Eremondi et al v. Pueblo City-County Library District et al

Filing 107

ORDER Granting Defendants' Motions for Summary Judgment 86 , 87 , 88 and 89 and the Clerk will enter judgment for the defendants, dismissing this civil action and awarding statutory costs, signed by Judge Richard P. Matsch on 2/19/2010.(rpmcd)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Richard P. Matsch Civil Action No. 07-cv-01882-RPM DESIREE EREMONDI, PATTY JOHNSON, JAMES KLODZINSKI, PATRICIA MCCLELLAND, LAURA TILLEY and JANE WILEY,

v.

Plaintiffs,

PUEBLO CITY-COUNTY LIBRARY DISTRICT, JON WALKER, NICHOLAS GRADISAR, JOYCE VIGIL, SEAN TAPIA, and FRANCES TERRAZAS-ALEXANDER,
Defendants.

ORDER GRANTING SUMMARY JUDGMENT Seeking a remedy pursuant 42 U.S.C.§ 1983, the plaintiffs claim that the defendants to violated the First Amendmentto the United States Constitution,applicableto them under the

Fourteenth Amendment, by attempting to compel a retraction to part of the contents of a letter
published in a local newspaper and taking disciplinary action against the plaintiffs when they refused. The defendants moved for summary judgment of dismissal. From the filed papers and the oral argument at the hearing on February 10, 2010, the following factual summary is
undisputed.

In June, 2005, all of the plaintiffs were employees of the defendant, Pueblo City-County
Library District (District).

The defendant Jon Walker was Executive Director of the District and

defendants Joyce Vigil, Sean Tapia and Frances Terrazas-Alexander were members of a seven member Board of Trustees ("Board") governing the District.

The plaintiffs were among those advocating for organizing a union for the District's
employees. That issue was a matter of public interest in the community. The Board retained Dawn

Kruger of Peak Surveys to conduct a survey of the employees to collect opinions on questions the

Board considered to be relevant to the union organizing issue. The survey questionnaire was distributed to the District's employees and the completed forms were collected on July 5, 2005. The results were mailed to the Board members on July 11, 2005, and reported publicly at the Board's regularly conducted monthly meeting on July 28, 2005. Ms. Kruger appeared at that meeting to discuss the survey results. In response to a question from the Board's president, Joyce Vigil, Ms. Kruger said that the survey did not ask the employees whether they wanted a union to represent them. Question 2 on the form provided four multiple choice responses to the question,
"Please tell us what you feel [sic] the best approach to resolving work-pace issues." One of those

choices was "collective bargaining through a union," The Board decided against submitting the issue of organizing a union to the employees at an election.
On September 4, 2005, the Pueblo Chieftain, a newspaper of general circulation, published

a letter criticizing the Board's actions and signed by all of the plaintiffs, identifying themselves as the "Library Union Organizing Committee." concerning the survey form: Even though it purported to determine whether or not the staff wanted a union, the word "union" did not appear as a choice anywhere on this multiple choice survey. . . . In the survey results disseminated by the board, a blank survey form is included in the back. This survey form does not match the survey that staff members actually filled out. In this bogus survey, the word "union" is in some of the choices. This doctoring of the survey is a grave indictment. Exhibit A to Complaint. Jon Walker considered the allegations of that paragraph to be false. At his request, Dawn Kruger wrote a letter, dated September 6, 2005, saying that the survey form in her report was the That letter contained the following paragraph

2

same as that distributed to the employees.

Mr. Walker and Ms. Vigil discussed the

appropriateness of a demand for a retraction of what was thought to be false in the published letter.

Mr. Walker consulted Nicholas Gradisar, a private attorney serving as counsel for the
District, concerning the legality of that action. Mr. Gradisar gave his approval after some research

on the First Amendment. Mr. Gradisar drafted a letter for Mr. Walker's signature. On September 8,2005, Mr. Gradisar met with Mr. Walker in his office. Ms. Vigil, Ms. Tapia and Ms Terrazas-Alexander were present. The draft letter prepared by Mr. Gradisar was

discussed along with a form letter for the plaintiffs to sign. Later that day, Mr. Walker and Mr. Gradisar met with each of the plaintiffs and gave them the two letters drafted by Mr. Gradisar. Copies of the demand for retraction letter (Ex. R) and the retraction form letter (Ex. S) are

attached.Both letters are specific as to the parts of the published letter that Mr. Walker asserted
to be false.

Upon the failure of the plaintiffs to comply with the demand, a letter of admonition (Ex. T) containing the following paragraph as placed in the plaintiffs' personnel files: You are hereby admonished and warned that your publication of false statements and information regarding the Pueblo City-County Library District falls far short of the standard and expectations the District has of its employees. Any further violations where you make false statements or publish false information regarding the Library District will result in immediate disciplinary action which may include termination of your employment with the District.
No other disciplinary action has been taken against any of the plaintiffs. All but two of them

remain employed by the District. The Chieftain letter was an expression of opinion on a matter of public concern and the plaintiffs' publication of it is protected by the First Amendment. The defendants deny such

protection, contending that false statements are not protected. The falsity of the statements may be debated. The plaintiffs have asserted that some of them received survey forms which did not contain the word "union" but no such form has been produced.

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It is not necessary to determine any issue of falsity because the evidence is clear that both

Jon Walker and Nicholas Gradisar reasonably believed that the statements they asked to be
recanted were false. That reasonable belief entitles them to qualified immunity from any liability protections afforded to the plaintiffs.

for infringing the constitutional

Jon Walker relied on the advice of counsel and did not in any way mislead Mr. Gradisar

concerning the facts relied on by him in drafting the letters.
reasonable interpretation of the applicable law.

Mr. Gradisar's opinion was a

Jon Walker's actions in this matter were within the authority granted to him by the Board

No official Board action was required and there is no showing that Board policy was involved
There is no showing of personal participation by the Board member defendants in the decision to demand retractions beyond their awareness that the letters had been prepared and would be delivered to the employees. If they are to be considered to have approved or ratified that action,

they are also protected by qualified immunity. Upon the foregoing, it is ORDERED that the defendants' motions for summary judgment [Docs. 86, 87, 88, & 89]

are granted and the Clerk will enter judgment for the defendants, dismissing this civil action and awarding statutory costs

BY THE COURT:

4

1"-

September 8,2005

Ms.Laura1'ill~ Pueb1o City-CQ1mty L1~
100 F;-: Abriendp'Ave.
Pueblo~ CO 81004 .'

District.

DearMs. ~ey:
On september4,.290S. ~ letter 3igned by you Waspublished in the PJleblo Chieftain. That letter cOOtains mous factDa1~Urepresen"tanonS have ad"YeTsely:Bff~ ~e that
1>BebloCitj-Cotmty 1.t~.Di~ct. . . .' .:.

100 ~
."PIJebkI.

AbzfmxIo A VIDa
r;o. 81 004-4232

. . Erst, the letter alleged'that the ward "union" did not appea,r thesmvey 1Dstn1ment. in diS:tn"buted -cmpl~. to This is false. The wold ~On" appearsat least seven (7)
tiJ;Eies 1he :S11IVe.Y ~ mmmnent, :including,
~t appIoach'~ . . .' teSolVjng workplace .. issues

(719) 562.jQX) FIX (719) 562-.5610

~ as .a.choice in questioo 2, s. the ""collective bargaining1brou-8ba union. fl
.' . -

.

.~.~~b~.OtJ
JOJJ'WaIker :Exemtivcj)~...
bwIiDp Public

Second,1he~tter isseited. B.S fact that 1hesurvey fOIm iJ1c1uded:in i'eport :waS :a "the -aifferent than:the iarm "dis1rib'uted fined out by' staff mcmbas. Your letter .and' ~1o~esurveyas a'"bogosb18n:k: ~.and. theasserticin-was~1hat.1hc
surv.ey :::fuml was "~fl

Attached ~to'

js a letter froIn Dawn Xrup from

1JtnIY

Peak surveys stati,ng:that .survey, -the f~ given to.and COID:Pl~ ~y the ~°i'e.es..

attached:to the ":Ieporththeexact;SmYey Distrl~ you .arc:/reti.1o.-express

.;Bukman"BRIx;Il
t.aDiI 'BraIroh

~BIaJ.:h

As an ~:Ioyee' of 1hePueblo City-County L1~

your opinion QD matters of :publicjn=est advasctyaff.ectethe ~OD d .

Here, yoi,1and your co-signCIS have

asserteas'fact,falseirifmmanon.The publication thatfalcSeinf~on d of.
of thePuebloCitY-County .' . L1~ District.

:has

o'C-unjty:'Sa~ 4 wuda)e "EIcI=DtIry
. Colorado City o:BeDJah CommImiry Sc!W)oI Ctt.

demand.an ~ate ' retraction of 'the. false infOImation ~~ , Dilder,:yO\u:' si8:D~1;1~. and m the event,:that:a 1f, J;etIaction s1:Ibsta~. :theform a~l"::bea in beIetDis :not.received'by'the BxeCuaveDjrectm:not 1aierthan '5:00 p~ on 1he 121b 4aY of SeiJtem~; ~5, disC:iPlinaryacri<?ri may bc tB:ke.n against ~ up,to :and including the' teJ;mmArionof yom ~ayment -AD,y 'further dissemin~non or publication of false mimmation concerningthe PUeti1oCit;y-County l.1"brary Distri~
I

Theidare. the Paeblo City-~O\1D.t;y1..ibr8ry District~d its Boa:rd, .DireCtor& of

B1de PItt. c~"!'J CeDter North°}da~fary a
Rilley ~ Scboo1 . R.ye~IY . SOuhMesaElemelltary

v~

EJemearmy

~yyou'will'resu1m immediate t discipJina,ry ~on.
VeIY 1;r;IlJ,Y :yams.

,

PUEBLOQTY -couNTY UBRARY D~c;J:

~Wa1ker

~D'Y\;W~'
DEPOSITION EXHIBIT

:z -

.)

~
RETRACTION On September 4, 2005, a Letter to the Ealtorwas publisl:ted in1he Pueblo

Chieftainover my signature. That letter erroneouslystatedthat the survey distributedto the employees of ~e Pueblo City-CountyUbrary 0 istrict did not containthe word "union" as a choice for the employeescompleting"the survey.

My assertion that letterwas wrong, since the word .union~'8ppearsat least in seven(7)times inthe document.The letteralso claimed the surveyform . 1hat
attached10the report was different than the survey distributed10 and completed Both of1hese assertionswere wrong.

by the employees.It was alsoclaimed .ttiat the survey had been"doctored.~
.

I regret the factual errors contained in the lett~r and hereby retract those assertions.

laura TIlley

Date