United States District Court, D. Colorado
ORDER GRANTING MOTION TO DISMISS
WILLIAM J. MARTÍNEZ, UNITED STATES DISTRICT JUDGE
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.
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).
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
following facts are drawn from Plaintiff's Amended
Complaint (ECF No. 23) and assumed to be true.
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.
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  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.)
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.
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).
ANALYSIS A. First Amendment Claim
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.
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)