United States District Court, D. Colorado
MITCHEL LINCOLN, RODNEY GEHRETT, ROBERT KING, CHERYL PECK, and ROBERT STONE, Plaintiffs,
TERRY MAKETA, in his individual capacity and in his official capacity as Sheriff of El Paso County, PAULA PRESLEY, in her individual capacity and in her official capacity as Undersheriff of El Paso County, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO, BILL ELDER, in his official capacity as Sheriff, and JOE BREISTER, in his official capacity as Undersheriff, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS
CHRISTINE M. ARGUELLO United States District Judge
This matter is before the Court on the following motions:
1. “Motion to Dismiss from Defendant Terry Maketa” (Doc. # 28, filed April 30, 2015);
2. “Defendant Presley’s Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)” (Doc. # 32, filed May 4, 2015);
3. “County Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6)” filed by Defendants The Board of County Commissioners of the County of El Paso (“the BOCC”), Bill Elder, and Joe Breister (collectively “County Defendants”) (Doc.# 33, filed May 4, 2015); and
4. “County Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6)” (Doc. # 85, filed November 30, 2015).
Plaintiffs filed their Second Amended Complaint and Jury Demand on September 21, 2015, alleging claims pursuant to 42 U.S.C. §§ 1983 and 1988 and a claim pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-17. See (Doc. # 64.)Plaintiffs’ claims arise from their employment with the El Paso County Sheriff’s Office and are asserted against former Sheriff Terry Maketa, former Undersheriff Paula Presley, current Sheriff Bill Elder, current Undersheriff Joe Breister, and the Board of County Commissioners of the County of El Paso. See (Id.)
Plaintiffs King, Lincoln, and Gherett allege that, on May 12, 2014, they went to Defendant Maketa’s office and hand delivered an Equal Employment Opportunity Commission (“EEOC”) complaint charging Defendant Maketa and the County with sexual discrimination in the workplace based on sexual favoritism. (Id. at ¶ 12.) The EEOC charge was handed to Defendant Presley. (Id.) The EEOC charge stated that Defendant Maketa granted favorable treatment to female subordinates with whom he had intimate sexual relations and discriminated against subordinates who refused to engage in intimate sexual relations with him. (Id.) Also on May 12, 2014, Plaintiffs King, Lincoln, and Gherett submitted a written complaint to the Board of County Commissioners requesting an investigation of Defendants Maketa and Presley for hostile work environment, threats, a sexually discriminatory workplace, improper procurement and budget practices, and retaliation for political views and civil rights violations. (Id. at ¶ 13.) Plaintiffs Lincoln, King, and Gehrett allege that within three hours of delivering the EEOC complaint and BOCC request for investigation to Defendant Maketa’s office, they were placed on administrative leave. (Id. at ¶ 16.) Plaintiffs Lincoln and King also allege Defendants Maketa and Presley filed internal affairs complaints against them in July and September 2014. (Id. at ¶¶ 21-22.)
Plaintiff Stone alleges Defendant Maketa looked at Elder’s campaign website on a regular basis to see the names of people listed as supporters of Elder, saw Plaintiff Stone’s name on that list, and retaliated against Plaintiff Stone because he supported Elder. (Id. at ¶¶ 42, 92, 94.)
Plaintiff Peck alleges Defendant Maketa asked her to lie to the media, and, when she spoke truthfully instead, she was removed from her position as Lieutenant of Internal Affairs and moved to Lieutenant of Patrol on the midnight shift. (Id. at ¶¶ 62- 63.)
Plaintiffs assert the following claims: (1) a section 1983 claim by Plaintiffs Lincoln, King and Gehrett alleging First Amendment retaliation against all defendants related to the plaintiffs’ filing of the EEOC charge; (2) a section 1983 claim by Plaintiffs Lincoln, King, and Gehrett alleging First Amendment retaliation against all Defendants related to the Plaintiffs’ submission of a request for an investigation by the BOCC; (3) a section 1983 claim by Plaintiff Peck alleging First Amendment retaliation against Defendants Maketa, the BOCC, and Elder for Plaintiff Peck’s speaking to the media; (4) a section 1983 claim by Plaintiff Stone alleging First Amendment retaliation against Defendants Maketa, the BOCC, and Elder for Plaintiff Stone’s political affiliation; (5) an outrageous conduct claim asserted by all plaintiffs against Defendants Maketa and Presley; and (6) a Title VII retaliation claim by Plaintiffs Lincoln, King, and Gehrett against Defendant Elder for the plaintiffs’ filing a claim to the EEOC. See (Id.)
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6) (2007). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiffs have pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation is a two-step analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations that are legal conclusion, bare assertions, or merely conclusory. Id. at 679- 81. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
The court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does the complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. (citation omitted).
1) Government or Municipal Liability
The County Defendants argue that Plaintiffs have failed to state any plausible claim for relief against Defendant BOCC. (Doc # 33 at 6-13.)
In Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), the Supreme Court enunciated the rule for imposing liability on a governmental entity:
[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is 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 that the government as an entity is responsible under § 1983.
Monell, 436 U.S. at 694. “The ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). At a minimum, a party asserting a Monell claim must plead sufficient facts to identify the unconstitutional custom or policy that was promulgated and the means by which that custom or policy caused the constitutional violation. See, e.g., Hollingsworth v. Hill, 110 F.3d 733, 742 (10th Cir. 1997).
Here, Plaintiffs’ allegations of an unconstitutional custom or policy maintained by the BOCC or the El Paso County Sheriff’s Office are entirely conclusory. Plaintiffs offer only the “formulaic recitation” of a Monell claim, alleging that “El Paso County is liable under § 1983 because the County itself is the moving force behind the Constitutional torts alleged in this complaint and El Paso County’s policy or custom played a part in the violation law [sic] here alleged” (Doc. # 64 at 3) and that “[t]he County is liable because under Monell the actions taken by Maketa and Presley were a policy or custom of the county because they are actions taken by their final policymakers, whether or not those actions conform to the county’s own pre-existing rules” (Id. at ¶¶ 72, 82, 89, 95). Plaintiffs never identify any particular custom or policy under which Defendants Maketa and Presley were acting, nor do they specify how any custom or policy caused Defendants Maketa and Presley to violate Plaintiffs’ constitutional rights. As Iqbal makes clear, such conclusory allegations are insufficient to state a claim.
Plaintiff’s section 1983 claims against Defendant BOCC are dismissed.
2) Official Capacity Claims Against Individual Defendants
All of the defendants move to dismiss the official-capacity claims against them. (Doc. # 28 at 3; Doc. # 32 at 4; Doc. # 33, n.6.)
Official capacity claims are considered to be claims for municipal liability and are thus one and the same as suing the county. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (an official capacity “suit is, in all respects other than name, to be treated as a suit against the entity”); Myers v. Okla. Cnty. Bd. of Cnty. Comm’rs, 151 F.3d 1313, 1316 n.2 (10th Cir. 1998). “There is no longer a need to bring official-capacity actions against local government officials [because] local government units can be sued directly.” Graham, 473 U.S. at 167, n.14.
Thus, the official capacity claims against the individual defendants are dismissed. Moreover, it is clear from the Second Amended Complaint that Plaintiffs assert claims against Defendants Elder and Breister in their official capacities only. See (Doc. #77 at 1, 4.) Thus, Plaintiffs’ section 1983 claims against Defendants Elder and Breister are also dismissed in their entirety.
3) First and Second Claims for Retaliation - Plaintiffs Lincoln, King, and Gehrett
In the Second Amended Complaint, Plaintiffs Lincoln, King, and Gehrett assert that they were retaliated against by Defendants Maketa and Presley because they filed an EEOC charge alleging that the El Paso County Sheriff’s Office and Defendant Maketa fostered “sexual favoritism which has created a hostile work environment.” (Doc. # 28-1 at 1.) Plaintiffs Lincoln, King, and Gehrett also allege they were retaliated against by Defendants Maketa and Presley because they submitted a BOCC request for investigation alleging a pattern of “troubling practices at the Sheriff’s Office.” Defendants Maketa and Presley argue that these retaliation claims should be dismissed because the issues presented in the EEOC charge and the BOCC request for investigation are not matters of public concern.
Although Plaintiffs have asserted separate retaliation claims regarding the EEOC charge and the BOCC request for investigation, the Court disagrees that these are independent retaliation claims. Both the EEOC charge and the BOCC request for investigation were delivered simultaneously, and Plaintiffs assert that the alleged retaliatory acts were in response to both. Thus, the two are inextricably intertwined.
Therefore, the Court consolidates the First and Second Claims into one retaliation claim and will construe the motions to dismiss accordingly.
a) Legal Standard
To make of a prima facie case of retaliation in violation of the First Amendment, a plaintiff must establish:
(1) he was “engaged in constitutionally protected activity, ”
(2) that the defendant’s actions caused him to suffer an “injury that would chill a person of ordinary firmness from continuing to engage in that [protected] activity, ” and
(3) that the defendant’s actions “were substantially motivated as a response to his constitutionally protected conduct.”
Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1165 (10th Cir. 2009) (citing Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000)). “The First Amendment prohibits the government from punishing a person for exercising the right to free speech.” Deutsch v. Jordan, 618 F.3d 1093, 1097 (10th Cir. 2010). When the government is a person’s employer, however, the right to free speech can be limited in ways that would otherwise be unconstitutional. Deutsch, 618 F.3d at 1097. “Speech, for example, can be insubordinate, disruptive, or demoralizing; and government employers are not required to let such misconduct pass.” Merrifield v. Bd. of Cnty. Comm’rs, 654 F.3d 1073, 1079(10th Cir. 2011). “ ‘Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.’ ” Merrifield, 654 F.3d at 1079 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).
Courts employ a five-step approach derived from Garcetti and Pickering v. Board of Education, 391 U.S. 563 (1968), to balance the public employee’s right to speak as a citizen on matters of public concern against the government employer’s interest in ensuring the efficient provision of public services. Courts must consider:
(1) whether the speech was made pursuant to an employee’s official duties; (2) whether the speech was on a matter of public concern; (3) whether the government’s interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff’s free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) ...