Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00687-PSF-BNB

Document 101

Filed 05/30/2006

Page 1 of 9

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' OPPOSITION TO PLAINTIFF' MOTION FOR PARTIAL S 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 Opposition to Plaintiff' Motion for Partial s Summary Judgment as follows: I. INTRODUCTION

On May 1, 2006, Defendants filed their Motion for Summary Judgment and Memorandum Brief in Support of Motion for Summary Judgment (hereinafter "Defendants' Brief") (hereinafter collectively referred to as "Defendants' Motion"). Therein, Defendants seek

Case 1:04-cv-00687-PSF-BNB

Document 101

Filed 05/30/2006

Page 2 of 9

the dismissal of the entirety of Plaintiff' claims for relief, to include the dismissal of Plaintiff' s s First Claim for Relief (pursuant to 42 U.S.C. § 1983) and her Fourth Claim for Relief (willful breach of contract/express covenant of good faith and fair dealing) as a matter of law.1 In response to Plaintiff' Motion for Partial Summary Judgment with Incorporated Legal Authority s (hereinafter "Plaintiff' Motion"), Defendants primarily adopt and incorporate by reference those s arguments made within Defendants' Motion in response to the claim that summary judgment should be entered in favor of Plaintiff. For the reasons stated herein, as well as in Defendants' Motion, Plaintiff' Motion under Fed.R.Civ.P. 56 should be denied. s II. RESPONSE TO STATEMENT OF UNDISPUTED FACTS

Within both the "INTRODUCTION" and "STATEMENT OF UNDISPUTED FACTS" section of Plaintiff' Motion, Plaintiff sets out "facts" from the record which appear to be s claimed to be both material and undisputed. With regard to those facts listed within the

"STATEMENT OF UNDISPUTED FACTS," Defendants admit the following to be both material and undisputed: 1, 2, 3, 4, 5, 6, 7, 8, and 11. However, Defendants challenge the following "facts" as either not being material, undisputed, or both: 1. Within her "INTRODUCTION," Plaintiff claims that her job description was

"reclassified" and that the new position did not materially differ from the old position. [Plaintiff' Motion at p. 2]. Since listed in this section of her brief, Plaintiff apparently concedes s that these "facts" remain in dispute. Initially, other than Plaintiff' own theory of the case, the s record is devoid of any evidence that the County "reclassified" Plaintiff' position. Instead, it is s
1

On May 23, 2006, Plaintiff filed her Response to Defendants' Brief in Support of Motion for Summary Judgment. Therein, Plaintiff confesses to the dismissal of her Second Claim for Relief (pursuant to 42 U.S.C. § 1985) and her Third Claim for Relief (alleged violation of Plaintiff' due process rights under Article II, Section 25, of the s Colorado Constitution).

2

Case 1:04-cv-00687-PSF-BNB

Document 101

Filed 05/30/2006

Page 3 of 9

undisputed that the County created an entirely new position of Branch Manager without any anticipation that it would eventually have an impact on Plaintiff' employment. [Deposition of s Peggy Martin appended hereto at p. 22, line 9 ­ p. 23, line 6]. As for the claim that the two positions were materially the same, such claim is contradictory to both Exhibit 2 attached to Plaintiff' Motion as well as Plaintiff' own deposition testimony. As is clear from Exhibit 2, s s significant differences existed between the positions of Branch Librarian and Branch Manager. During her deposition, Plaintiff agreed that in addition to requiring a Master' in Library s Science, the following significant differences existed between the two positions: (a) the new position only required "limited supervision" under the "general guidance of the Library Director" [deposition transcript of Mary Jo Laird appended hereto as Exhibit D at p. 213, line 19 ­ p. 214, line 2]; (b) the new position provided for evaluation of all employees (Plaintiff had only been responsible for some evaluations) [Exhibit D at p. 214, lines 3 ­ 21]; and (c) the new position required conducting the budget plan and assisting Defendant Peggy Martin (hereinafter "Martin") in evaluating the overall budget [Exhibit D at p. 218, lines 14 ­ 18]. 2. Within her "INTRODUCTION," Plaintiff claims that she was the victim of a

"reduction in force" of one person ­ that being herself. [Plaintiff' Motion at p. 2]. Again, since s not listed within her "STATEMENT OF UNDISPUTED FACTS," Plaintiff apparently recognizes the dispute surrounding this allegation. In fact, such statement conveniently ignores the facts from the record which establish that in addition to Plaintiff' layoff, there was a change s at the Gunnison Library from Assistant Librarian at a Grade 29 with full benefits to a substitute position at Grade 25 (less pay) with no benefits. In addition, a position at the Gunnison Library was reduced from 30 hrs./week to 25 hrs./week. [Defendants' Answers to Plaintiff' First Set of s

3

Case 1:04-cv-00687-PSF-BNB

Document 101

Filed 05/30/2006

Page 4 of 9

Interrogatories, Requests for Admissions, and Requests for Production of Documents to Defendants appended hereto as Exhibit E at p. 4 ­ 5 (answer to Interrogatory No. 6)]. 3. Plaintiff' "undisputed" fact number 9 claims that an employee could not be s

dismissed as a form of disciplinary action, without cause. While Defendants agree that an employee could not be dismissed unless for cause, such is not material to the Court' analysis as s the undisputed facts establish that Plaintiff was laid off and not dismissed from her employment as defined by the Personnel Policies. 4. Plaintiff' "undisputed" fact number 10 claims that an employee who receives a s

written notice of dismissal may request a formal hearing via the appeal procedure within the Personnel Policies. While Defendants agree that an employee who receives notice of "dismissal" (as specifically defined by the Personnel Policies as being "an involuntary separation for cause") may take advantage of the appeal procedures, such is not material to the Court' analysis as the s undisputed facts establish that Plaintiff was laid off and not dismissed from her employment. III. A. ARGUMENT

THE PERSONNEL POLICIES DID NOT CREATE AN IMPLIED CONTRACT.

Defendants hereby adopt and incorporate by references those arguments within Defendants' Brief which establish that Plaintiff was an at-will employee and that the Personnel Policies did not create an implied contract of employment. [Defendants' Motion at pp. 14 ­ 15; pp. 23 ­ 27]. The undisputed facts and legal argument within those sections make it clear that the County never manifested a willingness to enter into a bargain with Plaintiff and, in addition, that Plaintiff' continued employment constituted acceptance of and consideration for any s procedure within the Personnel Policies. Even assuming for the sake of argument that an implied

4

Case 1:04-cv-00687-PSF-BNB

Document 101

Filed 05/30/2006

Page 5 of 9

contract was created, there was no breach as the Personnel Policies do not contain any language indicating that an employee is entitled to an appeal upon being laid off. While Plaintiff goes to great lengths to argue that an implied contract existed, she fails to make any showing as to how that implied contract was breached, if in fact it existed in the first place. Plaintiff' Motion as to s her implied contract claim should therefore be dismissed as a matter of law. B. THE COUNTY DID NOT BREACH AN EXPRESS COVENANT OF GOOD FAITH AND FAIR DEALING.

Defendants hereby adopt and incorporate by reference those arguments within Defendants' Brief which establish that an implied contract did not exist and that Defendants at no time breached an express covenant of good faith and fair dealing. [Defendants' Brief at pp. 23 ­ 27]. The undisputed facts and legal argument from that section make it clear that there was never an express or implied contract of employment, and further that the subject appeal procedure applied only to a termination for cause as a result of disciplinary action, not when an employee was laid off. Again, even assuming for the sake of argument that an implied contract existed which inherently included a covenant of good faith and fair dealing, there was no breach as the Personnel Policies did not allow for an appeal following a layoff.2 Within Plaintiff' Motion, Plaintiff relies upon state law from Colorado and other s jurisdictions to show that an express covenant of good faith and fair dealing becomes a term of

2

Plaintiff claims that the Defendants never told her about the "reclassification" scheme, though they knew it would damage her. [Plaintiff' Motion at p. 11]. In addition to citing her own testimony to support this allegation, Plaintiff s wholly mischaracterizes the testimony of Debbie Moore. The cited testimony refers to the point in time when the new position of Branch Manager was offered to Carol Primus. Ms. Moore made it clear that she did not know that this would result in Plaintiff' termination. More importantly, Ms. Moore consistently testified during her s deposition that she had no idea that the creation and classification of the new position would result in Plaintiff being laid off. [Deposition of Deborah L. Moore appended hereto as Exhibit F at p. 26, line 1 ­ p. 27, line 6; p. 28, line 16 ­ p. 29, line 12]. Other than Plaintiff' own testimony, the record is devoid of any evidence of a s "reclassification" scheme which was implemented to get rid of Plaintiff.

5

Case 1:04-cv-00687-PSF-BNB

Document 101

Filed 05/30/2006

Page 6 of 9

an express employment agreement. [Plaintiffs' Motion at pp. 10 ­ 11]. However, none of these cases stand for the proposition that an implied covenant of good faith and fair dealing exists in an implied contract purported to have been created by a personnel manual. Plaintiff concedes that she never had an express, written contract of employment with the County, but instead alleges that the Personnel Policies created an implied contract. The Colorado appellate courts have consistently declined to recognize the existence of an implied covenant of good faith and fair dealing in the context of otherwise at-will employment contracts. Decker v. Browning-Ferris Indus., 931 P.2d 436, 442 (Colo. 1997); Farmer v. Central Bancorporation, Inc., 761 P.2d 220, 221-22 (Colo. App. 1988); Montoya v. Local Union III, Int'l Bhd. of Elec. Workers, 755 P.2d 1221, 1225 (Colo. App. 1988); Pittman v. Larson Distrib. Co., 724 P.2d 1379, 1385 (Colo. App. 1986). Plaintiff' reliance on the language within Decker is misplaced as that case dealt with a s covenant under the premise of an express contract of employment. For these reasons, as well as those set forth in Defendants' Motion, Plaintiff' Motion as to her breach of an express covenant s of good faith and fair dealing should therefore be dismissed as a matter of law. C. PLAINTIFF DID NOT HAVE A PROPERTY RIGHT IN CONTINUED EMPLOYMENT WHICH ENTITLED HER TO DUE PROCESS.

Defendants hereby adopt and incorporate by reference those arguments within Defendants' Brief which establish that Plaintiff did not have a protected property right in continued employment and thus no right to any post-deprivation appeal. [Defendants' Brief at pp. 14 ­ 18]. That section further establishes that the record is devoid of any evidence that Plaintiff was actually terminated for cause, and that Defendants merely characterized her separation as a layoff in order to avoid an appeal.

6

Case 1:04-cv-00687-PSF-BNB

Document 101

Filed 05/30/2006

Page 7 of 9

Within Plaintiff' Motion, Plaintiff cites to the testimony of Peggy Martin and John s DeVore in support of the claim that the real reason for her termination was an alleged inability to perform her job. [Plaintiff' Motion at pp. 14 ­ 15; p. 18]. The cited testimony, even taken in s the light most favorably to Plaintiff, cannot be read to infer that Plaintiff was terminated because she could not adequately perform her job, but instead merely establishes that the County was looking to create an independent and autonomous position at the library in response to the demands of the community. While Plaintiff further alleges that the Personnel Policies did not adequately provide procedures for determining when an employee can be laid off as the result of a reduction in force, none of the cases relied upon by Plaintiff stand for the proposition that a property right can be created based upon ambiguities within a personnel manual. Quite to the contrary, the relied upon cases, such as Adams County School Dist. No. 50 v. Dickey, 791 P.2d 688, 695 (Colo. 1990), found a property interest to exist based upon clear and express language within a personnel manual that states that an employee could only be terminated for cause. Such express language was relied upon to create a property right which in turn created a requirement for some form of a post-termination hearing. Plaintiff' reliance on allegedly inadequately defined terms s is of no assistance to her. Such alternative strategy is clearly invoked as the Personnel Policies do not contain any language informing Plaintiff that she could only be terminated for cause.3 Accordingly, Plaintiff' Motion as to her § 1983 due process claim should be denied. s

It is undisputed that Plaintiff cannot recall any language within the Personnel Policies indicating that she could only be terminated for cause, nor did she recall ever hearing that during her entire term of employment with the County. [Section III of Defendants' Brief at ¶¶ 11 and 15].

3

7

Case 1:04-cv-00687-PSF-BNB

Document 101

Filed 05/30/2006

Page 8 of 9

D.

DEVORE AND MARTIN ARE ENTITLED TO QUALIFIED IMMUNITY.

Defendants hereby adopt and incorporate by reference those arguments within Defendants' Brief which establish that DeVore and Martin are entitled to qualified immunity. [Defendants' Brief at pp. 12 ­ 21]. Accordingly, Plaintiff' Motion as to her § 1983 claim s should be denied. IV. CONCLUSION

For the reasons stated herein, as well as in Defendants' Motion, Plaintiff' request that s the Court grant summary judgment as to her First and Fourth claims for relief should be denied as a matter of law.

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

8

Case 1:04-cv-00687-PSF-BNB

Document 101

Filed 05/30/2006

Page 9 of 9

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 30th day of May, 2006, I electronically filed a true and correct copy of the above and foregoing DEFENDANTS' OPPOSITION TO PLAINTIFF' MOTION FOR PARTIAL SUMMARY JUDGMENT with the Clerk of S 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/ Barbara A. Ortell

9
00225257.DOC