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Vercos v. Board of County Commissioners for County of El Paso

United States District Court, D. Colorado

April 25, 2017




         In this wrongful termination case, Plaintiff Anastasia Vercos alleges she was terminated from employment with El Paso County, Colorado in retaliation for reporting misuse of federal funds. She brings claims against Defendants, the Board of County Commissioners of El Paso County, Jim Reid, R.C. Smith, and Jerry Cordova (together, "Defendants"), including a claim for violation of her First Amendment rights, pursuant to 42 U.S.C. § 1983, and claims under Colorado law for wrongful termination in violation of public policy and for intentional interference with contractual rights. (See ECF No. 23.) Now before the Court is Defendants' Motion to Dismiss. (ECF No. 24.) As explained below, Plaintiff's First Amendment claim fails because her speech was made pursuant to her official duties. Therefore, Defendants' Motion is granted.


         Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss for "failure to state a claim upon which relief can be granted." The Rule 12(b)(6) standard requires the Court to "assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is "whether the complaint contains 'enough facts to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss "is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). "Thus, 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'" Id. (quoting Twombly, 550 U.S. at 556).

         However, to survive a motion to dismiss, a plaintiff must "frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief. 'Factual allegations must be enough to raise a right to relief above the speculative level.'" Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 545 & 556). Plaintiff must plead more than merely "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id.


         The following facts are drawn from Plaintiff's Amended Complaint (ECF No. 23) and assumed to be true.

         Plaintiff began working for El Paso County (the "County") in September 2015. She was hired, along with Defendant Jerry Cordova ("Cordova") to administer a federal grant related to fire and flood mitigation on behalf of the El Paso County Regional Watershed Collaborative (the "Collaborative"). (ECF No. 23 ¶ 2.) Cordova is the program coordinator of the program for which Plaintiff worked. (Id. ¶ 5.) Plaintiff was hired by Defendant Reid ("Reid"), the executive director of the County's public services department, through which the federal grant monies were channeled. (Id. ¶¶ 3, 6.) While Plaintiff worked at the County, she and Cordova were the only two employees paid under the grant. (Id.)

         Under the grant's terms, both Plaintiff and Cordova were required to work 40 hours per week on the grant project, and were not allowed to work on other matters during those hours. (Id. ¶ 7.) Plaintiff and Cordova were required by the "person in charge of timekeeping for the [C]ounty" to "confirm that they worked 40 hours/week on grant-related matters." (Id. ¶ 8.) In October and November 2015, Plaintiff noticed Cordova "was mis-reporting his time on the grant, " and "that although he was paid for working a 40-hour week, by November [2015] he was working only approximately three days per week on the grant, " while at other times Reid allowed him to work on unrelated matters. (Id.)

         Plaintiff reported this alleged "wage theft of federal funds" to two members of the Collaborative's leadership committee and to the County's human resources department, where she filed a formal complaint. (Id. ¶¶ 9-10.)Cordova met with human resources staff regarding this complaint on December 1, 2015. (Id. ¶ 11.)

         Plaintiff was terminated two weeks later, on December 14, 2015, via a document signed by Reid, citing "not fulfilling the expectations of the position and not completing the initial review period." (Id. ¶¶ 11, 12.) Plaintiff alleges the stated basis for her termination was "not true, " and that others involved in the grant, including members of the leadership committee, had complimented her job performance. (Id. ¶ 13.) She alleges Cordova knew Plaintiff's "whistleblowing" could harm his employment. (Id. ¶ 15.) She also alleges that Cordova was a friend and office-mate of another member of the leadership committee, Defendant Smith ("Smith") (id. ¶¶ 4, 16), that Smith wanted to protect Cordova, that Reid "wanted to terminate [Plaintiff] to protect his own employment, " and that Cordova, Smith, and Reid therefore conspired to terminate her in retaliation for reporting Cordova's misuse of hours or "wage theft." (Id. ¶¶ 10, 16).

         III. ANALYSIS A. First Amendment Claim

         Plaintiff's only federal claim is brought under 42 U.S.C. § 1983, alleging violation of her First Amendment right "to speak out on matters of public concern." (Id. ¶¶ 17-23.)

         1. Relevant Law

         Claims for retaliatory discharge of a public employee in violation of the First Amendment are evaluated under the five steps of the "Garcetti/Pickering" test:

(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) ...

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