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Tonjes v. The Park County Sheriff's Office

United States District Court, D. Colorado

January 4, 2018

WELLES TONJES, Plaintiff,
v.
THE PARK COUNTY SHERIFF'S OFFICE; FRED WEGENER, in his individual capacity; and MARK HANCOCK, in his individual capacity, Defendants.

          MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' MOTION TO DISMISS

          Kelly H. Rankin Magistrate Judge

         This matter comes before the court on the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure12(b)(1) and 12(b)(6) (doc. #13) filed by Defendants Park County Sheriff's Office, Fred Wegener, and Mark Hancock on May 3, 2017. Plaintiff Welles Tonjes filed his Response in Opposition to Defendants' Motion to Dismiss (doc. #27) on June 20, 2017, which was followed by Defendants' Reply in Support of Defendants' Motion to Dismiss (doc. #30) on July 7, 2017. On July 12, 2017, Plaintiff Tonjes filed a Notice of Supplemental Authority in Support of his Response in Opposition to Defendants' Motion to Dismiss (doc. #31).

         The parties consented (doc. #17) to magistrate judge jurisdiction to “conduct all further proceedings in this civil action, including trial, and to order the entry of a final judgment, ” pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2. Accordingly, the case was referred on May 11, 2017. Magistrate Judge Craig B. Shaffer heard oral argument on the pending motion at a hearing on July 13, 2017. Judge Shaffer subsequently became unavailable, and during his unavailability the case is referred to the undersigned. I have carefully reviewed the parties' briefs and attached exhibits, the entire case file, the case law cited by the parties, and the arguments advanced by counsel during the July 13 hearing. The court also has conducted its own legal research. For the following reasons, Defendants' motion is GRANTED IN PART and DENIED IN PART.

         PROCEDURAL BACKGROUND

         On February 24, 2016, a member of the Park County Sheriff's Office was killed and two of his colleagues were wounded while attempting to enforce a civil eviction notice entered against Park County resident Martin Wirth. During this incident, Mr. Wirth also was shot and killed. The lawsuit presently before the court arises from that unfortunate incident.

         Plaintiff Tonjes commenced this action on February 24, 2017 by filing a Complaint pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1367. The Complaint asserted claims against the Board of County Commissioners for Park County, the Park County Sheriff's Office (hereinafter the “Sheriff's Office”), Sheriff Fred Wegener, and former Captain Mark Hancock.[1] Plaintiff's First Claim asserts Defendants deprived him of a constitutionally protected property interest on February 29, 2016 by demoting him three levels without cause as required by the Sheriff's Office Policy and Procedures Manual (hereinafter the “Manual”). The Second Claim alleges Defendants violated Plaintiff Tonjes' First Amendment right to freedom of association by taking adverse action against Mr. Tonjes based upon his association “with former Undersheriff [Monte] Gore regarding their joint belief that Defendants Wegener and Hancock had acted recklessly and inappropriately regarding the Wirth situation, which led to the death of two individuals and serious injuries against two others.” See Complaint at ¶ 54. The Third Claim alleges under the Fourteenth Amendment that Defendants Sheriff's Office and Wegener deprived Plaintiff Tonjes of his constitutionally protected liberty interest in his good name. The Fourth and Fifth Claims assert, respectively, breach of contract and promissory estoppel on the part of Defendant Sheriff's Office.

         To place the pending motion in a factual context, a brief summary of the allegations in the Complaint may be helpful. In November 2009, Plaintiff Tonjes joined the Park County Sheriff's Office after serving as a law enforcement officer for over 35 years.[2] Mr. Tonjes alleges that when he started with the Sheriff's Office he received a copy of the Manual, and thereafter received occasional written updates.[3] Over the course of seven years with the Sheriff's Office, Mr. Tonjes served as a Detention Deputy, Patrol Deputy, Patrol Corporal, Patrol/Investigation Sargent, and most recently as a Patrol Senior Sargent. During that same period, Plaintiff received positive performance reviews, as well as several Letters of Appreciation, Letters of Gratitude, and a Special Citation for Bravery.

         In February of 2016, the Sheriff's Office was asked to assist in serving a civil eviction notice on Martin Wirth. The Complaint alleges that the Sheriff's Office knew that Mr. Wirth was “anti-government and anti-police, ” as well as “armed, dangerous, and violent.” Complaint at ¶ 22. For these reasons, Undersheriff Gore instructed Captain Hancock that “Park County Officers should under no circumstance attempt to enter the Wirth residence.” Id. at ¶ 23. Prior to February 24, 2016, Plaintiff Tonjes expressed the same view in conversations with Sheriff Wegener, Captain Hancock and others. Id. at ¶ 24. Leading up to the incident on February 24, 2016, Plaintiff Tonjes had the understanding that the deputy officers participating in the eviction process would withdraw “if Mr. Wirth refused to come to the door or refused to leave his home.” Id. at ¶ 25.

         Undersheriff Gore and Sargent Tonjes learned on February 24 that Sheriff Wegener and Capt. Hancock had adopted a different strategy, choosing instead to involve several members of the SWAT team in the eviction enforcement effort. Id. at ¶ 26. When Mr. Wirth refused to leave his property, “Sheriff Wegener and Capt. Hancock ordered the deputies to storm the home and forcibly enter the premises.” In the ensuing exchange of gun fire, “Corporal Nate Carrigan and Mr. Wirth were shot and killed, ” and “[t]wo other deputies suffered [nonfatal] gunshot wounds.” Id. ¶ 27.

         Following the fatal altercation at the Wirth residence, Plaintiff Tonjes and Undersheriff Gore expressed their belief that the incident, and the associated deaths and injuries, “were caused by the inappropriate and reckless orders of Sheriff Wegener and Capt. Hancock.” Id. at ¶ 28. The Complaint further alleges that “Defendants Hancock and Wegener knew or suspected that Sgt. Tonjes and Undersheriff Gore had expressed concern about their handling of the Wirth situation.” Complaint at ¶ 29. Undersheriff Gore told Plaintiff Tonjes on February 26, 2016, that Sheriff Wegener “angrily excluded [him] from” a meeting convened at the Sheriff's Office to discuss the Wirth incident. Id. at ¶ 30. Later that same day, while they were off-duty, Undersheriff Gore and Sergeant Tonjes went to Captain Hancock's residence to discuss the Wirth incident. The Complaint alleges that “[n]either were meeting with Mr. Hancock in their official capacities, ” but instead “were visiting him as private citizens.” Id. at ¶ 31. During the ensuing conversation at the Hancock residence,

Undersheriff Gore told Hancock that he held Sheriff Wegener fully responsible and to blame for the unnecessary violence, death, and injuries at the Wirth eviction. In response, Capt. Hancock became angry, appeared to choke, and came up out of his chair aggressively.

Id. at ¶ 32.

         The Complaint alleges that “[s]oon thereafter, Capt. Hancock informed Sheriff Wegener of his meeting with Sgt. Tonjes and Undersheriff Gore, ” and that “Wegener and Hancock decided to discipline or even fire Plaintiff Tonjes and Undersheriff Gore because of their opinions regarding how the Wirth situation was handled.” Id. at ¶ 34. When Plaintiff Tonjes arrived for work on February 29th, Sheriff Wegener informed him that he was being demoted three levels from a Senior Sargent, and that he should “report to work the next day as a Patrol Officer.” That demotion would result in a significant reduction in pay. Id. at ¶ 35.

         In explaining his decision to demote Plaintiff Tonjes, Sheriff Wegener said that he was responding to complaints that Plaintiff had supposedly "yelled" at two subordinates. However, the Complaint states that Sheriff Wegener had not previously informed Plaintiff of these allegations. Plaintiff Tonjes told Defendant Wegener that the allegations were unfounded. Complaint at ¶¶ 36 and 37. Prior to telling Plaintiff that he was being demoted, Defendant Wegener “did not inform Sgt. Tonjes that he was considering any discipline against him, did not inform Sgt. Tonjes of any of the accusations that had been made against him, [ ] did not give him an opportunity to respond, ” and “did not follow the procedures regarding the investigation of complaints contained in Office Policies 318-320.” Id. at ¶ 42. Believing that the Sheriff's action had made his working conditions intolerable, Plaintiff Tonjes “involuntarily resigned his employment” on February 29, 2016. Id. at ¶ 43.

         The Complaint also alleges that:

In deciding to demote Sgt. Tonjes, Defendants Wegener and Hancock were not acting in the best interests of the Office or County. Their decision was solely motivated by their desire to retaliate against Sgt. Tonjes because of his opinions and associations regarding the Wirth mishap. By demoting Sgt. Tonjes, Defendants Wegner and Hancock hoped to create the false impression that Sgt. Tonjes was responsible for the tragedy at the Wirth property.

Id. at ¶ 39.

         On March 2, 2016, Sheriff Wegener allegedly spoke with a reporter from a Denver television station, and during that conversation stated that his decision to demote Sergeant Tonjes “related to the handling of how the deputies responded [at the Wirth scene.].” In the wake of that conversation, a television story reported that “a Park County Sheriff Sargent was in the process of being demoted and then resigned ... over the tactics that lead [sic] to the Feb. 24 death of Cpl. Nate Carrigan.” Id. at ¶ 44.

         Defendants “deny the vast majority of the allegations, statements and conclusions set forth in the Complaint, ” and argue that Mr. Tonjes “has failed to state a cognizable claim for relief.” Defendants Wegener and Hancock also insist that they “are clothed with qualified immunity” as to Plaintiff's alleged constitutional claims. See Scheduling Order (doc. #21), at 7; motion (doc. #13) at 12.

         ANALYSIS

         Rule 12(b)(6) states that a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         To withstand a motion to dismiss, a complaint must contain enough allegations of fact “to state a claim to relief that is plausible on its face.” Id. As the Tenth Circuit explained in Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007), “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” “The burden is on the plaintiff to frame ‘a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic, 550 U.S. at 556). A complaint must set forth sufficient facts to elevate a claim above the level of mere speculation. Id. “Nevertheless, the standard remains a liberal one, and ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of these facts is improbable and that a recovery is very remote and unlikely.'” Jordan v. Cooley, No. 13- cv-01650-REB-MJW, 2014 WL 923279, at *1 (D. Colo. Mar. 10, 2014) (quoting Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)). See also Sanchez v. Hartley, 810 F.3d 750, 756 (10th Cir. 2016) (quoting Bell Atlantic, 550 U.S. at 556).

         Generally, a court considers only the contents of the complaint when ruling on a Rule 12(b)(6) motion. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Exceptions to this general rule include: documents incorporated by reference in the complaint; documents referred to in and central to the complaint, when no party disputes their authenticity; and “matters of which a court may take judicial notice.” Id. (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). Cf. Gilbert v. Bank of Am. Corp., No. 11-cv-00272-BLW, 2012 WL 4470897, at *2 (D. Idaho Sept. 26, 2012) (noting that a court may take judicial notice “of the records of state agencies and other undisputed matters of public record” without transforming a motion to dismiss into a motion for summary judgment). If a plaintiff does not incorporate by reference or attach a document to its complaint, a defendant may submit an indisputably authentic copy which the court may consider in ruling on a motion to dismiss. GFF Corp. v. Ass'd Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). See also Rooker v. Ouray Cty., 841 F.Supp.2d 1212, 1216 (D. Colo. 2012), aff'd, 504 Fed.Appx. 734 (10th Cir.2012) (considering employee manual attached to Rule 12(b)(6) motions, whose authenticity was not disputed).

         A. Plaintiff's Due Process Property Interest, Breach of Contract and Promissory Estoppel Claims

         In moving to dismiss, Defendants argue that Plaintiff's first claim must fail as Mr. Tonjes did not have a due process property interest either in his continued employment with the Park County Sheriff's Office or his rank as a Patrol Senior Sergeant.[4] In essence, Defendants contend that if C.R.S. § 30-10-506 unequivocally vests county sheriff's with exclusive and final decision-making authority over the hiring and firing of sheriff's office personnel, that same unfettered discretion must extend to Defendant Wegener's right to demote subordinates. The Motion to Dismiss further argues that Plaintiff Tonjes was not terminated or constructively discharged from the Sheriff's Office; rather he voluntarily quit. Defendant Hancock maintains that he cannot be individually liable under the first claim for relief because he did not personally participate in the decision to demote Plaintiff Tonjes. Finally, Defendants Wegener and Hancock maintain that they are entitled to qualified immunity because Plaintiff's first claim does not assert a cognizable due process violation.

         Plaintiff asserts, to the contrary, the Complaint properly alleges a due process claim predicated on a “contractual and promissory right to be free from discipline and demotion without clearly specified cause.” More particularly, Mr. Tonjes argues that “Defendants' right to terminate at-will has no bearing on [their] right to discipline or demote inconsistent with the Manual” and that “Defendants' promises regarding discipline and demotion for cause created a constitutionally protected property interest in Plaintiff Tonjes' job.” As for Defendants' claim of qualified immunity, Mr. Tonjes maintains that United States Supreme Court and Tenth Circuit precedents “clearly establish” that “an implied contract or otherwise enforceable promise may give rise to a constitutionally protected property interest for due process purposes.” Finally, Mr. Tonjes asserts he was subjected to employment circumstances that were sufficiently intolerable to constitute constructive discharge. He also contends, in the alternative, that proof of a constructive discharge is not a required element of his due process claim and that a failure to show constructive discharge would only impact the scope of any economic damages he might have suffered.

         The Due Process Clause of the “Fourteenth Amendment provides that no state shall ‘deprive any person of life, liberty, or property, without due process of law.'” Estate of DiMarco v. Wyo. Dept. of Corrections, 473 F.3d 1334, 1339 (10th Cir. 2007) (quoting the Due Process Clause of the U.S. Const. amend. XIV, sec. 1). “To determine whether a plaintiff was denied procedural due process, we engage in a two-step inquiry: (1) Did the individual possess a protected interest to which due process protection was applicable? (2) Was the individual afforded an appropriate level of process?” Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir. 1998). See also Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006) (“[a] due process claim under the Fourteenth Amendment can only be maintained where there exists a constitutionally cognizable liberty or property interest with which the state has interfered”); Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000) (to prevail on a due process claim, a plaintiff must “first establish that a defendant's action deprived plaintiff of a protectible [sic] property interest”).

         “To demonstrate a property interest, ‘a person clearly must have more than an abstract need or desire for [a certain benefit] . . . [h]e must have more than a unilateral expectation of it;' rather a person must have a ‘legitimate claim of entitlement.'” Reid v. Stanley, No. 1:11-CV- 2043, 2011 WL 6371793, at *4 (N.D. Ohio Dec. 20, 2011). The Tenth Circuit has held that “[t]he existence of a property interest is defined by existing rules or understandings that stem from an independent source such as state law - rules or understanding that secure certain benefits and [ ] support claims of entitlement to those benefits.” Hennigh, 155 F.3d at 1253. Thus “constitutionally protected property interests are created and defined by statute, ordinance, contract, implied contract and rules and understandings developed by state officials.” Hulen v. Yates, 322 F.3d 1229, 1240 (10th Cir. 2003).

         That same analysis governs whether there is a property interest in a particular employment status. Hennigh, 155 F.3d at 1254 (citing Anglemyer v. Hamilton Cty. Hosp., 58 F.3d 533, 539 (10th Cir. 1995), stating a property interest might be created by specific statutory provisions or contract terms qualifying an employer's discretion to reassign or transfer the employee). See also Greene v. Barrett, 174 F.3d 1136, 1140 (10th Cir. 1999) (holding that state law “can create a protected property interest in a particular employment status or rank if it ‘places substantive restrictions on the discretion to demote an employee, such as providing that discipline may only be imposed for cause'”).

         It is generally understood that an employee hired for an indeterminate period is an at-will employee. “This relationship means that either the company or the employee can terminate the employment relationship without cause and without notice, and that termination does not give rise to a cause of action.” Winkler v. Bowlmor AMF, 207 F.Supp.3d 1185, 1189 (D. Colo. 2016) (internal citations omitted). “However, this presumption is rebuttable.” Id. See also Hulen, 322 F.3d at 1240 (the “general rule” that “no protected property interest is implicated when an employer reassigned or transfers” an employee “is not absolute if an employee can point to a specific contractual provision and surrounding circumstances establishing a property interest.”). “In certain circumstances, an ‘at-will' employee may enforce an employer's statements, such as those made in an employee manual, on a theory of (1) a breach of implied contract or (2) promissory estoppel.” Winkler, 207 F.Supp.3d at 1189-90. Cf. Silchia v. MC Telecomm's Corp., 942 F.Supp. 1369, 1375 (D. Colo. 1996) (“Even if there is a valid employment-at-will disclaimer in an employment handbook, an employer may nevertheless be found to have manifested an intent to be bound by its terms if the handbook contains mandatory termination procedures or requires ‘just cause' for termination.”)

         Under Colorado law, “[e]ach sheriff may appoint as many deputies as the sheriff may think proper and may revoke such appointments at will; except that a sheriff shall adopt personnel policies, including policies for the review of revocation of appointments.” Colo. Rev. Stat. § 30-10-506. The Park County Sheriff's Office Policy and Procedure Manual plainly states that “Park County, including the Sheriff's Office, is an ‘at-will' employer.” See Policy 303(III) set forth in Exhibit A (doc. #27-1) at page 9 of 105, attached to Plaintiff's response brief. Elsewhere, the Manual acknowledges that

The Sheriff's Office is an “employment at will” employer. Sworn employees serve “at the pleasure” of the Sheriff. Both the Employee and the Sheriff's Office have the right to end employment at any time. Employees may be dismissed for reasons discussed in Chapter III, Section 320, Disciplinary Action.

See Policy 309(IV)(A)(4) set forth in Exhibit A (doc. #27-1) at page 24 of 105, attached to Plaintiff's response brief.

         But, as the Tenth Circuit noted in Williams v. McKee, 655 F. App'x 677, 686 (10th Cir.2016), a constitutionally protected claim of entitlement “may take the form of ‘state statutes, local ordinances, established rules, or mutually explicit understandings.” Id. at 686-87 (where plaintiff challenged his termination for failing to comply with an order issued by the sheriff, the Tenth Circuit noted “there [were] simply no facts in the amended complaint to support the assertion that . . . termination implicated a liberty interest”).

         Defendants rely on Williams, Bristol v. Board of County Commissioners, 312 F.3d 1213, 1219 (10th Cir. 2002) and Seeley v. Board of County of Commissioners, 791 P.2d 696 (Colo.1990) to argue the Manual cannot be enforced because “self-imposed limitations on [a sheriff's]right to discharge employees at will are invalid.” Doc. #13 (motion) at 6. Seeley and Bristol interpreted a former version of C.R.S. § 30-10-506 which provided “[e]ach sheriff may appoint as many deputies as he may think proper … and may revoke such appointments at his pleasure.” C.R.S. § 30-10-506 (2005). In 2006, the legislature amended § 30-10-506 to read:

Each sheriff may appoint as many deputies as the sheriff may think proper and may revoke such appointments at will; except that a sheriff shall adopt personnel policies, including policies for the review of revocation of appointments. Before revoking an appointment of a deputy, the sheriff shall notify the deputy of the reason for the ...

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