies, Plaintiff has no recollection of any County employee telling her that the County was required to follow the policies. [Section III of this brief at ¶ 8]. At that same time, no one from the County told Plaintiff that the Personnel Policies served as a form of contract between her and the County. [Section III of this brief at ¶ 9]. When Plaintiff received amended Personnel Policies, she was never told that the

amendments served as a contractual offer by the County. [Section III of this brief at ¶ 13]. In fact, at no time during the course of her employment did the County intend for the Personnel Policies to operate as a contractual offer to Plaintiff. [Section III of this brief at ¶ 14]. As for the allegation that Plaintiff relied upon the Personnel Policies to her detriment and gave consideration by way of her continuous work, Plaintiff admits that at no time did she decide against seeking alternative employment based upon her reliance upon specific provisions within the Personnel Policies, including the grievance and appeal procedures. [Section III of this brief at ¶ 12]. The undisputed facts clearly show that any alleged "promises" within the Personnel Policies were, at best, nothing more than vague assurances and, more importantly, that the relied

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upon provisions were inapplicable to Plaintiff's layoff. These facts are as follows: (1) within the Personnel Policies, if an employee is dismissed as a form of disciplinary action, there must exist cause for the termination [section III of this brief at ¶ 20]; (2) if an employee is dismissed for cause resulting from disciplinary action, the Personnel Policies set forth appeal procedures for termination which are to be adhered to by the County once the employee receives written notice of "dismissal" [section III of this brief at ¶ 21]; (3) "Dismissal" is defined as an involuntary separation for cause [section III of this brief at ¶ 22]; (4) on September 30, 2002, Plaintiff was not dismissed for cause as a result of any disciplinary action, but was instead laid off [section III of this brief at ¶ 25]; and (5) cause need not have existed for Plaintiff's layoff and the appeal procedures within the Personnel Policies were not applicable to her layoff [section III of this brief at ¶¶ 26 ­ 27]. Most notable is Plaintiff's concession 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, as well as her recognition that maybe she was laid off as a result of budgetary constraints. [Section III of this brief at ¶¶ 28 and 37]. Accordingly, even assuming that there existed an alleged "promise" to the adherence to the appeal procedures within the Personnel Policies, the procedures relied upon by Plaintiff within did not apply to her situation. The subject appeal procedure applies only to a termination for cause as a result of disciplinary action, not when an employee is laid off. Accordingly, Plaintiff's breach of an implied contract claim should be dismissed as a matter of law. E. PLAINTIFF'S PROMISORY ESTOPPEL CLAIM SHOULD BE DISMISSED.

To prove her promissory estoppel claim, Plaintiff must establish the following: (1) the promisor made a promise to the promisee; (2) the promisor should reasonably have expected that

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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) (citing Berg v. State Board of Agriculture, 919 P.2d 254 (Colo.1996)). To establish a promissory estoppel claim in reliance upon the language within 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 that injustice can be avoided only by enforcement of the termination procedures." Continental Airlines, supra, 731 P.2d at 712. As emphasized above, there is no reason that the County should have reasonably expected Plaintiff to consider the Personnel Policies to be a commitment from them to follow certain termination procedures, especially in the instance of a layoff when the Personnel Policies do not require any type of procedure to be followed. While Plaintiff claims that the alleged promises within the Personnel Policies were reasonably and justifiably relied upon when she accepted her employment [Complaint at ¶¶ 36 ­ 37], the Personnel Policies were not even in effect at that time. [Section III of this brief at ¶¶ 1, 4 ­ 5]. And while Plaintiff further claims that the alleged promises were relied upon to her detriment as a condition of her continued employment, it is undisputed that at no time during her employment did Plaintiff decide against seeking alternative employment because of her reliance upon specific provisions within the Personnel Policies, including the grievance and appeal procedures. [Section III of this brief at ¶ 12]. Again, since Plaintiff concedes that the appeal procedures do not apply when an employee

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is laid off [section III of this brief at ¶ 28], it cannot be said that she relied upon and continued her employment with the County with the understanding that she would be afforded an appeal regardless of the reason given for her separation of employment. Accordingly, Plaintiff's claim of promissory estoppel should also be dismissed as a matter of law. VI. CONCLUSION

For the reasons stated herein, the entirety of Plaintiff's claims for relief should be dismissed pursuant to Fed.R.Civ.P. 56.

Respectfully submitted,

s/ Eric M. Ziporin Eric M. Ziporin, Esq. SENTER GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: 303-320-0509 Facsimile: 303-320-0210 [email protected] Attorney for Defendants

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CERTIFICATE OF MAILING I HEREBY CERTIFY that on this 1st day of May, 2006, I electronically filed a true and correct copy of the above and foregoing DEFENDANTS' MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Nathan Davidovich, Esq. [email protected] Ronald H. Nemirow, Esq. [email protected]

s/ McKenna E. Reich

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