Johnston v. North Table Mountain Water & Sanitation District et al
Filing
61
ORDER granting 40 Motion for Summary Judgment. The claims asserted by the plaintiff, Kevin Johnston, in his complaint [# 38 ] are DISMISSED with prejudice. Judgment shall enter. The defendants are AWARDED their costs to be taxed by the clerk of th e court. The Expedited Unopposed Motion for Additional Time in Which to File Joint Exhibit List and Deposition Designations [# 51 ] isDENIED as moot. The trial set to begin 8/19/2013, at 8:30 a.m., is VACATED. This case is DISMISSED. By Judge Robert E. Blackburn on 8/9/2013. (klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-01790-REB-CBS
KEVIN JOHNSTON,
Plaintiff,
v.
NORTH TABLE MOUNTAIN WATER AND SANITATION DISTRICT, and
BART SPERRY,
Defendants.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Blackburn, J.
This matter is before me on the Defendants’ Motion for Summary Judgment
[#40]1 filed May 9, 2013. The plaintiff filed a response [#47], and the defendant filed a
reply [#49]. I grant the motion.2
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question) and
28 U.S.C. § 1367 (supplemental).
1
“[#40]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
2
The issues raised by and inherent to the motion for summary judgment are fully briefed,
obviating the necessity for evidentiary hearing or oral argument. Thus, the motion stands submitted on the
briefs. Cf. FED. R. CIV. P. 56(c) and (d). Geear v. Boulder Cmty. Hosp., 844 F.2d 764, 766 (10th
Cir.1988) (holding that hearing requirement for summary judgment motions is satisfied by court's review of
documents submitted by parties).
II. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Celotex Corp. V. Catrett, 477 U.S. 317, 322 (1986). A dispute is “genuine” if the issue
could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986); Farthing v. City of Shawnee, 39 F.3d
1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome
of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Farthing, 39
F.3d at 1134.
A party who does not have the burden of proof at trial and seeks summary
judgment must show the absence of a genuine fact issue. Concrete Works, Inc. v. City
& County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert.denied, 115 S.Ct. 1315
(1995). In contrast, a movant who bears the burden of proof must submit evidence to
establish every essential element of its claim or affirmative defense. See in Ribozyme
Pharmaceuticals, Inc. Securities Litigation, 209 F.Supp.2d 1106, 1111 (D. Colo.
2002). In either case, once the motion has been properly supported the burden shifts to
the nonmovant to show, by tendering depositions, affidavits, and other competent
evidence, that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All
the evidence must be viewed in the light most favorable to the party opposing the
motion. Simms v. Oklahoma ex rel Department of Mental Health and Substance
Abuse Services, 165 F. 3d 1321, 1326 (10th Cir.), cert. denied, 120 S. Ct. 53 (1999).
However, conclusory statements and testimony based merely on conjecture or
subjective belief are not competent summary judgment evidence. Rice v. United
2
States, 166 F.3d 1088, 1092 (10th Circ.), cert. denied, 120 S. Ct 334 (1999).
III. FACTUAL BACKGROUND
For 24 years, the plaintiff, Kevin Johnston, was an employee of defendant North
Table Mountain Water and Sanitation District. Mr. Johnston’s employment was
terminated on December 15, 2010. In his complaint [#38], Mr. Johnston asserts two
claims based on his termination.
From 2000 to 2010, Mr. Johnston was the Distribution/Collection Supervisor for
the district. In 2009, the District Manager directed all staff, including Mr. Johnston, to
identify potential cost saving ideas for the district. As the Distribution/Collection
Supervisor, Mr. Johnston was required to monitor and control expenditures, prepare
cost estimates, and gather data to produce annual budgets in conjunction with
long-term planning efforts. In addition, he routinely made efforts to identify cost savings
measures for the district.
On July 28, 2010, Mr. Johnston met with Rick Jeschke and defendant Bart
Sperry. Mr. Jeschke formerly was District Manager for the district. Mr. Sperry
succeeded Mr. Jeschke as District Manager. During this meeting, Mr. Jeschke and Mr.
Sperry discussed with Mr. Johnston allegations that Mr. Johnston was disrespectful to
engineers employed by the district. Mr. Johnston denies that he was disrespectful to
district engineers. During this meeting, Mr. Johnston cited three district engineering
projects which he thought were not cost effective.
On September 28, 2010, Mr. Johnston met the Board of Directors of the district
during one of the board’s regularly scheduled meetings. At this meeting, Mr. Johnston
expressed the opinion that four district engineering projects were not cost effective. He
cited the three projects he had discussed previously with Mr. Jeschke and Mr. Sperry
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and one additional project. During this meeting, a board member asked Mr. Johnston to
express an opinion about a fifth project, a five year project to upgrade the district’s
sewer system. Mr. Johnston opined that the project was not necessary.
In his deposition, Mr. Johnston was asked if he attended the September 28,
2010, meeting of the board in his capacity as the Distribution/Collection Supervisor.
Motion for summary judgment [#40], Exhibit B (Johnston Deposition), 83:5-12. Mr.
Johnston responded: “Yes, while I was a district resident also, but I - what I had to
discuss with them was from distribution/collection supervisor, yes.” Johnston
Deposition, 83:10-12. Mr. Johnston felt it was his duty as an employee of the district to
advise the board about what he perceived to be the loss of money on the four projects
he cited to the board. Johnston Deposition, 107:2-6. Additional evidence concerning
Mr. Johnston’s role at this meeting, including Mr. Johnston’s affidavit, is discussed
below.
On October 14, 2010, Wendy Weiman, an engineer employed by the district,
presented to Mr. Sperry a written complaint concerning Mr. Johnston. Ms. Weiman
complained of a number of inappropriate behaviors displayed by Mr. Johnston in the
work place. On October 19, 2010, Mr. Sperry gave Mr. Johnston a written warning for
insubordinate conduct and other conduct in violation of the district’s policies. A short
time later, Mr. Sperry and Mr. Jeschke spoke to Mr. Johnston about the behavior he
exhibited on November 2, 2010, behavior which Mr. Sperry felt was inappropriate.
In mid-November of 2010, the district’s Board of Directors hired Mountain States
Employers Council (MSEC) to conduct an investigation into the allegations raised by
Ms. Weiman in her written complaint of October 14, 2010. The MSEC investigator,
Monica Aldridge, interviewed 16 current and former district employees, including Mr.
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Johnston and Ms. Weiman. On December 8, 2010, Ms. Weiman issued a report
describing her investigation and her conclusions. Ms. Aldridge concluded that Mr.
Johnston engaged in 17 separate instances of inappropriate conduct. Based on this
report, the district’s Board of Directors directed Mr. Sperry to terminate Mr. Johnston’s
employment. Mr. Johnston’s employment was terminated on December 15, 2010.
According to Mr. Johnston, most of the claims that he behaved inappropriately
are incorrect or, in some cases, his comments and behavior were misinterpreted. He
claims Ms. Weiman’s complaints were an effort by Ms. Weiman to save her job at the
expense of Mr. Johnston’s job. Mr. Johnston asserts that the district’s engineers
believed that Mr. Johnston was behind an effort to have their positions terminated. In
Mr. Johnston’s view, the engineers were convinced that Mr. Johnston was the person
who complained to the board about the engineering department, causing the
termination of Mr. Jeschke and the loss of Ms. Weiman’s full-time position. In
November 2010, the board changed Ms. Weiman’s full-time position to a part-time
position.
Mr. Johnston says his termination was motivated by the desire of Mr. Sperry and
Ms. Weiman to retaliate against Mr. Johnston because Mr. Johnston was seen as
having caused Mr. Jeschke’s termination. He claims the board ordered the termination
of his employment to cover its malfeasance in office.
Based on these facts, Mr. Johnston asserts two claims for relief in his complaint
[#38]. First, he asserts a claim under 42 U.S.C. § 1983, alleging that the defendants
terminated his employment in retaliation for his exercise of his First Amendment right to
free speech. Mr. Johnston claims the defendants retaliated against him based on his
“blowing the whistle” on district engineering projects that were not cost effective and on
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the illegitimacy of the district’s five year project to upgrade the district’s sewer system.
Second, Mr. Johnston asserts a state law claim for wrongful discharge in violation of
public policy. The defendants argue they are entitled to summary judgment on both of
the plaintiff’s claims.
IV. ANALYSIS
A. First Amendment Retaliation
Mr. Johnston’s First Amendment retaliation claim must be analyzed under the
standards established in Pickering v. Bd. of Educ., 391 U.S. 563 (1968) and Garcetti
v. Ceballos, 547 U.S. 410 (2006). Under the Garcetti/Pickering test, I must examine
(1) whether the speech was made pursuant to an employee’s official duties; (2) whether
the speech was on a matter of public concern; (3) whether the government’s interests,
as employer, in promoting the efficiency of the public service are sufficient to outweigh
the plaintiff’s free speech interests; (4) whether the protected speech was a motivating
factor in the adverse employment action; and (5) whether the defendant would have
reached the same employment decision in the absence of the protected conduct.
Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192, 1202-1203 (10th
Cir. 2007).
The defendant relies on the proposition that an employee’s speech made as part
of the employee’s fulfillment of his or her duties as an employee does not receive First
Amendment protection. “(W)hen public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their communications from employer
discipline.” Garcetti, 547 U.S. at 421. “If the employee speaks pursuant to his official
duties, then there is no constitutional protection because the restriction on speech
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‘simply reflects the exercise of employer control over what the employer itself has
commissioned or created.’” Brammer-Hoelter, 492 F.3d at 1202 (quoting Garcetti,
547 U.S. at 422).
As noted above, when Mr. Johnston reported to the board his opinion that four
engineering projects were not cost effective and his opinion that the five year upgrade of
the district’s sewer system was not cost effective, he perceived himself to be acting as
the Distribution/Collection Supervisor for the district under a duty to advise the board
about what he saw as a loss of money on these projects. This perception is consistent
with other facts evidenced in the record outlining the duties of the Distribution/Collection
Supervisor and all employees of the district. In his deposition, Mr. Johnston was asked
about his allegation that he spoke to the board in his role as a resident of the district
concerned about the board’s wasteful use of money. In essence, Mr. Johnston claimed
he spoke to the board as both an employee of the board and as a resident of the North
Table Mountain Water and Sanitation District. Johnston Deposition, 99:13 - 106:25.
Mr. Johnston submitted an affidavit in support of his response to the motion for
summary judgment. In his affidavit, he says he did not have the authority as the
Distribution/Collection Supervisor to appear before the board. Johnston Affidavit [#48],
¶ 14. Contrary to his deposition testimony, he says in his affidavit that he appeared
before the board on September 28, 2010, as a resident and member of the district.
Johnston Affidavit [#48], ¶¶ 14 - 15. In his response to the motion for summary
judgment, Mr. Johnston argues that he met with the board on September 28, 2010 “in
his capacity as a citizen of the District.” Response [#47], p. 4 (emphasis in original).
On this point, Mr. Johnston’s affidavit contradicts directly his deposition
testimony. Although an affidavit that conflicts with the affiant’s prior sworn statements
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cannot be disregarded summarily, a court may disregard an affidavit that is nothing
more than an attempt to create a sham issue of fact. Franks v. Nimmo, 796 F.2d
1230, 1237 (10th Cir.1986). The reason for such a rule is clear: “[T]he utility of
summary judgment . . . would be greatly undermined if a party could create an issue of
fact merely by submitting an affidavit contradicting his own prior testimony.” Id.
Factors relevant to the existence of a sham fact issue include
whether the affiant was cross-examined during his earlier testimony,
whether the affiant had access to the pertinent evidence at the time of his
earlier testimony or whether the affidavit was based on newly discovered
evidence, and whether the earlier testimony reflects confusion which the
affidavit attempts to explain.
Id. None of these factors pertain to Mr. Johnson’s revision of his testimony as reflected
in his affidavit. Therefore, I rely on Mr. Johnston’s deposition testimony to determine
what the evidence in the record shows concerning the role in which Mr. Johnston was
operating when he appeared before the board on September 28, 2010.
Viewing the evidence in the record in the light most favorable to Mr. Johnston,
Mr. Johnston was acting as both an employee of the district and as a resident and
member of the district when he met with the board on September 28, 2010. In this
hybrid circumstance, I conclude that the rule in Garcetti controls. When Mr. Johnston
made statements to the board on September 28, 2010, and at other times during his
employment with the district, the statements were made as part of his official duties as
an employee. The constitution does not insulate these statements from discipline by
the board. Garcetti, 547 U.S. at 421. Given this law, the defendants are entitled to
summary judgment on Mr. Johnston’s First Amendment retaliation claim.
B. Wrongful Discharge in Violation of Public Policy
The defendants assert that the Colorado Governmental Immunity Act (CGIA)
8
bars the plaintiff’s state law wrongful discharge claim. Under §24-10-106(1), C.R.S.
A public entity shall be immune from liability in all claims for injury which lie
in tort or could lie in tort regardless of whether that may be the type of
action or the form of relief chosen by the claimant except as provided
otherwise in this section.
Suits against public employees or officials are addressed in §24-10-118(2)(a), C.R.S.
A public employee shall be immune from liability in any claim for injury,
whether brought pursuant to this article, section 29-5-111, C.R.S., the
common law, or otherwise, which lies in tort or could lie in tort regardless
of whether that may be the type of action or the form of relief chosen by a
claimant and which arises out of an act or omission of such employee
occurring during the performance of his duties and within the scope of his
employment unless the act or omission causing such injury was willful and
wanton...
Defendant North Table Mountain Water and Sanitation District is a public entity
and defendant Bart Sperry is sued in this case as an employee of the district. Mr.
Johnston’s claim of wrongful discharge in violation of public policy is a claim in the
nature of a tort claim. None of these propositions is disputed by the parties. Mr.
Johnston contends the waiver of immunity stated in §24-10-106(1)(f), C.R.S. is
applicable to his state law claim against the district and Mr. Sperry. In relevant part, that
statute states the waiver as follows:
Sovereign immunity is waived by a public entity in an action for injuries
resulting from:
(f) The operation and maintenance of any public water facility [or] . . .
sanitation facility . . . by such public entity;
The plaintiff bears the burden of proof as to whether the defendants’ immunity has been
waived under the CGIA because immunity concerns the subject matter jurisdiction of
the court. See Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo.1997);
Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993).
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“(T)he [CGIA] requires that exceptions to governmental immunity be interpreted
narrowly in order to avoid imposing liability not specifically provided for in the statute.”
City and County of Denver v. Gallegos, 916 P.2d 509, 510 (Colo.1996). The
Colorado Court of Appeals has found that “sovereign immunity is waived only if the act
or omission relates to the purpose of the facility.” Richland Development Co. v. East
Cherry Creek Valley Water & Sanitation District, 934 P.2d 841, 843 (Colo.
App.1996). Under the CGIA, a “‘Public water facility’ means structures and related
apparatus used in the collection, treatment, or distribution of water for domestic and
other legal uses that is operated and maintained by a public entity.” §24-10-103(5.7).
The CGIA defines “operation” as “the act or omission of a public entity or public
employee in the exercise and performance of the powers, duties, and functions vested
in them by law with respect to the purposes of any ... public water [or] sanitation ...
facility.” §24-10-103(3)(a), C.R.S. The purpose of a water facility is to supply water for
domestic and other public and private purposes by any available means and to provide
necessary reservoirs, treatment works, and facilities. §32-1-104(18), C.R.S.; Richland
Dev. Co., L.L.C. v. E. Cherry Creek Valley Water & Sanitation Dist., 934 P.2d 841,
844 (Colo. Ct. App. 1996) The purpose of a sanitation facility is to provide a sewer
system for public use. Id.
Generally, actions by a public entity or employee that are indirectly related to the
purpose of the facility, the operation of the facility, and the legal duties of the entity
concerning the facility are not within the limited waivers of sovereign immunity under the
CGIA. For example, in Richland Development, the court determined that the alleged
negligence of a water and sanitation district in representing the number of water and
sewer taps available in the district did not fall within the waiver of sovereign immunity for
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the operation and maintenance of a public water or sanitation facility. Richland
Development, 934 P.2d at 844. The court found that the functions of “record keeping
and responding to inquiries as to the availability of water and sewer taps are, at most,
ancillary to” the statutory purposes of a water and sanitation district. Id. Given that
ancillary relationship, the court concluded that the alleged negligence did not fall within
the waiver of sovereign immunity stated in §24-10-106(1)(f), C.R.S. Id.
Similarly, in Howard Through Young v. City & Cnty. of Denver, 837 P.2d 255,
257-58 (Colo. Ct. App. 1992), the court found that the alleged wrongful actions of a
sheriff did not fall within the waiver of sovereign immunity for the operation of a jail. At
issue were claims the sheriff was negligent in investigating a prisoner's criminal history,
in making a bond recommendation to the judge, and in executing arrest warrants.
The Sheriff is the keeper of the jail and is responsible for maintaining the
jail for the detention, safekeeping, and confinement of persons lawfully
committed. Sections 17-26-101 and 17-26-102, C.R.S. (1986 Repl.Vol.
8A). The Sheriff's duties in keeping the jail are to receive and safely detain
every person duly committed thereto. The Sheriff specifically “shall not,
without lawful authority, let out of such jail, on bail or otherwise, any such
person.” Section 17-26-103, C.R.S. (1991 Cum.Supp.).
Id. at 257. The court concluded that bond investigations and recommendations and the
execution of search warrants were not included in the duties tied to the operation of the
jail. Id. at 257 - 258. As a result, the court found that the alleged negligent actions of
the sheriff were not within the waiver of sovereign immunity for the operation of a jail.
Id.
In Dobson v. City & Cnty. of Denver, 81 F. Supp. 2d 1080, 1088 (D. Colo.
1999), aff'd, 13 F. App'x 842 (10th Cir. 2001), the court addressed a claim against the
Denver Waste Water Management Division (WWMD). A WWMD employee shot and
killed a security guard working at a WWMD facility. The mother of the guard and the
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personal representative of the guard’s estate filed suit against the WWMD asserting,
inter alia, state law tort claims. The Dobson court held that the plaintiffs’ state law
claims did not fall within the waiver of sovereign immunity for the operation and
maintenance of a public water facility or sanitation facility, as stated in §24-10-106(1)(f),
C.R.S. Id. at 1087 - 1089. The court concluded that “maintaining a safe work
environment by diligently following personnel policies is at best ancillary to the purpose
of operating a sanitation facility and therefore barred by the [CGIA].” Id. at 1089.
In the present case, Mr. Johnston’s state law claim concerns the district’s
exercise of its authority to hire and fire employees. Similar to Richland Development,
Howard, and Dobson, the personnel policies and practices of the North Table
Mountain Water and Sanitation District are related only obliquely to the purposes,
operations, and duties of the district as a public water and sanitation facility. Given that
oblique relationship, I conclude that the actions of the district and Mr. Sperry, as
evidenced in the record, do not fall within the waiver of sovereign immunity in §24-10106(1)(f), C.R.S. Under §24-10-106(1), C.R.S., the district is shielded from liability on
Mr. Johnston’s state law claims in this case.
V. CONCLUSION & ORDERS
Viewing the evidence in the record in the light most favorable to Mr. Johnston, I
conclude that the defendants are entitled to summary judgment on Mr. Johnston’s two
claims. First, under the Garcetti/Pickering test, Mr. Johnston cannot assert a claim
against the defendants for First Amendment retaliation. Second, under the CGIA, the
defendants are immune from Mr. Johnston’s state law claim.
THEREFORE, IT IS ORDERED as follows:
1. That the Defendants’ Motion for Summary Judgment [#40] filed May 9,
12
2013, is GRANTED;
2. That the claims asserted by the plaintiff, Kevin Johnston, in his complaint
[#38] are DISMISSED with prejudice;
3. That JUDGMENT SHALL ENTER in favor of the defendants, North Table
Mountain Water and Sanitation District and Bart Sperry, against the plaintiff, Kevin
Johnston;
4. That the defendants are AWARDED their costs to be taxed by the clerk of the
court under FED. R. CIV. P. 54(d)(1) and D.C.COLO.LCivR 54.1;
5. That the Expedited Unopposed Motion for Additional Time in Which to
File Joint Exhibit List and Deposition Designations [#51] filed July 3, 2013, is
DENIED as moot;
6. That the trial set to begin August 19, 2013, at 8:30 a.m., is VACATED; and
7. That this case is DISMISSED.
Dated August 9, 2013, at Denver, Colorado.
BY THE COURT:
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