United States District Court, D. Colorado
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendants' Motion
to Dismiss Plaintiff's Amended Complaint
[#16] (the “Motion”). Plaintiff
filed a Response [#23] in opposition to the Motion [#16], and
Defendants filed a Reply [#26]. The Court has reviewed the
pleadings, the entire case file, and the applicable law and
is sufficiently advised in the premises. For the reasons
set forth below, the Motion [#16] is
GRANTED, as outlined below.
is an officer of the Denver Police Department
(“DPD”) and an active employee of Defendant City
and County of Denver (“Denver”). Am.
Compl. [#6] ¶¶ 1, 4.At all times relevant to this
lawsuit, Defendant Robert White (“White”) was the
Chief of Police for the DPD and Defendant David Quinones
(“Quinones”) was the Deputy Chief of Police for
the DPD. Id. ¶¶ 5-6.
was hired as a law enforcement officer with the DPD in 1998
and has served in that capacity since then. Id.
¶ 9. Over the course of his career with the DPD,
Plaintiff has received several accolades, including the
Distinguished Service Cross, Superior Tactics Star, and Life
Saving Award, as well as two letters of commendation.
Id. ¶ 10. In 2015, Plaintiff took the Denver
Civil Service Commission test for the position of Sergeant
and placed twenty-second overall out of the sixty-one
accepted applicants. Id. ¶ 11. This ranking,
which is based on the test scores, traditionally determines
the order in which the DPD promotes its officers, with the
higher-ranked officers receiving their promotions
first.Id. ¶ 12. By September 2016,
the twenty-one officers ahead of Plaintiff on the list had
all been promoted, leaving Plaintiff as the highest-ranked
candidate on the Sergeant promotion list. Id.
is married to Angela Simon (“Simon”), who served
as a law enforcement officer with the DPD until her
termination in October 2014. Id. ¶¶ 13-14.
In October 2015, Ms. Simon filed a wrongful termination and
retaliation complaint against the DPD with the United States
Department of Labor, Wage and Hour Division, alleging that
the DPD retaliated against her for invoking her rights under
the Family Medical Leave Act (“FMLA”).
Id. ¶ 15. On September 6, 2016, Ms. Simon filed
a complaint in the Denver District Court, asserting that the
City and County of Denver and the DPD interfered with her
FMLA rights, retaliated against her for her exercise of those
rights, and breached her employment contract with them.
Id. ¶¶ 16, 17. The City and County of
Denver and the DPD were served with the complaint on November
22, 2016, and the lawsuit was removed to the United States
District Court for the District of Colorado on December 16,
2016. Id. ¶¶ 18-19.
September 9, 2016, three days after filing her complaint in
State Court, Ms. Simon, acting in a civilian capacity,
attended a meeting with Commander Ronald Saunier
(“Saunier”) and Lieutenant Robert Wycoff
(“Wycoff”) of the DPD. Id. ¶ 16. At
the time, Lt. Wycoff was an executive officer who reported
directly to Defendant White, Chief of Police. Id.
During that meeting, Ms. Simon briefly discussed the fact
that her husband, Plaintiff, was on the Sergeant promotion
list. Id. Roughly five hours after the conclusion of
that meeting, Plaintiff was called into a meeting with
Commander Saunier, who informed Plaintiff that he was being
removed as acting Sergeant. Id. Commander
Saunier's stated reason for the decision was that
Plaintiff's “Class 2, ” or self-initiated
arrest, statistics were too low. Id. Commander
Saunier also told Plaintiff that the order had come from
above him, which Plaintiff avers implies that the order had
come from either the Deputy Chief or Chief of Police, namely
Defendants Quinones or White, respectively. Id.
his removal as acting Sergeant, Plaintiff was sent to the
DPD's “Sergeant's School” starting in
November 2016. Id. ¶ 21. The 80-hour training
course is required for every officer who has been or is about
to be promoted to the rank of Sergeant. Id.
Meanwhile, Plaintiff endeavored to raise his “Class
2” statistics, and by the end of 2016, he had the
highest self-initiated arrest statistics in his detail.
Id. ¶ 19. On his annual evaluation, given on
January 15, 2017, Plaintiff received the highest
classification given to DPD officers: “Distinguished
Performance.” Id. ¶¶ 20, 22.
Plaintiff alleges that he was not counseled regarding his
self-initiated arrest activity during this review, nor had
any such counseling occurred at any point in his career,
notwithstanding the September 2016 meeting with Commander
Saunier. Id. ¶ 22.
January 2017, Plaintiff was listed as a witness with
discoverable information in Ms. Simon's wrongful
termination lawsuit against the City and County of Denver.
Id. ¶ 27. He was so listed by both parties to
the suit on their respective Fed.R.Civ.P. 26(a)(1)
disclosures (“Rule 26 Disclosures”). Id.
Plaintiff does not allege, however, that he ever testified or
provided other information in that case before it was
resolved in favor of the City and County of Denver, pursuant
to Fed.R.Civ.P. 56, on July 12, 2018. Id. ¶ 29.
The Complaint [#1] currently before the Court was filed one
week later, on July 19, 2018.
February 2017, while Ms. Simon's lawsuit was ongoing, the
DPD announced that there would be another promotional
ceremony on March 17, at which time it was allegedly well
understood that Plaintiff would be promoted to the rank of
Sergeant. Id. ¶ 23. However, on March 4, 2017,
Plaintiff was called into a meeting with Commander Saunier
and Defendant Quinones and was informed that he would not be
promoted to the rank of Sergeant, despite being the
highest-ranked officer on the Sergeant promotion list.
Id. ¶ 24. Plaintiff alleges he is the first
officer within the DPD who did not have any pending
disciplinary action to be passed over for a promotion at the
Sergeant level. Id. ¶ 25. Defendant Quinones,
explaining the DPD's decision not to promote him, told
Plaintiff that “while your stats have improved, I
don't know which Officer I'm going to get if I
promote.” Id. ¶ 24. There is no further
explanation of this statement provided in the Amended
Complaint [#6]. Additionally, there is no mention of these
statistics in the Denver Civil Service eligibility guidelines
for the rank of Sergeant, nor had Plaintiff received any
training regarding these statistics or their importance.
Id. ¶ 26. Moreover, Plaintiff alleges that
Defendants Quinones and White were aware that he was married
to Ms. Simon, that Ms. Simon had pending litigation against
the DPD and the City and County of Denver, and that he was
likely to provide testimony in that litigation in support of
Ms. Simon. Id. ¶ 28.
light of these allegations, Plaintiff asserts that he was
passed over for a promotion in retaliation for his
anticipated participation in his wife's FMLA claim
brought against the DPD and the City and County of Denver.
Id. ¶¶ 30-50. Plaintiff raises three
claims for relief against Defendants White and Quinones, both
in their individual and official capacities, and Defendant
Denver: (1) a violation of Plaintiff's First Amendment
right to free speech pursuant to 42 U.S.C. § 1983; (2)
unlawful discrimination against Plaintiff resulting from his
role as a testimonial witness in litigation pertaining to the
FMLA, 29 U.S.C. § 2615(b)(3); and (3) unlawful
discrimination against Plaintiff resulting from his role as
an individual who was about to give information in connection
with a proceeding under the FMLA, 29 U.S.C. §
2615(b)(2). Id. Plaintiff seeks damages as a result
of these alleged violations. Id. at 10. Defendants,
meanwhile, seek dismissal of all three claims pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief can be granted. Motion [#16] at 1.
Standard of Review
12(b)(6) tests “the sufficiency of the allegations
within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40
F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6)
motion, “[t]he complaint must plead sufficient facts,
taken as true, to provide ‘plausible grounds' that
discovery will reveal evidence to support plaintiff's
allegations.” Shero v. City of Grove, Okla.,
510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“[P]lausibility refers to the scope of the allegations
in a complaint: if they are so general that they encompass a
wide swath of conduct, much of it innocent, then the
plaintiff [has] not nudged [his] claims across the line from
conceivable to plausible.” Khalik v. United Air
Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (internal
quotations and citations omitted).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 677
(2009). However, “[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).
That said, “[s]pecific facts are not necessary; the
statement need only give the defendant fair notice of what
the . . . claim is and the grounds upon which it
rests;” the 12(b)(6) standard does not “require
that the complaint include all facts necessary to carry the
plaintiff's burden.” Khalik, 671 F.3d at
plausibility standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that defendant has acted unlawfully.”
Id. (citation omitted). As the Tenth Circuit Court
of Appeals has explained, “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.” Ridge at Red Hawk, LLC v. Schneider,
493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original).
“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.'”
Iqbal, 556 U.S. at 678 (citation omitted).
Court first addresses Plaintiff's claim that Defendants
“intentionally and willfully retaliated against”
him for “his anticipated First Amendment protected
speech in an effort to chill his free speech rights before he
was able to make the speech.” Am. Compl. [#6]
¶ 32. Plaintiff raises this claim pursuant to 42 U.S.C.
§ 1983, which provides that any person who “under
color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be
subjected, any [person] . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured.” 42
U.S.C. § 1983. Section 1983 does not create any
substantive rights-rather, it provides only a right of action
to remedy a violation of a right secured by the Constitution
or laws of the United States. Dixon v. City of Lawton,
Okla., 898 F.2d 1443, 1447 (10th Cir. 1990).
Tenth Circuit recognizes two separate claims arising from
First Amendment violations: (1) retaliation for engaging in
protected speech; and (2) unlawful prior restraint
prohibiting a citizen from making protected speech.
Brammer-Hoelter v. Twin Peaks Charter Acad., 602
F.3d 1175, 1182 (10th Cir. 2010) (“A prior restraint
claim is distinct from a retaliation claim because it is
based on a restriction that chills potential speech before it
happens, rather than an adverse action taken in response to
actual speech.” (internal quotation marks omitted))
(quoting Arndt v. Koby, 309 F.3d 1247, 1251 (10th
Cir. 2002)). Because Plaintiff has failed to specify which
specific § 1983 claim he intends to raise, instead
seemingly attempting to raise both, Am. Compl. [#6]
¶ 32, the Court addresses each in turn.