McDonald v. Wise et al

Filing 114

ORDER. Ordered that the Motions for Judgment on the Pleadings 88 , for Summary Judgment 92 , and to Strike Deposition Changes 110 are all DENIED. Within the next two weeks or on or before March 9, 2016 the parties shall CONFER and call in jointly to chambers to set this matter for Pretrial Conference. Signed by Judge John L. Kane on 02/29/16.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-2996-JLK
WAYNE MCDONALD,
Plaintiff,
v.
MICHAEL HANCOCK, in his official capacity as Mayor
and in his individual capacity, and
CITY AND COUNTY OF DENVER,
Defendants.
________________________________________________________________________
ORDER DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT/
JUDGMENT ON THE PLEADINGS
________________________________________________________________________
KANE, J.
This protracted wrongful termination dispute between the City and County of
Denver and former mayoral appointee Wayne McDonald is before me on remand from
the Tenth Circuit on a single deprivation of liberty interest claim under 42 U.S.C. § 1983.1
McDonald alleges Denver Mayor Michael Hancock “knowingly made false statements
about him to the public” when he confirmed to the press that McDonald had been
terminated amid allegations of “serious misconduct.” Am. Compl. (Doc. 77) at 2. Because

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McDonald’s original Complaint included a § 1983 property interest claim and a claim
for defamation against the co-worker whose sexual harassment allegations triggered the
investigation that lead to McDonald’s firing, but the Tenth Circuit affirmed my dismissal of the
property interest claim and the defamation claim has since been settled.

that statement was true – allegations of misconduct had been leveled at McDonald by a
coworker, an investigation was undertaken, and McDonald was terminated as a result – I
dismissed McDonald’s liberty interest claim based on McDonald’s failure to allege facts
sufficient to satisfy the “falsity” prong of the four-part test set forth in Workman v. Jordan
for stating such a claim. The Tenth Circuit reversed. Distinguishing between “the mere
reporting” of a false claim made by someone against a public employee and the
“adoption” of that claim as a basis for punitive action, the Court determined Mayor
Hancock’s statement to the press linking McDonald’s termination to “allegations of
serious misconduct” was sufficient to state a claim and trigger the right to a nameclearing hearing. The Court also ruled, as a matter of law, that the post-termination
unemployment compensation hearing afforded McDonald was not a constitutionally
adequate name-clearing hearing.
On remand, McDonald invokes “the law of the case” to argue the Tenth Circuit’s
ruling is dispositive on the question of liability. McDonald moves for judgment on the
pleadings and a determination that the only issue left for trial is the nature and amount of
damages. See Br. in Supp. of Pl.’s Mot. Jm. on the Pleadings (Doc. 89) at 5-6. Defendants
contend the Tenth Circuit’s analysis was conducted under a Rule 12(b)(6) pleading
standard, and deny it relieves McDonald of his normal burden of marshaling facts
sufficient to prove his claim by a preponderance of evidence. Arguing the facts adduced
in discovery fail under a Rule 56 standard to support McDonald’s claim, Defendants

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move for summary judgment (Doc. 92). I DENY both motions, addressing separately
Defendants’ related motion to strike the many substantive changes Plaintiff made to the
deposition transcript submitted in support of his brief in opposition to the Motion for
Summary Judgment (Doc. 110). This case will be set for a Pretrial Conference and trial
setting.
Discussion.
The Supreme Court recognizes that a state may abridge a liberty interest if, in
terminating or declining to renew an employment contract, it makes charges of dishonesty
or immorality or imposes “a stigma or other disability that foreclosed [an employee’s]
freedom to take advantage of other employment opportunities.” Board of Regents v. Roth,
408 U.S. 564, 573 (1972). The abridged interest may be remedied by affording the
aggrieved employee an opportunity to clear his name. The failure to provide such an
opportunity may entitle the employee to damages.
The Tenth Circuit delineates a four-part test that a plaintiff must satisfy to
demonstrate a deprivation of liberty:
First, to be actionable, the statements must impugn the good name,
reputation, honor, or integrity of the employee. Second, the statements must
be false. Third, the statements must occur in the course of terminating the
employee [and] must foreclose other employment opportunities. And fourth,
the statements must be published.
Workman v. Jordan, 32 F.3d 475, 481 (10th Cir. 1994), applied in Renaud v. Wyo. Dep’t
of Family Servs., 203 F.3d 723 (10th Cir. 2000) and Melton v. City of Okla. City, 928 F.2d

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920 (10th Cir. 1991)(clarifying the timing and effect of the statements in the third
Workman factor must exist in the conjunctive, rather than disjunctive as originally
articulated in Workman).
In reversing my ruling that McDonald had failed to plead facts demonstrating the
“falsity” prong of the Workman test, the Tenth Circuit rejected my determination that
Mayor Hancock’s statements could not have been “false” if McDonald really had been
fired as he alleged, based on those allegations. The Court cited Melton to distinguish
between “the mere reporting” of a false claim made by someone against a public
employee and the “adoption” of that claim as a basis for punitive action. “Even if the
Mayor only stated that Mr. McDonald was fired because of allegations of serious
misconduct,” the Court concluded, “his termination of Mr. McDonald due to the
allegations gives the false impression that Mr. McDonald did in fact commit serious
misconduct.” Slip op. at 12 (citing Melton, 928 F.2d at 930). Given McDonald’s further
allegations that he has been unable to find employment “because of media reports of his
misconduct,” the Court concluded “McDonald has sufficiently pled a deprivation of his
liberty interest” that should have triggered the right to a name-clearing hearing Id.
At issue is the preclusive effect of the Tenth Circuit’s conclusions on appeal.
Defendants focus on the Rule 12(b)(6) pleading standard the Court of Appeals applied to
McDonald’s allegations under the Melton/Workman liberty interest test to argue
McDonald must now support those allegations with evidence sufficient to survive

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summary judgment under Rule 56. Citing admissions made by McDonald in his
deposition and elsewhere, Defendants contend he cannot. McDonald, on the other hand,
argues the Mayor’s admission that he made statements to the press confirming that
allegations of “serious misconduct” had been made against McDonald and that he had
been terminated as a result, satisfy the Melton/Workman standard as applied by the Tenth
Circuit, entitling him to judgment as a matter of law.2 I disagree on both counts.
The Tenth Circuit’s conclusions were unequivocally based on a Rule 12(b)(6)
pleading standard where McDonald’s factual allegations were presumed true and all
inferences from them construed in his favor. These inferences included the determination
that being fired amid allegations of otherwise undisclosed “serious misconduct” was, in
fact, stigmatizing, and that “media reports” about McDonald’s termination were, in fact,
attributable to the Mayor and did, in fact, foreclose McDonald’s ability to find work.
Based on the facts adduced in discovery, it is clear that contrary inferences are also
possible.
A reasonable fact finder, for example, could find that the Mayor’s confirmation of
a statement that was factually true (allegations of misconduct had, in fact, been made)

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According to Mr. McDonald, Defendants’ admission that the Mayor publicly linked
McDonald’s termination to allegations of “serious misconduct” disposes of the liability question
because the circumstances triggered a right to a name-clearing hearing which, as the Tenth
Circuit conclusively determined, was not provided. See Br. in Supp. of Pl.’s Mot. Jm. on the
Pleadings (Doc. 89) at 5-6; see also 10/7/15 email from W. Sulton to T. Rice (Doc. 1113)(“given the Tenth Circuit’s decision and defendants’ subsequent admissions, I do not believe
that there is any basis for defendants’ [sic] to move for summary judgment . . . [t]his is a
damages case”).
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was not, as a factual matter, stigmatizing. See Melton, 928 F.2d at 928 (statements of
police department public relations officer to newspaper confirming that charges had been
made and investigation of the officer was being undertaken were, in fact, true and were
not stigmatizing). A jury may, in the context of trial, be persuaded that the use of the
“serious misconduct” rubric is not stigmatizing when it comes to an at-will appointee in
McDonald’s position. Facts learned in the investigation leading up to McDonald’s
termination may support an inference that McDonald was terminated for “misconduct”
wholly unrelated to the sexual harassment allegations reported in the media. The jury,
moreover, may reject McDonald’s contention that he has been unable to find
employment, or that it was the Mayor’s statement, rather than media reports sourced by
his attorney, that have foreclosed his ability to do so. In short, the Tenth Circuit’s ruling
was simply that the Mayor’s public confirmation, to the press, of the factually “true”
statement that McDonald had been accused of “serious misconduct,” done in the course
of terminating him, supports an inference that the Mayor stigmatized McDonald
sufficiently to foreclose his ability to find employment. Whether a fact finder will make
those necessary inferences in McDonald’s favor is a question for another day.
Because McDonald misapprehends the nature and impact of the Tenth Circuit’s
Rule 12(b)(6) rulings on appeal, I DENY his Motion for Judgment on the Pleadings (Doc.
88). I also DENY Defendants’ Motion for Summary Judgment (Doc. 92), based on my
determination that there are sufficient facts in the record from which to infer that the

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Mayor’s statements, made to the press in announcing McDonald’s termination, created a
sufficiently false and stigmatizing impression of misconduct that impacted his ability to
find employment and triggered a right to a name-clearing hearing that he did not get. The
parties’ dispute, in other words, is for a jury to decide.
Because my summary judgment ruling does not turn on disputes of fact raised or
manufactured through changes Mr. McDonald purported to make to his deposition
transcript, I also DENY Defendants’ Motion to Strike Deposition Changes (Doc. 110) as
moot. I agree with Defendants’ that McDonald’s errata sheet is a gross deviation from the
requirement that Rule 30(e) should be used sparingly to correct only non-material or
clerical errors.3 Rather than strike it, however, I will leave it intact where it may be used
at trial for impeachment or any other appropriate purpose.
Accordingly, the Motions for Judgment on the Pleadings (Doc. 88), for Summary

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The errata sheet changes yes answers to nos and vice versa, altering the substance and
meaning of answers to those that are sometimes diametric. For example, a question and answer
on pages 63-64 of the deposition transcript originally read as follows:
Q. (By Mr. Rice) Sure. Here’s my point, if someone read this article and they were
trying to find out what these allegations were about, and they came to the conclusions that
the allegations concerned acts of sexual misconduct on your part, they would have gotten
that from your lawyer, right?
A. Correct.
In the errata sheet (Doc. 110-2), this answer was changed to reflect Mr. McDonald’s “current
recollection,” which was:
A. No. News reporters contacted my lawyer to confirm statements by representatives of
the City and County of Denver that I was fired because I sexually harassed a co-worker.
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Judgment (Doc. 92) , and to Strike Deposition Changes (Doc. 110) are all DENIED.
Within the next two weeks – or on or before March 9, 2016 – the parties shall CONFER
and call in jointly to chambers to set this matter for Pretrial Conference.
Dated this 29th, day of February, 2016, at Denver, Colorado.

s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

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