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Cvancara v. Reams

United States District Court, D. Colorado

February 19, 2016

SUSAN CVANCARA, Plaintiff,
v.
STEVE REAMS, Defendant.

OPINION AND ORDER

RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE.

On November 18, 2014, plaintiff Susan Cvancara (“plaintiff”) filed a Complaint against John Cooke in his official capacity as Sheriff of Weld County, Colorado. (ECF No. 1).[1] Therein, plaintiff raised two claims for relief, one of which has now been voluntarily dismissed. (ECF No. 15.) The sole remaining claim is brought pursuant to 42 U.S.C. § 1983 for defendant’s alleged retaliation against plaintiff’s exercise of her First Amendment right to free speech. (ECF No. 1 at ¶¶ 42-52.)

Pending before the Court is defendant’s motion for summary judgment as to plaintiff’s First Amendment claim (“the motion for summary judgment”) (ECF No. 29) and statement of undisputed material facts (ECF No. 30). Plaintiff has filed a response in opposition to the motion for summary judgment (ECF No. 31), a response in opposition to defendant’s statement of undisputed material facts (ECF No. 31-12), and an affidavit (“affidavit”) (ECF No. 31-1). Defendant then filed a reply (ECF No. 32) and a reply statement of undisputed material facts (“the RSUMF”) (ECF No. 33). Defendant has also filed a motion to strike plaintiff’s affidavit (“the motion to strike”) (ECF No. 37), to which plaintiff has responded (ECF No. 42) and defendant has filed a reply (ECF No. 43).

For the reasons discussed herein, the motion for summary judgment is GRANTED, and the motion to strike is GRANTED IN PART and DENIED IN PART.

I. Motion to Strike

Before turning to the factual background, the Court will first address defendant’s argument that plaintiff’s affidavit should not be considered in discussing the undisputed material facts of this case. Defendant argues that plaintiff’s affidavit should be struck from the record because it contradicts or arguably contradicts plaintiff’s deposition testimony. (See generally ECF No. 37.) Specifically, defendant takes aim at: paragraphs 7, 8, and 23 of the affidavit because they are based on “awareness, belief, speculation, or understanding”; paragraphs 15, 17, 19, and 20 because they attempt “to recall more clearly” certain meetings; and paragraphs 19 and 23 because “they constitute ultimate facts, arguments, or inferences.” (Id. at 7.)

The Court agrees with defendant in part. With respect to paragraphs 7 and 8, defendant’s argument is misplaced. Defendant challenges those paragraphs because plaintiff uses the phrase “I was not aware” or “I am not aware.” (Id.; see ECF No. 37-2 at ¶¶ 7, 8.) To the extent that defendant is concerned that these statements reflect impermissible beliefs or speculation, the Court does not, and will not, construe them as such. Rather, the Court merely construes them as plaintiff asserting that, based on her personal knowledge as a former employee of the Sheriff’s Office, the facts alleged in those paragraphs did not exist. See Fed.R.Civ.P. 56(c)(4) (providing that affidavits must be made on personal knowledge). Paragraph 23 is of a different order however. Therein, plaintiff asserts that: “To [her] knowledge, no one in the Sheriff’s Office ever investigated any of my concerns about Ms. Calvin prior to terminating my employment.” (ECF No. 37-2 at ¶ 23.) Plaintiff provides no basis, though, for finding that she has or had personal knowledge of whether the Sheriff’s Office investigated Ms. Calvin. Thus, paragraph 23 is stricken from plaintiff’s affidavit, and will not be considered.

Turning to paragraph 15, defendant asserts that this statement attempts to more clearly recall plaintiff’s meeting with two other individuals. (ECF No. 37 at 7.) Paragraph 15, however, does not mention any meeting. (See ECF No. 37-2 at ¶ 15: “Prior to the incident which is the subject of this lawsuit, I was never called upon by the Weld County Sheriff’s Office to report or investigate possible government corruption or malfeasance as part of my job.”) Thus, defendant’s argument is misplaced. As for paragraph 17, defendant’s argument is again misplaced, but for a different reason. Defendant asserts that this paragraph is improper because it attempts to recall more clearly a different meeting. Defendant is correct that paragraph 17 does address that meeting, however, other than providing a long list of plaintiff’s deposition testimony, defendant fails to explain how the affidavit contradicts or arguably contradicts the same. Merely because plaintiff’s deposition testimony may reflect that she spoke to others about more than just the topics mentioned in paragraph 17 does not make that paragraph contradictory, especially given that the paragraph does not suggest that the topics mentioned therein were the sole topics discussed at the meetings.

Paragraphs 19 and 20, though, are entirely improper. In those paragraphs, plaintiff attempts to assert the reasons for her suspicion of a co-worker (paragraph 19) and her belief that certain items found in a car belonged to the same co-worker (paragraph 20). Plaintiff argues in her response that she should be entitled to testify, with respect to paragraph 19, about whom the items belonged, when and where she found them, and who had access to the car. (ECF No. 42 at 4.) However, paragraph 19 hopes to do much more than that, as the reason for mentioning these subjects is to provide a basis for plaintiff’s “reason[able] suspicion” that a co-worker was engaged in impropriety; something that is based solely on her own speculation. The same is true of paragraph 20; another statement that is based on plaintiff’s inferences from known facts. It is not plaintiff’s role to make such inferences in the affidavit. See Fed.R.Civ.P. 56(c)(4). As a result, paragraphs 19 and 20 are stricken from plaintiff’s affidavit, and will not be considered.

One final note on this matter is that it is largely irrelevant to the discussion of the factual background infra. This is because in her response statement of undisputed material facts, plaintiff cites to her affidavit-which is Exhibit 1 to the response statement-only once. (See ECF No. 31-12 at ¶ 53.) Moreover, as discussed in footnote 8 infra, this solitary citation violates the Court’s Civil Practice Standards; specifically, Civil Practice Standard IV(B)(2)(b)(ii). Thus, even if the Court had failed to grant the motion to strike in any respect, plaintiff has failed to properly present any alleged facts from her affidavit.

II. Factual Background

The following uncontested facts are taken from the RSUMF (ECF No. 33), which, consistent with this Court’s Civil Practice Standards, contains defendant’s initial statement of uncontested material facts, plaintiff’s response statement of uncontested material facts, and plaintiff’s reply statement.[2]

In August 2005, plaintiff was hired by the Weld County Sheriff’s Office (“the WCSO”), where she initially worked as the Director of the Victim Services Unit (“the VSU”). (ECF No. 33 at ¶¶ 1, 2). In July 2006, plaintiff received a copy of the Weld County Code personnel policies. (Id. at ¶ 3.) In January 2010, plaintiff was suspended, in part, for providing cigarettes to a minor and indicating disagreement with a hospital policy related to cervical examinations of certain victims. (Id. at ¶¶ 11, 12, 15.)

Sometime in January 2011, [3] plaintiff received a “Deficient Performance Notice” (“the DPN”). (Id. at ¶ 24.) The DPN stated that, “over the past four years, there was a reoccurring issue with [p]laintiff spreading rumors and disparaging comments about the WCSO, other employees, volunteers, and others.” (Id. at ¶ 25.) The DPN further stated that four subordinates had described plaintiff’s behavior as “rude and offensive, ” while three of plaintiff’s subordinates had quit because they had been unable to work with her. (Id. at ¶¶ 26, 27.)

In February 2011, an inquiry was conducted into a further complaint against plaintiff. (Id. at ¶ 30.) The written report of the inquiry stated that plaintiff had previously agreed to correct her behavior, but failed to do so. (Id. at ¶ 32; ECF No. 30-8 at 10.)[4] The report ultimately recommended terminating plaintiff’s employment for various policy violations, including Truthfulness and Teamwork. (ECF No. 33 at ¶ 32; ECF No. 30-8 at 10.)

On March 3, 2011, Deputy Chief Reams of the WCSO issued a memorandum regarding “Personnel Recommendation” for plaintiff, which recommended demoting plaintiff to the position of “Specialist” within the VSU. (ECF No. 33 at ¶ 33; ECF No. 30-9 at 3.)[5] The next day, Bureau Chief Randy Winsett issued a memorandum agreeing with the recommendation to demote plaintiff. (ECF No. 33 at ¶ 35; ECF No. 30-9 at 4.) On March 22, 2011, Commander Ken Poncelow issued a memorandum demoting plaintiff to the position of “Victim’s Advocate Specialist.” (ECF No. 33 at ¶ 36; ECF No. 30-15 at 3.)[6] The memorandum stated that, since October 28, 2010, plaintiff had violated various policies of the WCSO, and warned plaintiff that future similar incidents would “result in more severe disciplinary action, up to and including termination.” (ECF No. 33 at ¶ 41; ECF No. 30-15 at 3.) Plaintiff signed the memorandum on March 21, 2011. (ECF No. 30-15 at 4.)

In January 2012, plaintiff received a written reprimand from Commander Ed Haffner.[7] (ECF No. 33 at ¶ 42; ECF No. 30-6 at 3.) Therein, plaintiff was advised of various policy violations related to inappropriate interactions with co-workers. (ECF No. 33 at ¶¶ 43-44; ECF No. 30-6 at 2-3.) The written reprimand warned plaintiff that any further action of a type discussed ...


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