United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER REGARDING
DEFENDANTS' MOTION TO DISMISS
H. Rankin Magistrate Judge
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.
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
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
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. 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.
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. 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. 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.
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
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.
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.
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.
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
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.
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
“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.
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).
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).
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
Plaintiff's Due Process Property Interest, Breach of
Contract and Promissory Estoppel Claims
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. 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
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.
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”).
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).
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'”).
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.”)
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
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
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”).
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 ...