Berger v. City and County of Denver

          ORDER

          KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's Amended Complaint [#16]^[1] (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.^[2] For the reasons set forth below, the Motion [#16] is GRANTED, as outlined below.

         I. Background

         Plaintiff 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.^[3]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.

         Plaintiff 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.^[4]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.

         Plaintiff 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.^[5] Id. ¶¶ 18-19.

         On 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.^[6] 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.

         Despite 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.

         In 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.

         In 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.^[7] Id. ¶ 28.

         In 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.

         II. Standard of Review

         Rule 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).

         “A 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 1192.

         “The 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).

         III. Analysis

         A. First Amendment

         The 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).

         The 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.

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