McDonald v. Wise et al
ORDER granting 14 Defendant's Motion to Dismiss and Plaintiffs claims, against each and every Defendant however named, are DISMISSED in their entirety, by Judge John L. Kane on 5/13/2013.(ervsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-2996-JLK
AMBER MILLER, in her official capacity as the Mayor’s Press Secretary and in her
MICHAEL HANCOCK, in his official capacity as Mayor and in his individual capacity,
CITY AND COUNTY OF DENVER,
ORDER ON DEFENDANTS’ MOTION TO DISMISS (Doc. 14)
Former Denver mayoral political appointee Wayne McDonald filed suit after being
accused of sexually harassing a Denver police officer and fired as a result. The appointee
claims the allegations were false and that his termination, which occurred before any
opportunity for a hearing to clear his name, constituted a breach of his employment contract
and violated his due process rights under the Colorado state and federal constitutions.
Plaintiff also asserts a state law privacy claim under the Colorado Open Records Act
premised on the disclosure of the sexual harassment allegations to the press. Defendants
move to dismiss. I grant the Motion.
I have original jurisdiction over this matter based on Plaintiff’s 42 U.S.C. § 1983
constitutional due process claim under 28 U.S.C. § 1331. For purposes of the instant
Motion, I exercise supplemental jurisdiction over Plaintiff’s state law claims pursuant to 28
U.S.C. § 1367(c)(3).
During the time relevant to his claims and until his termination in May or June of
2012, Plaintiff Wayne McDonald served as a paid advisor and projects manager for Denver
mayor Michael Hancock. Denver police officer Lesli Branch Wise was a member of the
Mayor’s security detail. Am. Compl. ¶ 21. As McDonald traveled around the city with
Hancock, he “would see and interact with Wise.” Am. Compl. ¶ 23. McDonald
acknowledges he and Wise “engaged in conversations ranging from workplace issues,
sporting event, and personal matters,” on the phone and in person, over a period of time
from July 2011 to March 2012. Id. ¶¶ 23-34.
On May 18, 2012, McDonald was called to a meeting where he was told Wise had
accused him of sexual harassment. Am. Compl. ¶ 37-38. He denied the allegation (id. ¶
39) and agreed to cooperate in an investigation by Mountain Sates Employer’s Council (¶¶
40-43). Three days later, the Mayor’s deputy chief of staff, Stephanie O’Malley, asked
McDonald to meet her at a local restaurant. There, O’Malley and Denver City Attorney
I note that McDonald originally named the accusing Denver police officer, Lesli Branch Wise,
as a Defendant in this lawsuit, asserting a claim for defamation against her. I dismissed that claim
in a separate written Order dated May 1, 2013. See Order (Doc. 21). The remaining Defendants
are Denver Mayor Michael Hancock, the Mayor’s press secretary, Amber Miller, and the City and
County of Denver itself.
Doug Friednash referred to the sexual harassment allegations and told McDonald that based
on them, he would have the option of resigning his position or being fired. Id. at ¶¶ 45-46.
McDonald again denied he sexually harassed Wise and asked for an opportunity to defend
against the claims, stating an investigation would reveal that Wise had “lied.” ¶¶ 47-48.
Instead, Friednash told McDonald that he was fired. ¶ 49. McDonald received nothing in
writing about the allegations and was given no hearing or other opportunity to address the
accusations until several months later, when he appealed the denial of his claim for
unemployment benefits. Am. Compl. ¶¶ 51-53, 69-76.
In mid-June 2012, news reporters began contacting McDonald requesting interviews
regarding his termination from the Mayor’s office indicating, to McDonald, that they had
“heard rumors he was fired for sexual harassment.” Am. Compl. ¶ 54. On June 20, through
his attorney, McDonald notified the City Attorney’s Office of certain Colorado Open
Records Act (CORA) requests for information that had been made by the press seeking
information regarding his termination, and informed the City Attorney’s Office that he
opposed the release of any and all protected information. ¶ 55. Notwithstanding this
request, McDonald claims that on June 21, 2012, the Mayor’s press secretary – Defendant
Amber Miller – “sent email(s) and/or other forms of communications to news reporters
informing them that McDonald was fired because of ‘serious allegations of misconduct.’”
Am. Compl. ¶ 56. According to McDonald, the Denver Post and other local news media
outlets then published stories “stating McDonald was fired because of ‘serious allegations
of misconduct’” and, according to McDonald, specifying that the allegations “concern[ed]
a complaint filed by an unnamed female Denver police officer that McDonald sexually
harassed her.” ¶ 57.
McDonald filed the instant lawsuit in federal court on November 14, 2012, naming
Ms. Wise, Mayor Hancock, Amber Miller, and the City and County of Denver as
Defendants. The operative Amended Complaint articulates three claims for relief against
the remaining Defendants: (1) a claim against Amber Miller for “Violation of the Colorado
Open Records Act,” C.R.S. 24-72-204 et seq.; (2) a claim for breach of employment
contract against Mayor Hancock; and (3) a claim for “Violation of Due Process” against the
City and against Hancock and Miller in both their “official” and “individual” capacities.
As summarized below, the state causes of action fail on several grounds to state viable
claims for relief, and the due process claim is cluttered with erroneous and superfluous
concepts and buzzwords that confuse the issues and render meaningful analysis difficult.
Once cleared of the non-germane, the due process claim nevertheless fails to state a claim
because the statements attributed to the Mayor and his staff are not, under the facts alleged,
Plaintiff’s claims generally
To distill the essence of McDonald’s claims in this case, I must separate factual
allegations from conclusory assertions and excise legal theories that hold no water.2 Once
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) and Ashcroft v. Iqbal, 556
U.S. 662 (2009). In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to
cleared of its detritus, only a single claim under 42 U.S.C. § 1983 merits any serious
The obvious issues first, in summary form:
Plaintiff’s CORA Claim. As Defendants point out in their Motion to Dismiss, there
is no private right of action under the Colorado Open Records Act. See Shields v.
Shetler, 682 F. Supp. 1172, 1176 (D. Colo. 1988). The exclusive remedy for a
violation of the Act is criminal, in the form of a “fine of not more than one hundred
dollars, or by imprisonment in the county jail for not more than ninety days, or
[both].” C.R.S. 24-72-206.
In response to this truism, McDonald recasts the claim in terms of the
“legitimate expectation” of privacy analysis for discovery disclosures under
Martinelli v. District Court In and For the City and County of Denver, 612 P.2d
1083, 1091-1094 (Colo. 1980). See Br. (Doc. 18) at 17 (“[e]ssentially, McDonald is
asserting a right to privacy in his confidential personnel records and basing this
privacy right . . . on the disclosure directions contained in [CORA]”). If that
analysis fails to fly, McDonald asks for leave to amend his complaint a second time
state a claim under Rule 8(a) pleading standards, plaintiff’s complaint is reviewed for a
determination of whether it “’contains enough facts to state . . . claim[s] that [are] plausible on
[their] face.’” See Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007)(quoting Twombly, 550 U.S. at 570 and Iqbal). “Facts,” under the Twombly standard, need
not be “detailed,” but must be “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly at 555. The plausibility requirement serves
“to weed out claims that do not (in the absence of additional allegations) have a reasonable
prospect of success.” See Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008).
“to bring these concerns under the Fourteenth Amendment or other appropriate legal
theory.” Pl’s Resp. to Mots. to Dismiss (Doc. 18) at 18-19 of 41.
The request is DENIED. Plaintiff has already asserted a Fourteenth
Amendment due process claim premised on allegations that Defendants “created and
disseminated a false and defamatory impression about McDonald [by making the
disclosures McDonald claims violated Open Records Act prohibitions] in
connection with the termination of [his] employment” (Am. Compl ¶ 109) and
amendment to add another Fourteenth Amendment claim to that effect would be
redundant. Moreover, a Martinelli-based privacy interest is recognized in the
context of discovery and relates to the disclosure of actual personnel files, neither of
which applies or is germane to the facts alleged in this case. See Denver
Policemen’s Protective Ass’n v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981).3
Accordingly, the CORA claim is DISMISSED, and because any reasonable
inquiry by counsel before signing the pleadings in this case would have revealed the
In Lichtenstein, the Tenth Circuit adopted the Martinelli test for determining whether
information contained in personnel files is of such a highly personal or sensitive nature that it falls
within the zone of constitutionally recognized confidentiality. In applying the test, the court must
consider (1) if the party asserting the right has a legitimate expectation of privacy, (2) if disclosure
serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner.
660 F.2d at 435. Only data of a “highly personal or sensitive nature” may fall within the zone of
confidentiality. Id. The instant case did not involve personnel files or their disclosure, and the
information released – that a public employee like McDonald was terminated amid “allegations of
serious misconduct” – is not sufficiently personal or sensitive to create a constitutional expectation
of privacy in any event. See Flanagan v. Munger, 890 F.2d 1557, 1571 (10th Cir. 1989)(“We are
unwilling to hold that a reprimand of a public employee [for off-duty conduct believed to
undermine public confidence in police department] is of a highly personal nature and creates a
constitutional expectation of privacy.”)
lack of any private right of action under C.R.S. 24-72-204, counsel is put on notice
that her actions in signing the Complaint and Amended Complaint to include the
claim may be subject to sanctions under Fed. R. Civ. P. Rule 11.
Breach of Contract Claim. With respect to the breach of contract claim,
McDonald’s complaint fails to meet the Iqbal/Twombly plausibility standard for
pleading. The complaint makes only conclusory allegations that McDonald had a
valid and binding employment contract with the City and fails to allege any facts to
support the contention that such a contract was breached. Irrespective of these
deficiencies, McDonald fails to state a claim for breach of contract in the complaint.
In Colorado, local government employees are at-will employees who “hold
their posts at the pleasure of the proper local government authorities and can be
dismissed without cause, in the absence of restrictions or limitations provided by
law.” Darr v. Town of Telluride, Colo., 495 F.3d 1243, 1252 (10th Cir. 2007). The
Denver City Charter specifically provides that “up to fifty employees may be
appointed to serve at the pleasure of the Mayor.” Denver City Charter §9.1.1(E)(iv).
McDonald concedes he received an “appointment letter” from the Mayor on July 11,
2011, “designat[ing] and appoint[ing]” him to serve “at the pleasure of the Special
Assistant to the Mayor effective July 18, 2011.” Am. Compl. ¶ 15.
Notwithstanding this clear language, McDonald contends the letter evinces a
binding contract of employment because it memorialized the Mayor’s “promise” to
“appoint McDonald to a City job” if McDonald agreed to “resign his private sector
corporate executive job, forego other employment opportunities, and work for the
City.” Am. Compl. ¶ 96. McDonald offers no legal analysis or authority to support
his contention that the letter was anything more than a solemnization of the power
available to Hancock under the Denver City Charter. The allegations are
insufficient to overcome the clear language and import of either the Charter or the
common law concept of “at-will appointment” discussed in Darr.
Alternatively, McDonald alleges Hancock made an oral promise to employ
him for the duration of Hancock’s term as Mayor. Such a promise does not, without
more, evince a binding contract and would be void under the statute of frauds in any
event. The Mayor’s term in office is by definition under Colorado law for more than
one year, therefore any contract “for the duration of his term” would have to be in
writing to be valid. See Colo. Rev. Stat. §38-10-124(1)(a).
McDonald’s allegations fail, as a matter of law, to give rise to a binding
contract of employment that could have been breached by the Mayor’s actions in
firing him at will. The breach of contract claim is DISMISSED.
The violation of rights “guaranteed by 42 U.S.C. § 1983, the Fourteenth
Amendment to the United States Constitution, and Article II of the Colorado
Constitution” (Am. Compl. ¶ 116)
I move on to McDonald’s final claim for relief, which he characterizes as
seeking relief for the violation of rights “guaranteed by 42 U.S.C. § 1983, the
Fourteenth Amendment to the United States Constitution, and Article II of the
Colorado Constitution.” Am. Compl. ¶ 116. The characterization is overbroad and
misleading to the extent it is suggestive of three theories of relief.
Section 1983 “guarantees” no rights. Gaines v. Stenseng, 292 F.3d 1222,
1225 (10th Cir. 2992)(§ 1983 “‘is not itself a source of substantive rights, but merely
provides a method for vindicating federal rights elsewhere conferred’”)(quoting
Graham v. Connor, 490 U.S. 386, 393-94 (1989)). Colorado law, moreover,
contains no statutory equivalent of 42 U.S.C. § 1983 and there is no implied private
right of action to enforce due process rights under Article II of the Colorado
Constitution. See Walker v. Board of Trustees, Regional Transp. Dist., 76 F.
Supp.2d 1105, 1112 (D. Colo. 1999). Accordingly, McDonald has one claim,
brought under 42 U.S.C. § 1983, for the alleged deprivation of his liberty/privacy
interests under the Fourteenth Amendment of the United States Constitution.
“Acting ‘under color of law.’ Plaintiff’s Complaint and Amended Complaint are
replete with references to Defendants’ actions – whether in disclosing confidential
information, making defamatory statements, or breaching his employment contract –
being taken “under color of law.” The only claim to which action “under color of
[state] law” is relevant is McDonald’s federal claim under § 1983, and the repeated
incantations of it elsewhere are confusing.
Section 1983 provides individuals a remedy against any “person who, under
color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory, subjects . . . any citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws . . . .” 42
U.S.C. § 1983. Municipalities, by definition, act “under color of [law],” so the
allegation is superfluous as to McDonald’s claim against the City. The allegation is
also superfluous when it is used to describe actions taken by Miller or Hancock in
their “official” capacities. Claims against municipal officials acting in their
“official” capacities are the same as an action against the municipality itself. See
Watson v. City of Kansas City, 857 F.2d 690, 695 (10th Cir.1988)(suits against a
municipality and suits against municipal officials acting in their “official” capacities
are the same). As a result, there is no need for the “under color of state law”
allegations vis á vis the “official” acts of Hancock or Miller.
Finally, there is no specific due process violation alleged against Defendant
Miller in her individual capacity. McDonald’s allegations against Miller are for her
disclosure, in her official capacity as the Mayor’s press secretary, of allegedly
private information to the press – the CORA/invasion of privacy claim. McDonald
asserts no allegations against Miller related to the decision to fire him or to deny
him any constitutionally required name-clearing hearing. Because McDonald
alleges no “affirmative link” between the alleged constitutional due process
violation and Ms. Miller, she is not a proper Defendant to the § 1983 claim in her
official or individual capacity as the Mayor’s press secretary. See Silver v. Primero
Reorganized School Dist., 619 F. Supp.2d 1074, 1093 (D. Colo. 2007)(Krieger,
J.)(citing McKay v. Hammock, 730 F.2d 1367, 1374 (10th Cir. 1984) and Rizzo v.
Goode, 423 U.S. 362, 371 (1976)).
We are left, then, for purposes of McDonald’s § 1983 claim, with one theory
of relief – a violation of McDonald’s Fourteenth Amendment due process rights –
against the City/i.e. the Mayor-in-his-official-capacity and the Mayor in his
individual capacity. I consider that claim under applicable Iqbal/Twombly pleading
Plaintiff’s § 1983 Claim.
Section 1983 imposes civil liability upon persons who, “under color of
any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects
[another] . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution . . . .” 42 U.S.C. § 1983. “The first inquiry in any § 1983 suit . . . is whether
the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’” Baker v.
McCollan, 443 U.S. 137, 140 (1979). If no constitutional right would be violated even if
plaintiff’s allegations were proven, then there is no necessity for further inquiries
concerning individual defendants’ qualified immunity from suit under Anderson v.
Creighton, 483 U.S. 635 (1987), or, in the case of municipal liability, whether the acts
complained of sound in respondeat superior or, as is necessary for liability to attach, are
fairly attributed to the municipality itself under Monell v. New York City Dept. of Social
Services, 436 U.S. 658 (1978). See Saucier v. Katz, 533 U.S. 194, 200-201 (2001).
As an initial matter, the constitutional deprivation at issue in this case is Defendants’
failure to provide McDonald with an adequate name-clearing hearing in connection with
allegations of “serious misconduct” that led to his termination. Because only the City or
City Defendants acting in their “official” capacities could have provided McDonald with
such a hearing, Mayor Hancock in his “individual capacity” could not have denied
McDonald due process and is therefore qualifiedly immune from suit. The question is
whether the allegations in the Amended Complaint support a plausible inference that
McDonald (1) was entitled to a constitutionally adequate name-clearing hearing and (2)
that the City (i.e., the Mayor in his “official” capacity) failed to provide him one.
To invoke due process protections under the Fourteenth Amendment, a plaintiff’s
allegations must show he was “depriv[ed] of interests encompassed by the Fourteenth
Amendment's protection of liberty and property.” Bd. of Regents of State Colleges v. Roth,
408 U.S. 564, 569 (1972). While damage to one’s reputation may be remediable under
state law as an injury in tort, it is insufficient by itself to establish a constitutionally
protected interest under the Fourteenth Amendment. Paul v. Davis, 424 U.S. 693, 701
(1976). In order to elevate an injury remediable under state tort law to one protected by the
constitution, it must be paired with some additional, “more tangible,” interest, such as
employment or other protected property interest. Id.
The interest invoked by McDonald here is his “property and/or liberty interests in
his good, name, reputation, honor and integrity,” Am. Compl. ¶ 108, which McDonald
claims were “infringed and violated with City officials and employees, including but not
limited to Hancock . . . created and disseminated a false and defamatory impression about
McDonald in connection with [his] termination . . . without providing McDonald a
hearing.” Id. ¶ 109. McDonald’s allegations are premised squarely on the Tenth Circuit’s
decision in Workman v. Jordan, 32 F.3d 475, 480 (10th Cir.1994), which recognized a law
enforcement officer’s liberty interest in his good name and reputation in the context of his
termination from the Weld County Sheriff’s Department amid allegations of sexual
While the “additional interest” in Workman was a constitutional property interest in
continued employment, that level of interest is not, as Defendants suggest, a prerequisite
for triggering a liberty interest in an employment termination context.4 The Davis
requirement that “reputational harm be entangled with ‘some more tangible interests’” is
met when any terminated plaintiff can show that his termination “at least aggravated his
[reputational damage].” McGhee v. Draper, 639 F.2d 639, 643 & n. 2 (10th Cir. 1981)(cited
favorably in Workman at 480). Accordingly, McDonald’s § 1983 claim is not precluded
simply because his employment was at-will or “at the pleasure” of the Mayor. However,
McDonald must still plead facts plausibly demonstrating an infringement or deprivation of
this liberty interest by the government or government actor.
In Workman, the plaintiff law enforcement officer was specifically determined to have had
a constitutionally protected property interest in his continued employment at the time of his
termination, which interest was deemed to satisfy the Davis “more tangible interest” requirement.
32 F.3d at 479-80 (county policy providing employees could only be terminated “for cause”
created a “state-defined [and therefore constitutionally protected] property interest in plaintiff’s
employment with the Sheriff’s Department” which, when “affect[ed]” by the officer’s
accompanying reputation injury, gave rise to a protected “liberty interest” ). Here, I have
specifically determined McDonald could have no protected property interest in his continued
employment by the Mayor, based on his own admission and Denver City Charter language
unequivocally stating he was employed in an appointed position at-will and “at the pleasure” of
To be actionable as infringements on Fourteenth Amendment liberty interests,
allegedly defamatory statements must first be found to have impugned the good name,
reputation, honor, or integrity of the employee. Workman, 32 F.3d at 480 (citing Roth, 408
U.S. at 573). Second, the statements must be false. Id. (citing Codd v. Velger, 429 U.S.
624, 628 (1977), Flanagan, 890 F.2d at 1571-72, and Wulf v. City of Wichita, 883 F.2d
842, 869 (10th Cir.1989)). Third, the statements must occur in the course of terminating the
employee or must foreclose other employment opportunities. Id. Finally, the statements
must be published. Id. (citing Bishop v. Wood, 426 U.S. 341, 348 (1976)). These elements
are not disjunctive; all must be satisfied to demonstrate deprivation of the liberty interest.
Id. (citing Melton v. City of Oklahoma City, 928 F.2d 920 (10th Cir. en banc)(trial court
erred in instructing jury to find either stigmatization or loss of employment opportunities),
cert. denied, 502 U.S. 906 (1991)). Once a liberty interest is implicated, the due process
protections of the Fourteenth Amendment “are innervated” and plaintiff must demonstrate
he was not afforded an adequate name-clearing hearing. Id. at 480.
Here, the only published defamatory statements alleged are those of Amber Miller,
the Mayor’s press secretary, responding publicly to press inquiries on June 21, 2012
regarding McDonald’s termination, that he was “fired because of ‘serious allegations of
misconduct,’” and Mayor Hancock’s public confirmation the next day of “previous news
media reports that McDonald was fired for serious misconduct.” Am. Compl ¶ ¶ 56-57.
These statements are neither “intimate” or “personal,” nor can they be said to have been
false. McDonald was a public employee whose termination was a matter – as the press
inquiries attest – of public interest. See Flanagan, 890 F.2d at 1570-71 (unwilling to hold
that a reprimand of public employee is of a “highly personal” nature). The facts being
communicated to the press, moreover, were true: McDonald was terminated because of
“allegations of serious misconduct.” See Workman, 32 F.3d at 481 (letter of reprimand
repeating the charge of sexual harassment and reprinting evidence disclosed in
investigation did not establish “falsity,” even when officer was ultimately exonerated). See
also Melton, 928 F.2d 920, 928 (10th Cir. 1991)(repetition of a third party’s allegations is
not a false statement).
These failures alone doom McDonald’s § 1983 claim. Statements, made in response
to inquiries by the press, that a public employee and political appointee was terminated
based on allegations of “serious misconduct” cannot, without more, support a constitutional
liberty deprivation claim under 42 U.S.C. § 1983 or Workman v. Jordan. Even assuming,
for the sake of argument, that the statements were defamatory and impacted McDonald’s
tangible employment interests, McDonald still would have to allege facts sufficient to
demonstrate that he was denied an adequate name-clearing hearing. This, too, he has failed
First, McDonald contends he was entitled to a name-clearing hearing before he was
terminated, relying ostensibly on Workman and the fact the plaintiff there was provided
such a hearing. It is here the Court’s determination that Captain Workman enjoyed a
constitutionally protected property interest in his continued employment, and my
determination that McDonald was an at-will employee without such an interest, become
salient and defeat his argument. Were the facts in this case that McDonald could only be
fired for cause, then he may have been entitled to a pre-termination hearing or other formal
process related to Wise’s allegations. As it stands, it is not Wise’s statements but
Hancock’s and Miller’s that inform the relevant inquiry, and the hearing of which
McDonald was or was not deprived would not have been a pre-termination hearing but one
held after Defendants made their allegedly defamatory statements to the press.5
With regard to that post-termination hearing, the City contends any due process
requirements were met on September 24, 2012, when McDonald appeared before the
Unemployment Commission and was permitted to address the sexual harassment
allegations, confront the evidence the City had garnered in their investigation, and present
testimony of his own. I agree. According to McDonald, O’Malley testified at that hearing
and stated McDonald was fired “because he sexually harassed Wise.” (Am. Compl. ¶ 74.)
The City presented as evidence the tape recordings of two telephone calls Wise had placed
to McDonald and secretly recorded, and the hearing officer admitted the tape recordings as
evidence, agreeing to listen to them before rendering his decision. Id. McDonald concedes
I note the allegedly defamatory statements for purposes of McDonald’s § 1983 claim are
not Wise’s sexual harassment allegations that informed his May 2012 termination, but the
statements Miller and Hancock made to the press a month afterwards in June 2012. It is as to
those statements that McDonald would arguably have had the right to clear his name, and that
right, Defendants contend, was met by the unemployment hearing that took place in October 2012.
the hearing officer “provided McDonald an opportunity to explain the circumstances of his
interactions with Wise” (Am. Compl. ¶ 75) and that he, in turn, testified under oath that he
had not sexually harassed her. Id. On October 11, 2012, McDonald was “notified in
writing” that he had prevailed on his appeal, with the hearing officer “writing the
McDonald ‘is not at fault for this separation [and that] the claimant and the officer had a
close friendly relationship which was not romantic.’” Id. ¶ 76. Thus, based on McDonald’s
own allegations in his Complaint, the City contends its due process obligations were met.
McDonald does not deny the October unemployment hearing afforded him the
opportunity to clear his name, he simply argues it was too late. According to McDonald,
“the fundamental requirement of due process is the opportunity to be heard at a meaningful
time and in a meaningful manner,” and that in his case, this required a hearing “before he
was fired and before false and defamatory information about him was distributed to the
news media.” Br. (Doc. 18) at 33-34 (citing Mathews v. Eldridge, 424 U.S. 319, 333
(1976)). I have already rejected the argument, premised on Workman, that McDonald was
entitled to a pre-termination hearing because McDonald was an at-will political appointee
with no property interest in continued employment. With regard to the assertion that
McDonald’s hearing before the Unemployment Commission was constitutionally
inadequate, I reject that argument in this case. I decline to hold that in all cases where a
name-clearing hearing is constitutionally mandated that an unemployment hearing will
suffice, but find that McDonald’s October 24 hearing before the Unemployment
Commission was adequate to meet any due process interest he may have established under
the facts alleged in this case. See Welling v. Owens State Comm. Coll., 535 F. Supp.2d
886, 890 (N.D. Ohio 2008)(hearing before unemployment commission functioned as
adequate name-clearing hearing under Fourteenth Amendment).
McDonald fails to state a cognizable claim under 42 U.S.C. § 1983 for a deprivation
of any “liberty/property interest” that could be made out on the facts alleged in his
Amended Complaint. For this reason, and for the reasons previously stated, Defendants’
Motion to Dismiss (Doc. 14) is GRANTED and Plaintiff’s claims, against each and every
Defendant however named, are DISMISSED in their entirety.
Dated this 14th day of May, 2013, at Denver, Colorado.
s/John L. Kane
SENIOR U.S. DISTRICT JUDGE
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